CO
CR 2005/4 (traduction)
CR 2005/4 (translation)
Mercredi 13 avril 2005 à 10 heures
Wednesday 13 April 2005 at 10 a.m. - 2 -
8 The PRESIDENT: Please be seated. The sitting is open. I first give th
e floor to
Professor Corten.
COrR. TEN:
BASELESSNESS OF THE ARGUMENT OF CONSENT
Introduction: the subsidiary and limited nature of the Ugandan argument of consent
1. Thank you Mr.President. Mr. President , Members of the Court, to escape its
responsibility, Uganda relies on the argument of se lf-defence, which, as we saw yesterday, is
completely baseless. But Uganda also claims that the Congo accepted the presence of its troops on
certain parts of its territory, and that for this r eason it did not violate the prohibition on the use of
force. It is this argument I should like to address this morning.
2. Mr. President, Members of the Court, in a way Uganda is perfectly right: the Congo did
accept the presence of Ugandan troops on its territory. But what Uganda pretends to forget is that
this acceptance dates from 6September2002, and does not apply to the preceding period. On
6September2002, and not before, the Democratic Republic of the Congo and the Republic of
Uganda did indeed conclude a treaty, refe rred to as the Luanda Agreement, under which ⎯ and I
quote its Article 1, paragraph 4, a copy of which you will find as No. 27 in your judges’ folder:
“The parties agree that the Ugandan troops shall remain on the slopes of
Mt.Ruwenzori until the parties put in place security mechanisms guaranteeing
Uganda’s security, including training and coordinated patrol of the common border.”1
The Ruwenzori mountains can be found on the map in front of you. They constitute a quite
specific area, which, as we saw yesterday, runs along the common frontier between the Congo and
Uganda. Under the Luanda Agreement, the Ugandan troops present on the Congolese slopes of the
9 Ruwenzori provisionally remain in situ with the Congolese authorities’ consent. They may only be
stationed in a precisely determined area, the slopes of the Ruwenzori, and nowhere beyond.
3. The problem for Uganda’s argument is th at no such agreement was concluded before
6 September 2002 and that, moreover, there is no provision in the agreement suggesting that Congo
1
RU, Ann. 84. - 3 -
retroactively consented to the presence of Ugandan troops ⎯ even supposing this was legally
possible, which it was not. Between the beginning of August1998, which marks the start of the
Ugandan attack and occupation, and 6September2002, when th e Luanda Agreement was signed
and entered into force, Ugandan troops rema ined on Congolese territory without any legal
entitlement. A fortiori, it was without any form of consent that they attacked Congolese military
and civilians, committed all kinds of atrocities, and pillaged Congolese natural resources.
4. The Ugandan argument of consent is therefor e vain, but before demonstrating this to you,
I would stress the subsidiary and also extremely limited nature of this argument ⎯ as Uganda itself
admits.
5. The subsidiarity point first. In an attempt to justify its act of aggression, Uganda invokes
both self-defence and the Congolese Government’s consent to the presence of Ugandan troops.
Such a combination, as the Court will agree, is pr ima facie difficult to grasp. If a State genuinely
finds itself in a situation of self-defence, it clearly does not need the aggressor State’s agreement in
order for it to respond! But Uganda knows full well that it was not in a self-defence situation. As
its principal argument is thus likely to fail, it seeks to rely ⎯ subsidiarily ⎯ on the argument of the
Congolese authorities’ consent.
6. The consent argument is not just subsidiary, it is also very limited in scope, since it is only
invoked to justify very precise facts and covers ne ither the human rights violations, nor the illegal
exploitation of natural resources, nor even th e armed actions allegedl y conducted on Congolese
territory. In reality, it is only the peaceful sta tioning of Ugandan troops in the Congo which, still
according to the Ugandan scenario, is covered by the Congolese Government’s consent. This is all
10 purely theoretical, since what the Congo accuses Uganda of is not the peaceful stationing of a few
soldiers, but the massive invasion and ensuing occupation of its territory. So ⎯ and it is important
to stress this at the outset ⎯ theoretically, it is only a hypothetical peaceful stationing that could be
justified by the Ugandan argument. Even if accep ted, this argument would therefore not exonerate
Uganda of its responsibility for all the acts perpetrated by its armed forces.
7. Before I address this argument in detail, it must also be fully understood that it covers two
distinct periods, the former before and the latter after the entry into for ce of the Lusaka Ceasefire
Agreement on 11 July 1999. Hence, according to Uganda’s thesis: - 4 -
⎯ during the period before 11July1999, the Congolese consent was to the stationing of two or
three Ugandan battalions in the Ruwenzori mount ains, in the frontier zone separating the two
countries;
⎯ by contrast, during the period following the entry into force of the Lusaka Ceasefire
Agreement, Congolese consent was allegedly much broader, covering the stationing of all
Ugandan troops then in Congolese territory, not only in the Ruwenzori, but throughout the
Congolese territory then occupied.
8. Mr.President, Members of the Court, the Ugandan claims are at odds with reality, as I
shall now explain to you, dealing with these two periods in turn.
I. The Democratic Republic of the Congo did not consent to the presence of
Ugandan troops on its territory during the period from the
beginning of August 1998 to the entry into force of the
Lusaka Ceasefire Agreement
9. First then, Uganda never consented, forma lly or informally, to the presence of Ugandan
troops between the beginning of August1998 an d the entry into force of the Lusaka Ceasefire
Agreement.
Lack of formal consent
10. In formal terms first, Congo never concl uded a treaty under which it agreed that “the
Ugandan troops shall remain on the slopes of Mt. Ruwenzori . . .”, to quote the Luanda Agreement.
11 In its written pleadings, Uganda persists in invoking a Protocol, concluded on 27 April 1998, under
which “the two armies agreed to co-operate in order to insure security and peace along the common
border” 2. You will find these extracts as No. 27 in your judge’s folder. Incidentally, you will see
that “along the common border” means “along the common border”, not beyond it, whether at
Kisangani (some 650km from the frontier) or at Gbadolite (some 1,120 km away). Be this as it
may, even with a fair dose of imagination it is hard to understand how the two texts I have just
quoted can be equated. The former ⎯ the Luanda Agreement ⎯ contains clear, unambiguous
consent to the presence of Ugandan troops in a specific area. The latter ⎯ the Protocol of
2
CMU, Ann. 19. - 5 -
April 1998 ⎯ merely contains an obligation to co-opera te and implies that subsequent agreements
3
will determine when and how that co-operation will be implemented .
11. In its Rejoinder, Uganda attempts to get round this by calling on the testimony of an
official in its Ministry of Foreign Affairs, who claims to describe the circumstances in which the
Protocol was adopted 4. According to that Ugandan official , the purpose of the text was to allow
Ugandan troops to operate in the Congo, in particul ar in light of the circumstances then prevailing,
which indicated serious security problems along th e common border. As illustration, the Ugandan
official quotes the attack on Kichwamba Techni cal College, already referred to yesterday,
emphasizing its gravity. So the Kichwamba attack was supposedly decisive in terms both of
explaining how the Protocol came to be adopted and of interpreting it as Uganda seeks to do today.
12. Mr.President, Members of the Court, this argument is just not serious. First, because
there can obviously be no question of introducing a provision into the text of a treaty which is not
there, on the sole basis of the unilateral claim of one of the parties thereto. Second, because
patently the testimony of the Ugandan official is si mply a very clumsy attempt to rewrite history.
12 To see this, one has only to recall that the Kichwamba attack, as I pointed out yesterday, took place
on 8 June1998, and that the Protocol was concluded on 27 April of the same year, i.e. over
one-and-a-half months earlier. It is thus hard to see how the language of the Protocol could have
been inspired by this attack subsequent to it. The Democratic Republic of the Congo admits that it
is genuinely impatient to hear Uganda’s expl anation on this point. The Respondent produces a
statement, made under oath, according to which a text adopted in April was supposedly inspired by
events which took place in June of the same year. Uganda cannot have it both ways. Either this
witness, and the Respondent with him, is guilty of a serious lapse of memory. Or this testimony
was simply tailor-made for the purpose in hand. In either case, the statement should be ignored in
favour of the ordinary meaning of the terms of the April 1998 Protocol ⎯ a text which, with all due
respect to Uganda, does not contain any form of Congolese consent to the presence of Ugandan
troops inside the Congo.
3
RDRC, pp. 250-254, paras. 3.191-3.201.
4
RU, pp. 42-44, para. 91. - 6 -
13. For Uganda there is thus no escaping an objective fact: there was no treaty providing it
with a legal basis that would legitimize the presence of its troops in the Democratic Republic of the
Congo from August 1998.
The absence of informal consent
14. It is doubtless in order to evade this conclusion that Uganda seeks at the same time to
claim that it received the informal consent of the Congolese authorities 5.
15. Mr. President, the Congo has never denied that, for a period of time, it allowed Ugandan
soldiers to operate occasionally on its terr itory, following the accession to power of the
Government of Laurent-Désiré Kabila. This tolerance is readily explicable, if it is remembered that
the Ugandan army had actively contributed to th e assumption of power by that Government, and
that the Congo itself was at that time experienci ng serious security problems. But this tolerance
ended on 27 July 1998, when President Kabila demanded the withdrawal of Rwandan troops, while
13 pointing out that that marked, and I quote the exact terms of the statement, “the end of the presence
of all foreign military forces in the Congo” 6. From that date, no foreign forces could any longer
claim to be remaining on Congolese territory with the consent of the Congolese authorities.
16. It is true, and Uganda places great emphasis on this point 7, that President Kabila did not
on 27July1998 explicitly refer to the few Uganda n soldiers who were then present in Congolese
territory in the context of co-operation aimed at maintaining security in the Ruwenzori Mountains.
However, this omission is perfectly comprehensible . It was above all at that time Rwandan troops
who were present in the Congo and who threatened the Government in power, and it was therefore
those troops whom Presiden Ktabila particularly wished to see withdrawn. If
Laurent-Désiré Kabila did not explicitly mention the Ugandans, it was both because the latter were
at that time very few in number in the Congo and because it would have been tactless to treat them
in the same way as the Rwandans who, in the pr evailing circumstances, were perceived as enemies
suspected of seeking to overthrow the régime. The omission is explained, therefore, by reasons of
5Ibid., pp. 128-129, paras. 307-308.
6
MDRC, pp. 60-61, para. 2.11.
7RU, pp. 45-46, paras. 95-97. - 7 -
diplomacy, but it does not at all mean that, by c ontrary implication, consent was given for the
continued presence of the few Ugandan troops then on Congolese territory.
17. Uganda replies, however, that the stat ement of 27July is ambiguous and that the
8
withdrawal of the consent previously granted is therefore not clear . Mr.President, Members of
the Court, if it had only been a matter of that statement some doubt might have persisted. But such
doubt, assuming that it ever existed, was totally and definitively dispelled by several statements,
including statements by PresidentKabila himself, in which the Congolese authorities explicitly
accused Uganda of aggression. Those statements began to appear from 6August1998 onwards,
when it became clear that Ugandan troops were pa rticipating in the aggression and that the policy
of appeasement had no further chance of bearing fruit 9. An Annex to the Ugandan
Counter-Memorial shows, moreover, that the Uga ndan authorities were fully aware of the charges
14 made against them by the Congo as early as the Victoria Falls Summit held on 7 and
8 August 1998 10. Again, on 13August the highest authorities of the Congo explicitly requested
that the United Nations and the OAU take measures to ensure the “immediate withdrawal of both
11
Rwandan and Ugandan troops from the Congolese territory” in accordance with international
law. In another document, dated 19 August, the Representative of the Congo to the United Nations
refers to “the genocidal purposes of the Rwandan and Ugandan aggressors and their deliberate
intention to violate the relevant provi sions of international humanitarian law” 12. A memorandum
sent to the United Nations on 31August also denounces “an aggression by the regular armies of
13
Rwanda and Uganda” .
18. Mr. President, Members of the Court, can Uganda seriously claim that it still considered
itself welcome or invited on Congolese territory, at the very time that the Congo was officially
demanding its withdrawal and describing it as an aggressor in all international forums? If I invite
my neighbours to take afternoon tea and, when evening comes, one of them refuses to go home,
8RU, pp. 45-46, para. 97.
9
RDRC, pp. 258-259, para. 3.208.
10
CMU, Ann. 31, p. 14.
11Emphasis added by the DRC; RDRC, Ann. 41.
12RDRC, Ann. 40; emphasis added by the DRC.
13MDRC, Ann. 27; emphasis added by the DRC. - 8 -
and I call the police to have him removed by force and publicly call him a criminal, it would be
extremely surprising to me if that intrusive neighbour were loudly to proclaim that I had invited
him to dinner. And yet that is what Uganda is doing today, when it has the effrontery to contend
that it had an invitation to remain in the Congo after the beginning of August 1998.
19. But this is not the full extent of Uganda ’s excesses. Thus, it claims that the Congo is
14
required to prove that its consent was formally withdrawn . An informal withdrawal, even one as
manifest as that which resulted from the events I have just mentioned, would thus not be sufficient.
Once again, the argument is fallacious. If the Congo had previously given its consent formally, in a
treaty for example, it could be claimed that it s hould have observed certain formalities in order to
withdraw such consent. But, as that was not th e case, and it was only a matter of sufferance, there
15
was nothing to prevent the Congo from taking an informal decision. As the work of the
International Law Commission indicates, consent may be implicit, provided that it is “clearly
15
established” . The same logically applies also to the withdrawal of consent. The only condition,
in this instance, is thus whether such withdrawal is “clearly established”; and that is indeed the
case, particularly in light of the Congolese statements of late July and August 1998.
20. Mr. President, it remains for me to mention a factor which strips the Ugandan argument
of any remaining force. On 9 April 1999, the Security Council adopted resolution 1234, in which it
not only recognized Congo’s right of self-defence ⎯ as we saw yesterday ⎯ but also
“Deplores the continuing fighting and the presence of forces of foreign States in
the Democratic Republic of the Congo in a ma nner inconsistent with... the Charter
of the United Nations, and calls upon those States to bring to an end16he presence of
these uninvited forces and to take immediate steps to that end.”
This resolution, which you will find in th e judges’ folder under tab21, was recalled on
numerous occasions by the Security Council, including in resolution1304, in which it states that
Uganda has “violated the sovereignty and territori al integrity of the Democratic Republic of the
14RU, p. 46, para. 99.
15
YILC, 1979, Vol. II, Part One, para. 69.
16Emphasis added by the DRC. - 9 -
17
Congo . . . . This resolution was also accepted by Ug anda, which never challenged it and which
even accepted that the Lusaka Ce asefire Agreement should explicitly cite resolution1234 in its
18
preamble .
21. The following two lessons may be drawn from these facts and applied to the present
case:
⎯ first, the Security Council clearly considered that the Ugandan troops present in the Congo
were “uninvited forces”, and this was one of the factors leading to the conclusion that Uganda
had violated the sovereignty and territorial integrity of the Congo;
16 ⎯ secondly, by unreservedly accepting this resolution 19, Uganda itself admitted that its forces had
not been “invited” into the Democratic Republic of the Congo.
22. Mr. President, Members of the Court, Uganda therefore has to make a choice. Either it
accepts the relevant resolutions of the Security Co uncil, and it cannot claim that it was still invited
to remain in Congolese territory at the date of the adoption of the resolution of 9 April 1999. Or it
maintains, despite all opposition, that it received an invitation, but it must then acknowledge its
opposition to all these Security Council resolutions.
23. It is certainly very difficult to believe in the sincerity of Uganda’s arguments on this
point. Just as it is difficult to believe Uganda ⎯ and this brings me to the second part of this
presentation–– when it asserts that a valid legal title enabled it to remain in the Congo after the
entry into force of the Lusaka Ceasefire Agreement on 11 July 1999.
17
Resolutions 1258 of 6August1999 (first preambular paragraph), 1273 of 5November1999 (first preambular
paragraph), 1279 of 30November1999 (first preambular paragraph), 1291 of 24February2000 (first preambular
paragraph), 1304 of 16June2000 (first preambular para graph), 1316 of 23August2000 (first preambular paragraph),
1323 of 13 October 2000 (first preambular paragraph), 1332 of 14 December 2000 (first preambular paragraph), 1341 of
22February2001 (first preambular paragraph), 1355 of 15June2001 (first preambular paragraph), 1399 of
19March2002 (first preambular paragraph), 1417 of 14June2002 (first preambular paragraph), 1445 of
4December2002 (first preambular paragraph), 1457 of 24January2003 (first preambular paragraph), 1468 of
20March2003 (first preambular paragraph), 1484 of 30May2003, and 1493 of 28July2003 (first preambular
paragraph); Statement by the President of 24 June 1999 (S/PRST/1999/17).
1Preamble, twelfth paragraph, S/1999/815, MDRC, Ann. 31.
1CMU, p. 151, para. 270. - 10 -
II. The Democratic Republic of the Congo did not consent to the presence of Ugandan troops
on its territory during the period between the entry into force of the Lusaka Ceasefire
Agreement and the entry into force of the Luanda Agreement
24. According to Uganda, the conclusion of the Lusaka Agreement had decisive legal effects
in relation to these proceedings. By agreeing thereunder to set modalities for the withdrawal of the
Ugandan troops stationed at that time on its territo ry, the Congo is said at the same time to have
accepted the continued presence of those troops as consistent with international law. In signing the
Agreement, the Congolese Government thus allege dly abandoned the idea of calling Uganda to
account for the stationing of its troops on Congolese territory 20.
25. Before comparing this argument with th e text of the Lusaka Ceasefire Agreement, it
should be recalled that, in any case, the Agreem ent cannot retroactively legitimize Uganda’s
actions in the Congo. The Agreement cannot ther efore justify the initial refusal by the Ugandan
authorities to withdraw their troops from Congolese territory in August 1998, any more than it can
justify the invasion and subsequent occupation of Congolese territory from that date. Such
retroactive authorization, which moreover w ould in principle raise serious problems of
international law, is not even remotely apparent from any provision of the Agreement. The latter
17 simply provides that it shall take effect 24 hours after signature, which took place on
10 July 1999 21. It was thus only after that date, on 11 Ju ly, that the Agreement could have had any
effect in law.
26. Uganda replies that this is irreleva nt, since the Lusaka Agreement confirms the
22
international community’s recognition of its “security concerns” . However, the Congo still fails
to see how the recognition of simple security c oncerns–– as was perfectly legitimate–– could be
assimilated to retroactive legalization or authori zation of the presence of Ugandan troops in the
Congo. The “international community”, whether the United Nations or regional African
organizations, has never contested the legitimacy of Uganda’s security concerns, or indeed those of
other countries in the region. What it has, however, firmly condemned, as we saw yesterday, is the
23
policy of force which Uganda has adop ted in order to address those concerns . It is, to say the
20RU, pp. 91 et seq.
21
Art. I, para. 25, of the Agreement, S/1999/815, MDRC, Ann. 31.
22
RU, pp. 129 ff.
23See RDRC, Anns. 118, 199, 61, 62, 49, 51. - 11 -
least, paradoxical to cite statements by such international organizations in order to justify what they
have expressly condemned.
27. But what then are, precisely, the legal effects of the Lusaka Ceasefire Agreement?
Mr.President, Members of the Court, neither the aim nor the effect of that Agreement was to
permit the Ugandan army to remain in the Congo on the basis of some new legal title. There is no
provision here similar to that in the Luanda Agreement of 6September2002, which, I would
remind you, provides that “[t]he Parties agreed that the Ugandan troops remain on the slopes of
Mt.Ruwenzori ...”. The words I have just quoted are clear and unambiguous. However, the
Lusaka Ceasefire Agreement contains no provision of this kind. The Congo does not accept that
foreign troops should remain on its territory. On the contrary, it seeks to secure “[t]he final
24
withdrawal of all foreign forces from the national territory” (Art. III, point 12 of the Agreement);
18 an objective not achieved, since, as Professor Salmon recalled to you yesterday, the Ugandan army,
far from withdrawing in summer 1999, then pursued its advance into Congolese territory.
28. Uganda considers, however, that, in laying down the modalities for withdrawal, that
Agreement implicitly legalized the presence of its troops, at least until that withdrawal had taken
place, in accordance with the modalities provided for in the Agreement 25.
29. Uganda’s argument is based on a contrario reasoning, the result of which is to make the
text say what it does not say: the Lusaka C easefire Agreement makes no pronouncement on the
legality or illegality of the retention of foreign tr oops. It confines itself to noting their presence,
and to laying down modalities for their withdrawal. Its purpose is not to rule on the responsibility
or rights of individual parties in the outbreak or pursuit of the conflict, but simply to put an end to
that conflict.
30. Mr.President, Members of the Court, I would remind you here that what is sometimes
called out of convenience the “Lusaka Agreemen t” is, according to its own title, a “Ceasefire
Agreement”. When the Security Council refe rs to it, it does so as the “Lusaka Ceasefire
Agreement” 26. And that terminology is particularly a ppropriate. Thus, the doctrine is unanimous
2Art. III, point 12, of the Agreement, S/1999/815, MDRC, Ann. 31.
25
RU, pp. 48-49, para. 104.
2See, in particular, resolution 1304 of 16 June 2000, preamble, ninth recital. - 12 -
in taking the view that a ceasefire agreement has but one extremely limited purpose, namely, as its
name indicates, to put an end to the fighting 27. A ceasefire agreement is simply a truce, which does
not put an end to the state of war between the parties ⎯ unlike a peace treaty which, in bringing the
war to an end, at the same time settles all pendi ng problems of substance. A ceasefire is thus by
definition provisional and, above a ll, without prejudice to the claims of the belligerent States. To
cite an extract from the Dictionnaire de droit international public , a ceasefire agreement “in no
28
way prejudges the rights, claims or position of the parties concerned” .
31. In our case, the Lusaka Ceasefire Agreemen t in no way prejudges the rights, claims or
19 position of the parties, whether indeed of the Congo , of Uganda, or of the other States involved.
This was doubtless what the Court meant when it stated in its Order of 29November2001, in
which it ruled on the admissibility of Uganda’s counter-claims, that that Agreement concerns
matters relating to “methods of solving the conflict” and not, again quoting the language of the
Court, issues concerning acts for which the parties were allegedly responsible “during that
29
conflict” . In signing the Ceasefire Agreement, the Congo undertook not to have recourse to force
in order to drive the Ugandan troops out of its te rritory, but to comply with a schedule involving a
series of reciprocal obligations. The Congo was not thereby conferring on Uganda some legal title
providing legal justification for its occupation. This question was simply not dealt with by the
Ceasefire Agreement, which was confined to seeking to bring an end to hostilities.
32. Mr.President, in the preamble to the Lusaka Ceasefire Agreement, the parties recall
Security Council resolution 1234 (1999) 30. That resolution, as I reminded you a moment ago,
describes the Ugandan forces in the Congo as “uni nvited”. The Ceasefire Agreement could not
have had the aim or effect of transforming those uninvited forces into invited forces. Uganda’s
argument thus cannot be upheld.
33. In short, the Ceasefire Agreement must si mply be perceived as a first stage on the long
road to peace. A long and tortuous road, whic h culminated on 6 September 2002 in the signature
27
D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts , Oxford, OUP, 1995, p.62, No.245,
Sydney D. Bailey, “Cease-Fires, Truces and Armistices in the Practice of the UN”, AJIL, 1977, pp. 472 ff., R.R. Baxter,
“Armistices and other forms of suspension of Hostilities”, RCADI, 1976-I, Vol. 149, p. 372.
28
Jean Salmon, dir. pub., Dictionnaire de droit international public, Brussels, Bruylant/AUPELF, 2001, p. 160.
29Order of 29 November 2001, I.C.J. Reports 2001, p. 680, para. 42.
30Preamble, twelfth recital, S/1999/815, MDRC, Ann. 31. - 13 -
of the Luanda Agreement, which, contrary to those which preceded it, conferred a legal title on the
temporary and limited presence of Ugandan troops on Congolese territory. A road to peace which,
finally, has led the Congo to seek justice befothis Court, so that the dispute between it and
Uganda over the outbreak and pursuit of this war ma y be settled once and for all. In participating
in aggression, Uganda has violated the most el ementary principles of international law, in
particular the prohibition of the use of force and the obligation to settle disputes peacefully. None
of the artificial defences relied on by our opponents, whether self-defence or alleged consent, can
20 exonerate it from its responsibility. The Congo acco rdingly requests the Court to find that Uganda
has violated the most basic principles of the Ud Nations Charter, and in particular Article2,
paragraph4, thereof. But it also requests thCourt, as you know, not to leave unpunished the
violations of fundamental human rights caused by this murderous conflict.
34. Mr. President, Members of the Court, I thank you for your attention and ask you kindly
to give the floor to Professor Pierre Klein, w ho will commence the argument of the Democratic
Republic of the Congo on this issue.
The PRESIDENT: Thank you, Professor Corten. I now give the floor to Professor Klein.
KLr.IN:
H UMAN RIGHTS VIOLATIONS
UGANDA ’S BREACHES OF THE OBLIGATIONS OF VIGILANCE
INCUMBENT ON OCCUPYING STATES
I. General introduction to the issue of the violation of human rights
1. Mr.President, Members of the Court, it is now my task to address a particularly painful
aspect of the present dispute: the grave violations of fundamental human rights which
accompanied Uganda’s occupation of large portions of Congolese territory between 1998 and
2003.
2. My colleagues have already had occasion to refer to the horrendous human cost of the war
which ravaged the Congo during those five years. Suffering an increased mortality rate caused by
the conflict, with additional deaths estimatedmore than three and a half million, Congolese
civilians bore the full brunt of the consequences of the aggression against their country. It is clear - 14 -
that many of these deaths, brought on by illness, by malnutrition, were just indirect consequences
of the war. Nevertheless, civilia ns deliberately massacred by the various armed factions and those
whose most fundamental rights were trampled underfoot by the occupying forces and their allies
number in the hundreds of thousands. Certain regions of the Congo subjected to foreign
occupation experienced outbursts of violence unprecedented in the country’s history. These facts
21 undeniably call for severe condemnation on the political and moral planes, but also ⎯ and this is
the Democratic Republic of the Congo’s goal today ⎯ on the legal one.
3. These extremely serious violations of fu ndamental rights obviously raise questions of
individual criminal liability. But, it is clearly not from that perspective that the Congo intends to
deal with these acts before the Court. Over a nd above the individual criminal liability of their
perpetrators, the grave violations of huma n rights committed in the Congolese territories under
foreign occupation also unmistaka bly engage the international responsibility of the occupying
States. In this regard, the Democratic Republic of the Congo will show that Uganda’s international
responsibility has been incurred as a result of th e numerous violations of fundamental rights
committed in the parts of Congolese territory controlled by the Ugandan armed forces during the
conflict.
4. In its written pleadings, Uganda elaborated a two-pronged response to the argument that it
bore international responsibility for these acts. It argues that it would, first of all, be impossible to
find general responsibility on the pa rt of Uganda for the violations of fundamental rights and
international humanitarian law which occurred in the areas of the Congo which had been under
Ugandan control. The alleged reason for this is that the Ugandan State cannot be described as an
31
occupying State . And, in the absence of such general responsibility ⎯ and this is the second
prong of this approach ⎯ , it is for the Democratic Republic of the Congo to establish that each of
the violations of these vital norms of internati onal law committed in the context of Uganda’s
military presence in Congolese territory was ascribab le to Uganda, which the Congo is unable to
do 32.
31
See, e.g., RU, pp. 245-246, paras. 525-526.
32
See, e.g., ibid., p. 246, para. 526. - 15 -
5. The Democratic Republic of the Congo will refute these two contentions in succession.
Thus, I shall first show that Uganda must indeed be considered an occupying State and that its
international responsibility is engaged for its failure to take the steps required by international law
of any occupying State with a view to imposing pu blic order in the territories controlled by that
State. Subsequently, Maître Tshibangu Kalala will highlight the various categories of violations of
22 fundamental rights which are directly attributable to the Ugandan armed forces. Finally, in a third
section and by way of conclusion, my colleague Olivier Corten will return to the general objections
asserted by Uganda to the claims made by the Democratic Republic of the Congo in this area.
With the Court’s leave, I shall now turn to the first aspect of this argument, showing
Uganda’s breaches of the obligations of vigilance borne by occupying States.
II. UGANDA ’S RESPONSIBILITY AS AN OCCUPYING P OWER IN ITURI
6. Mr. President, Members of the Court, th ere is a region of the Congo whose name has,
since 1999, been synonymous with barbarity and devast ation. This region is Ituri, situated in the
easternmost part of the Democratic Republic of the Congo along the border with Uganda. Over
recent years it has been the setting for appalling ma ssacres. The toll has been estimated at more
than 60,000 dead and more than 600,000 displaced persons 33.
7. The violence that has mushroomed in Itur i since 1999 is sometimes described, rather
simplistically, as resulting from the heightening of the tension which has long characterized
relations between the two main ethnic groups in the region: the Hema and the Lendu. This is the
view espoused by Uganda in its most recent pleadings 34. But a great many observers have
35
described a more complex and far more disturbing situation . These observers are unanimous in
finding that, beginning in 1999, the Ugandan occupy ing forces interfered in the administration of
this territory and provided political and military support to members of the Hema community,
33
Second Special Report of the Secretary-General on the United Nations Organization Mission in the Democratic
Republic of the Congo, doc. S/2003/566, 27 May 2003, para. 10 (http://daccess-ods.un.org/TMP/7777661.html).
34RU, p. 266, para. 568.
35See, e.g., generally the Final Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and
Other Forms of Wealth of the Democratic Republic of th e Congo, doc. S/2002/1146, 8Oct ober 2002, para. 14, and the
various sources cited in RDRC, p. 324, paras. 5.21 and 5.22 and footnotes 29 to 33. - 16 -
23 whom they incited in their attacks on the Lendu 36. The UPDF then entered into alliances with
other local groups and provoked the worsening of the conflict, which subsequently took on
horrifying dimensions. And this interference conti nues even today, with the more or less direct
support furnished by Uganda to several of the armed groups plaguing the region. This was the
context in which very serious violations of fundamental rights of the local population were
committed, violations for which Uganda bears overwhelming responsibility.
8. More specifically, I shall show in the present statement that Uganda must be deemed an
occupying power in the region of Ituri (A) and that it has breached many of the obligations which
international law places on any occupying State (B). It should, however, be made clear, at this
stage in the argument, that the situation in Itur i will be evoked here merely as one example of
Uganda’s breaches of its obligations as an occupying power, specifically in the area of fundamental
human rights. The conclusions we will come to in this case can obviously be applied to the other
areas of the Congo where Uganda exercised control and similarly breached its obligations.
A. Uganda as an occupying power in Ituri between 1999 and 2003
9. Thus, let us initially return to the subject of Uganda’s status as an occupying power in Ituri
between 1999 and 2003. The Respondent attempts to refute the conclusion that it must be
considered an occupying State of the regions of the Congo which had been conquered by its armed
forces. Thus, Uganda argues that the presence of its forces in relatively low numbers (on the order
37
of 10,000 men) means that “the notion of a Ugandan occupation is manifestly absurd” . The
Respondent thus seeks to escape all responsibility for the grave breaches of international norms
which were committed in that zone by creating a sort of legal vacuum. But this argument proves
completely untenable, in both fact (1) and law (2).
3See, e.g., Amnesty International, “On the precipithe deepening human rightsand humanitarian crisis in
Ituri”, March 2003, p.4 (http://web.amnesty.org/library/Index/ENGAFR620062003); International Crisis Group, “Congo
crisis: military intervention in Ituri”, 13 June 2003, p. 4 (http://www.intl-crisis-group.org/projects/africa/democraticrepub
licofcongo/reports/A401005_13062003.pdf).
3RU, p. 75, para. 170. - 17 -
24 1. An occupation proven in fact
10. In contending that it cannot be considered an occupying State in the eastern Congo,
Uganda denies a reality which is, however, clearly and solidly proved by many factual elements.
On this point the Respondent tries to hide behind the fact that the territories in the east of the
Democratic Republic of the Congo were subj ect to administration by two Congolese rebel
movements, the RCD-ML and the MLC. Tho se movements are said to have constituted de facto
governments in their respective occupation zones 38. It was only “[f]rom time to time, and upon the
39
request of these de facto governments” that Uganda “provided limited assistance to them” . Yet
Uganda does recognize one exception to this state of affairs: the appointment, by the commander
of the Ugandan armed forces in the Congo, GeneralKazini, of MsAdeleLotsove as Governor of
the “province” of Kibali-Ituri 40. In the Respondent’s view, this is, however, an isolated incident, in
no way indicative of its involvement in the administration of this part of Congolese territory.
11. However, when the Respondent claims that its only interference in local affairs consists
of the appointment of a Governor of the “province” of Kibali-Ituri, it omits a key point: the fact
that this province itself was cr eated by decision of the Ugandan military authorities in June 1999,
by cutting off a chunk of Orientale Province for the purpose 41. This is obviously a major act of
administration, about which Uganda has remained strangely silent to date. It should also be noted
that Uganda stayed very involved in running this new “province”. At least two of the five
governors who succeeded Ms Lotsove up until 2003 were relieved of their duties by the Ugandan
42
military authorities, sometimes under threat of force . And, no doubt because of a shortage of
Congolese political personnel, the Ugandan authorities went so far as to take charge themselves of
25 the destiny of the “province” of Kibali-Ituri. This is very clearly confirmed by, among other
things, the de facto exercise of the duties of governor of the province by Colonel Muzoora, of the
UPDF, between January and May 2001 43.
38RU, p. 87, para. 198.
39
Ibid.
40
Ibid., p. 88, para. 203.
41RDRC, p. 99, para. 2.82 and the references cited in notes 129 and 130.
42Human Rights Watch, report entitled “Ituri: ‘Covered in blood’ ⎯ ethnically targeted violence in northeastern
DR Congo”, July 2003, pp. 6-7 (http://www.hrw.org/reports/2003/ituri0703/).
43Ibid. - 18 -
12. The nature of Uganda’s military presence in these parts of the Democratic Republic of
the Congo is moreover reflected most explicitly in the Agreement reached between these two States
in Luanda on 6 September 2002, defining the modalities of their future relations, notably in the area
of security, to which my colleague Olivier Corten ha s just made ample reference. Under Article 2,
paragraph3, of that Agreement, appearing in the judges’ folder at tab28, the Parties agree “[t]o
work closely together in order to exped ite the pacification of the DRC territories currently
under . . . Uganda[n] control and the normalization of the situation along the common border” 44.
13. The Respondent will no doubt have the opportunity over the coming days to explain how
this wording can be reconciled with its subseque nt contentions to the effect that it cannot be
considered to be an occupier (and therefore as exercising any control) in the areas of Congolese
territory in question here. Similarly, Uganda will also be able to comment on the description of the
situation in Bunia in January2001, appearing in the Sixth report of the Secretary-General on the
United Nations Organization Mission in the Democratic Republic of the Congo. The following
statement is found in that report: “[s]ince 22 January, MONUC military observers in Bunia have
45
reported the situation in the town to be tense but with UPDF in effective control” .
14. In the light of these various elements, the argument denying that the presence of UPDF
troops in Congolese territory can be treated as occu pation therefore proves patently untenable in
fact. With the Court’s leave, I would now like to sh ow that the same is true in law. I will however
be very brief on this second point, which Professor J ean Salmon already dealt with in detail on the
day before yesterday.
26 2. Uganda as an occupying power in law
15. To counter the characterization as occupying power, the Respondent relies for the most
part on the fact that the forces it deployed in Congolese territory were dispersed over a wide area
and only controlled a certain number of key points 46. However, nothing in the conception of
belligerent occupation under international law provides any basis for believing this to be a relevant
consideration. The notion of occupation ⎯ and the rights and duties which it entails ⎯ is, in fact,
44Luanda Agreement between the DRC and Uganda, 6 September 2002, RU, Ann. 84; emphasis added.
45
United Nations, doc. S/2001/128, para. 27, RDRC, Ann. 31; emphasis added.
46RU, pp. 75 and 76, paras. 170 and 172. - 19 -
closely tied in international law to the control exercised by the troops of the State operating on
parts, extensive or not, of the territory of th e occupied State. Article42 of the 1907 Hague
Regulations reflects this conception in very clear terms, stating that “[t]erritory is considered
occupied when it is actually placed under the authority of the hostile army. The occupation extends
only to the territory where such authority has been established and can be exercised.”
16. The fact that Ugandan troops were not physically present in each village, each hamlet,
each forest of the vast territory of the north a nd east of the Congo thus in no way prevents Uganda
from being considered an occupyin g power in the localities or areas which were controlled by its
armed forces. Rather than the omnipresence of the occupying State’s armed forces, it is that State’s
ability to assert its authority which the Hague Regul ations look to as the criterion for defining the
notion of occupying State. Professor Jean Salmon made extensive reference to this in his statement
of the day before yesterday. Moreover, the Cour t recently had the opportunity to recall this in its
Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory 47. And, as the Democratic Republic of the Congo has just explained, there is
no lack of facts to establish the reality of such control over the so-called “province” of Kibali-Ituri
and over its main towns and villages. In respect of these places in particular, it is clear that Uganda
must be considered to be an occupying power and, accordingly, must be held responsible for those
breaches of the obligations incumben t on occupying States which can be attributed to it. Further,
attention has been drawn to this duty in terms which could not be any clearer by the United Nations
48
27 Secretary-General in his reports on MONUC . And Uganda cannot claim to be unaware of this.
Is there any need to remind our opponents of the terms of the letter sent to the Ugandan Minister of
Defence by the Special Representative of the United Nations Secretary-General on
2 February 2002 (that is, during one of the worst pe riods of violence in that region)? You will find
a copy of that letter in the judges’ folder, at ta b29. The wording of the letter could not be any
clearer on this point:
“I must mention here that as per the International conventions, the onus of
maintaining security in an an [sic] area is vested upon the force occupying it.
Therefore I feel that as the occupying force, the UPDF troops must take the necessary
47
Opinion of 9 July 2004, para. 78.
48
See, inter alia, the eleventh report on MONUC, United Nations, doc. S/2002/621, 5 June 2002, para. 15. - 20 -
actions to ensure security in the North Eastern DRC, particularly in Bunia, Beni and
Butembo. I would appreciate if you coul d issue the necessary instructions t49the
UPDF in the [area] and restore a sense of security and stability in the region.”
And this letter is all the worthier of note in that Uganda at the time did not utter the slightest
objection to this characterization of it as an occupying power. The Respondent is therefore
ill-placed to attempt now to contest the characterization before the Court.
As we shall see in the second part of this st atement, various grave breaches by the Ugandan
military authorities of their obligations as occupying power are, in this case, clearly established and
Uganda’s international responsibility is manifestly engaged as a result.
B. Uganda is responsible for grave breaches of its international obligations as occupying
power in Ituri
17. The customary role enshrined in Artic le43 of the Hague Regulations requires an
occupying State to “take all the measures in [its] power to restore, and ensure, as far as possible,
public order and safety, while respecting, unless abso lutely prevented, the laws in force in the
country”. However, in total contradiction with that obligation, the Ugandan armed forces adopted,
in the Ituri region, a pattern of conduct that had the effect of significantly aggravating local
conflicts. They also remained passive witnesses to very serious violations of fundamental human
rights and international humanitarian law.
28 1. The involvement of Ugandan armed forces in local conflicts
18. With respect, first of all, to the involvement of the Ugandan armed forces in local
conflicts, it should be noted that the noxious role played by the UPDF in the Ituri situation was
highlighted by a large number of observers and witnesses of the events in question. The first
Special Rapporteur on the human rights situation in the Democratic Republic of the Congo stated,
in early 2001, that
“since they arrived in the Ituri region, th e Ugandan troops have encouraged and given
military support to the Hema (who are of Ugandan origin) to seize land from the
Lendu, who have been in the region longer. All the officials appointed by the
Ugandan soldiers [were] from the Hema ethnic group.” 50
49
Document No. 1 of the documents submitted by the DRC for the oral proceedings, January 2005, para. 6.
5Seventh Report to the Commission on Human Rights, doc. E/CN.4/2001/40, 1 February 2001, para. 31, RDRC
Ann. 82. - 21 -
This statement is confirmed by a large number of documents and witness statements,
including that of the former Governor of the Kibali-Ituri “province”, MmeLotsove 51. Another
example is the statement by a Hema chief, who recounted inter alia that over 700 Hema had
52
undergone a six-month military training cour se in Uganda from the end of August2000 . The
same observation will also be found in various passages of the United Nations Secretary-General’s
Reports on MONUC. Those Reports highlight th e breaches by Uganda of its obligations as
occupying power in the region. They highlight in particular the Ugandan army’s lack of
impartiality in connection with the conflict between Hema and Lendu 53. The same finding appears
54
again in the report presented in 2004 by MONUC on the events in Ituri . However, Uganda’s
support is not limited to just one of the groups concerned. Over a period of time, the Ugandan
armed forces also provided training and equipment for other groups and factions 55.
29 19. The consequences of that Ugandan military support for armed fac tions and groups in
eastern Congo proved to be totally catastrophic. As explained in a well-documented report
published by Human Rights Watch:
“Despite continuing ethnic tensions in the region, the UPDF trained hundreds of
recruits, many of them children, from the Hema and the Lendu as well as from other
ethnic groups... when Hema and Lendu resumed their conflict in late 2000, both
sides had enough trained combatants to be in a position to inflict serious damage on
the other.” 56
Notwithstanding Uganda’s concern to appear as peacemaker in the region, covert military
support of this kind was to continue for some time. The above-mentioned MONUC report, drawn
up in 2004, thus indicates that in 2002, “[t]he Ugandan military trained thousands of Hema youth in
51“UPDF Trained Hema, Lendu”, The Monitor, 23 March 2002.
52Human Rights Watch, report, op cit, p. 18.
53
See inter alia 11tReport on MONUC, United Nations, doc . S/2002/621, 5 June 2002, para. 15
(http://wwww.un.org/French/peace/peace/cu_mission/monuc/rp.htm).
54
Annex to the United Nations Secretary-General’s letter to the President of the Security Council, 16July2004,
United Nations doc. S/2004/573, p. 6, para. 4; pp. 14-16, para. 27.
55
See also the Final report of the panel of Experts on the Ille gal Exploitation of Natural Resources and Other
Forms of Wealth of the Democratic Republic of the Congo, United Nations doc. S/2002/1146, 8 October 2002, para. 122;
Amnesty International report, op cit, p. 5.
56
Human Rights Watch, “Uganda in Eastern DRC: Fuelling Political and Ethnic Strife”, March2001, section4,
p.4, RDRC Ann.83; see also inter alia the Final report of the panel of Experts on the Illegal Exploitation of Natural
Resources and Other Forms of Wealth of the Democratic Republic of the Congo, United Nations doc.S/2002/1146,
8 October 2002, para. 124 et seq. - 22 -
Ituri and in Uganda” 57. You will find the relevant extracts from that document in the judges’
folders, under tab30, in particular pages12 a nd 14 to 15 of the report. The MONUC document
summarizes as follows the main effects of the Ugandan military presence on the evolution of the
conflict in that region of the Congo:
“Uganda claimed on several occasions to be in Ituri to defend “its legitimate
security concerns” and to be acting for rec onciliation and the protection of civilians.
However, although in some cases UPDF did intervene to halt fighting between
opposing forces, its commanders were responsible for the creation of almost all of the
armed groups, training their militias ⎯ sometimes even in Uganda ⎯ selling weapons
and even lending their soldiers to rich Hema to massacre Lendu civilians and destroy
villages in WalenduTatsi in 1999... Th e same UPDF commande rs also became
businessmen who traded in the resources of Ituri.” 58
All of this, Mr. President, Members of the Court, is not the fruit of th e Congo’s imagination.
These very grave accusations are quite simply the result of careful fieldwork carried out by
MONUC experts. Moreover, that report only serv es to confirm fully what was already widely
attested to by other independent sources. But what is even more serious is that, in one series of
cases, the Ugandan armed forces provided direct m ilitary support to Congolese factions and joined
30 with them in perpetrating massacres of civilians and the destruction of tens or even hundreds of
villages. My colleague, Maître Tshibangu Kalala, will return in greater detail to those events later
on this morning.
20. Uganda’s responsibility in the outbreak and pursuit of the terrible conflict that has been
raging in Ituri for six years now is thus overwhelm ing. Uganda’s violations of the obligations
imposed on occupying states under Article43 of the Hague Regulations of 1907 and under the
Fourth Geneva Convention of 1999 is consequently clearly established. In these circumstances, its
responsibility for the acts of its armed forces is be yond doubt. But that responsibility also extends
to the extremely serious violations of fundamental rights committed by armed groups for which the
Respondent has provided support. That principle was recalled in particularly strong terms by the
Secretary-General of the United Nations. In his second Special Report on MONUC, of May 2003,
he wrote:
57
Loc cit, doc. S/2004/573, p. 10, para. 21.
58
Loc cit, doc. S/2004/573, pp. 12-13, para. 27. - 23 -
“Uganda’s withdrawal from Ituri is welcome, but it and all other external actors
must recognize their accountability for the actions of those armed groups they helped
create and must cease to supply them or give them succour.” 59
In the same vein, the Democratic Republic of the Congo will ask the Court to establish, in
connection with the present proceedings, the Responde nt’s responsibility for lack of vigilance with
respect to those various armed groups that it helped to set up.
2. The passivity of the Ugandan armed forces in the face of serious violations of fundamental
rights
21. But there is also a second basis on which Uganda’s responsibility can be founded as a
result of the events in Ituri, and that is the point I now wish to address in this statement. That
additional responsibility stems from the fact that, in addition to their support for the main rival
ethnic groups, and then for the militias emana ting therefrom, the Ugandan troops, on several
occasions, passively witnessed atrocities committed by the members of those various groups and
31 militias. They were present, for example, at the killings in Bunia in January2001. The United
Nations Secretary-General, commenting on this subject in his Sixth Report on MONUC, states:
“The office of the United Nations High Commissioner for Human Rights team
confirmed that a massacre of ethnic Lendu had been carried out by ethnic Hema
militias in Bunia on 19January[2001]. At least 200people were killed and some
40wounded. The majority of the vict ims were civilians, including women and
children. Some of them were killed with machetes and some decapitated. Some of
the bodies were thrown into open latrines.” 60
That is followed by the following shocking observation: “UPDF troops stood by during the
61
killings and failed to protect the civilians” . Those events, and the absence of any reaction from
the Ugandan troops faced with the murder of civilians before their very eyes, are confirmed by
62
numerous concurrent sources . That type of situation was rep eated, for example, in Mabanga and
in Bunia in August2002. In the first of tho se localities, some 150civilians were killed in
massacres between local groups. The report drawn up in 2004 by MONUC on human rights
violations in Ituri indicates in this context th at “UPDF had a military camp in Mabanga; the
59
United Nations doc. S/2003/566, p. 26, para. 95.
60
United Nations doc. S/2001/128, para. 56, RDRC, Ann. 31.
6Ibid.
6Press release of the Special Rapporteur on the human rights situation in the DRC, dated 26January2001;
Amnesty International press release dated 24 January 2001; report of the organization Human Rights Watch, “Uganda in
Eastern DRC; Fuelling Political and Ethnic Strife”, loc cit, p. 5. - 24 -
Ugandan army did not intervene to stop the killing of civilians that gave refuge to those who were
able to reach the camp” 63. And these were not simply isolated cases. Further examples of the same
64
kind of abstention can be found in the various reports .
22. In a number of circumstances Uganda has thus clearly failed in its obligation of
vigilance, which requires the occupying State to ensure that there are no breaches of the
fundamental rights of people living in areas under its control. This type of conduct is clearly at
odds with the obligation laid down in common Artic le1 of the Geneva C onventions, and later in
the Protocol additional thereto of 1977, requiring States Parties to respect and ensure respect for the
32 obligations prescribed therein. It follows that Uganda has also clearly ignored the instruction
handed down by the Court in its Provisional Measur es Order of 1July2000, where it held that
“both Parties must, forthwith, take all measures nece ssary to ensure full respect within the zone of
conflict for fundamental human rights and for the applicable provisions of humanitarian law” 65.
23. That need to ensure full respect for funda mental rights in the territories occupied by the
Ugandan army was similarly emphasized subse quently by the United Nations Commission on
Human Rights. In a resolution devoted to the human rights situation in the Democratic Republic of
the Congo, adopted on 14April2003, the Commission on Human Rights thus condemned “the
continuing violence in the Ituri region, and stress e[d] in this connection that it [was] incumbent
upon Uganda and the rebels who de facto control[led] the zone to en sure respect for human rights
and stop using ethnic conflicts to advance their own agendas” 66.
What Uganda chose to do was quite the c ontrary. The occupying State dramatically
aggravated the conflict in Ituri. It provided wea pons to rival groups and militias. It participated
with them in killings and destructions of villages. It did nothing, on various occasions, to put an
end to the deliberate killing of civilians that w as witnessed by its armed forces. The Democratic
Republic of the Congo thus expressly requests the C ourt to find that the Respondent violated its
obligations both under the Hague Regulations and the Fourth Geneva Convention of 1949 and
6Loc cit, doc. S/2004/573, p. 20, para. 45.
64
See inter alia, concerning pillaging in Bunia in 2002 the Human Rights Watch report entitled “Ituri Covered in
Blood . . .”, loc cit., p. 22.
65
I.C.J. Reports 2000, p. 129, para. 47.
6Doc. E/CN.4/2003/L.41, para. 3 d). - 25 -
those laid down in the Provisional Measures Order of 1 July 2000. It was obliged under all those
instruments to ensure, in its capacity as occupying State, that such serious violations of
fundamental rights were avoided.
24. However, Mr.President, Members of the Court, it was not only in its capacity as
occupying State and by virtue of its failure to fulfil its obligation of vigilance that Uganda’s
responsibility was engaged for the appalling violatio ns of fundamental human rights committed in
the areas of the Congo under its occupation. As I have already pointed out, in a whole series of
33 instances, Ugandan armed forces were also direc tly responsible for serious atrocities committed
against Congolese civilians. If the Court will allo w, my colleague MaîtreTshibanguKalala will
discuss these various incidents shortly, no doubt after the break. I thank the Court for its kind
attention.
The PRESIDENT: Thank you, Professor Klein.
It is now time to have a break of ten minutes, after which I shall give the floor to Mr. Kalala.
The Court adjourned from 11.20 to 11.30 a.m.
Mr. KALALA: Mr. President, Members of the Court,
V IOLATIONS OF HUMAN RIGHTS DIRECTLY ATTRIBUTABLE TO THE
UGANDAN ARMED FORCES IN THE DRC
1. As my colleague and friend Pierre Klein showed a moment ago, Uganda is guilty of
serious failures in the duty of vigilance incumb ent upon it as occupying Power. But the Ugandan
armed forces were also directly responsible for serious acts of violence against Congolese civilian
populations in the occupied areas. As Professor Klein indicated, it now falls to me to address the
various categories of violations of fundamental human rights and of international humanitarian law
directly attributable to members of the Ugandan armed forces. In this connection, I shall also show
that, contrary to what Uganda asserts, these various categories of violation are established beyond
all reasonable doubt.
2. I need hardly remind you to what extent the presence of Ugandan armed forces in large
parts of Congolese territory reflects a situation of co nflict. Even after the cessation of the fighting - 26 -
which had pitted it against the regular armed forces of the Democratic Republic of the Congo or
those of its allies, the UPDF faced growing hostilit y from the inhabitants, and indeed from armed
groups, in the territories under its control. This hostility led the Ugandan troops to engage in
numerous acts of reprisal and terror against civilia ns in those areas, in order to deter them from
providing support for the armed groups confronting the UPDF. The direct involvement of
34 Ugandan troops in the conflict between the Hema and Lendu in Ituri is the other important factor
which prompted the UPDF to commit very grave acts of violence on a large scale. Murders of
civilians, acts of torture, destruction of homes and other civilian property and looting were thus the
lot of the population in the territories controlled by the Ugandan army. As I indicated earlier, I will
now undertake a systematic examination of the va rious categories of violation, dwelling on some
particularly significant instances within each of those categories. In this connection, I shall address
the following categories of serious violations of fundamental rights:
⎯ first, the massacre of civilians;
⎯ secondly, the deliberate destruction of villages, civilian homes and private property;
⎯ thirdly, failure to observe the rules of the law of ar med conflict, particularly in Kisangani; and
finally,
⎯ fourthly, the recruitment of child soldiers.
3. Mr. President, Members of the Court, one poi nt needs to be made clear, however, before I
begin a more detailed analysis. As has already b een stated, Uganda has e ndeavoured to deny the
reality of the violations of fundamental right s alleged by the DRC in its written pleadings by
claiming that the acts in question were not sufficien tly proven, or that the attributability of those
violations to the Ugandan armed forces was not established. Faced with the growing weight of
concordant evidence confirming its responsibility fo r such atrocities, the respondent State had no
alternative but to fall back on a procedural a nd methodological response, challenging the reliability
of certain of the sources cited by the Congo to support its allegations. Th is strategy calls for a
number of observations, which will also serve to define the manner in which the Congo intends to
repudiate those criticisms in the context of this presentation.
⎯ First of all, it should be noted that the methodological criticisms are for the most part limited to
a small number of the sources on which the DRC has relied to substantiate its claims. Our - 27 -
opponents were conspicuously unable to develop a similar line of criticism with regard to the
Congo’s supporting documents overall. In focusi ng its objections on specific points of detail,
Uganda thus seeks to obscure the fact that the various categories of violations of fundamental
35 rights described by the DRC in its written pleadings are in each instance supported by a
combination of concordant sources . On this, Uganda has not hing whatever to say.
ProfessorSands drew attention to the importance of this yesterday in his introductory address
on issues of evidence.
⎯ Secondly, it is important to recall that the DRC has meticulously established the reliability of
each of the sources that it has used in this part of its Reply; thus, the Annexes to the Reply
contain a precise description of the institutions or groups from which the information in
67
question originates, thus establishing their credibility . We shall therefore not dwell on this
point at this stage in the proceedings.
⎯ Thirdly, even more recent sources, whose reliability is unchallenged, confirm that the Ugandan
armed forces deployed in the Congo were guilty of numerous atrocities. This is particularly
true of the Special Report of MONUC (Unite d Nations Observer Mission in the Congo) on the
events in Ituri between January2002 and Decemb er2003, and I shall refer to this report by
way of confirmation for each of the above-mentioned categories of violation 68.
In sum, rather than continuing to dispute poi nts of detail, Uganda could perhaps take the
trouble to explain, over the coming days, why the grave allegations against its forces in no fewer
than 20 different documentary sources should be de nied and dismissed by the Court in the present
proceedings.
I. The massacre of civilians
4. In its Memorial, the Democratic Repub lic of the Congo has already cited the report
submitted by the Special Rapporteur of the United Nations Commission on Human Rights, dated
18January2000, which reported the massacre of dozens of Congolese civilians by the Ugandan
67
RDRC.
6Report annexed to the letter addressed by the Secretary- General of the United Nations to the President of the
Security Council on 16 July 2004, doc. S/2004/573. - 28 -
69
armed forces at Beni in eastern Congo on 14 November 1999 . As the Congo explained in detail
in its Reply, these, unfortunately, were not isolat ed events. The testimony gathered on the ground
36
by a number of Congolese and international non-governmental organizations thus bears witness to
the reality of massacres perpetrated by Ugandan so ldiers in various localities in the east of the
Democratic Republic of the Congo. This was the case, inter alia, at Maboya in November2000,
where six persons were burnt alive and several were shot at point-blank range by Ugandan
70
soldiers, at Kikere, that same month, where eleven persons were burnt alive, and five children
killed by gunfire 71, as well as at Biambwe, a locality situated some 60 km from Butembo, where in
April2001 several dozen Congolese civilians were massacred by soldiers of the UPDF in the
course of reprisal operations 72.
5. Many of these civilian massacres were in fact part of reprisal operations conducted against
villages in areas controlled by the Ugandan army. These reprisals are explained by certain forms of
resistance put up against the Ugandan military pr esence by the local populations. In particular,
fighters from numerous villages in these areas of the Congo, known by the generic name
“Mai-Mai”, frequently attacked Ugandan troops in the occupied areas. It was in response to those
attacks that the soldiers of the UPDF on various occasions committed atrocities against the civilian
inhabitants of villages having harboured Mai-Mai fighters by whom they had previously been
attacked. Such incidents thus constitute acts of reprisal directed against civilians, acts which are
quite clearly prohibited by international humanitarian law.
6. The reality of these acts, which Uganda sought to dispute on the basis of points of detail or
fallacious arguments is confirmed without a sha dow of ambiguity by the above-mentioned report
drawn up by the MONUC in 2004. The acts repor ted therein were set in the context of the
involvement of UPDF troops in the conflicts be tween Hema and Lendu in Ituri. Their scale is
nothing if not terrifying. Allow me, Mr.President, Members of the Court, to cite in extenso a
69MDRC, p. 117, para. 2.160.
70
RDRC, p. 317, para. 5.08 and Anns. 83 and 89.
71
Ibid., p. 318, para. 5.08 and Anns. 83 and 93.
72Ibid., p. 318, para. 5.10 and Anns. 22, 95, 96 and 98. - 29 -
number of extracts from the 2004 report in this connection. The extracts are long ones, for which I
beg the Court’s indulgence. Above all, however, they are terribly eloquent.
37 First extract:
“From 9February to 24April2002, UPDF based in Gety, together with Hema
and Bira militia groups, carried out large- scale operations against the Lendu villages
of the Boloma, Bukiringi, Zadhu, Baviba and Bamuko groupements, all located in the
collectivité of Walendu Bindi, in the territory of Irumu. Mass killings continued for
another two weeks after the visit on 4 April of the then Governor of Ituri, Jean-Pierre
Lompondo Molondo, with Colonel Peter Karim, from UPDF, who was sent by
Kampala to investigate abuses committed by UPDF soldiers. Both called upon UPDF
to end the hostilities. A local non-govern mental organization reported a total of
2,867civilians killed, and 77localities complete ly destroyed, together with all social
infrastructures, resulting in the displacement of 40,000 civilians.” 73
Second extract:
“The fighting between the two forces [i.e. RCD-ML and UPC, Congolese rebel
movements] ended with the withdrawal of RCD-ML from Bunia to Beni after UPDF
and UPC on 9 August shelled the residence of Governor Lompondo. UPC and its ally
UPDF and the Ngiti/Lendu militias both killed civilians, many of them targeted only
74
because of their ethnicity.”
Third extract:
“In 2002 and 2003, the [Lendu] groupement [of Bedu-Ezekele] experienced a
total of eleven attacks with 445 civili an victims of killing, according to a Lendu
teacher who took notes of each event. Th e most serious attacks occurred on 15 and
16October2002, when Hema militias, together with UPDF from Bogoro, attacked
Zumbe and stayed there for 48 hours. From Zumbe, the attackers burned all the
surroundi75 villages, killed around 125 civ ilians and planted several anti-personnel
mines.”
7. In each of these cases, the participation of the Ugandan armed forces in the mass killings
is clearly established. Doubtless, however, Uganda will attempt to convince you in a few days’
time that all concerned ⎯ the United Nations Secretary-General, the United Nations Special
Rapporteur on Human Rights in the Congo, the organization Human Rights Watch, several
Congolese NGOs and the MONUC experts ⎯ were mistaken when they identified Ugandan
soldiers as the perpetrators or co-perpetrators of these massacres, or again that the MONUC, like so
73Loc cit., pp. 16-17, para. 42; the figures for the most serious mass killings are given by locality in footnote 21.
74
Ibid., p. 18, para. 46.
75Ibid., p. 22, para. 63. - 30 -
38 many other institutions, is involved in a vast pl ot aimed at tarnishing the image of Uganda by
making accusations against that country that are as defamatory as they are untrue. The task may
well be a difficult one, however, given the clarity with which the report brings out the scale of the
involvement of Ugandan armed forces in the atrocities committed in Ituri, as is further illustrated
by the account given in the report of the destruction of a large number of villages by UPDF troops.
The deliberate destruction of villages, civilian dwellings and private property
8. Mr.President, Members of the Court, as is attested by several documents already cited,
the mass killings of civilians perpetrated by Uganda n troops in the context of reprisal operations or
ethnic conflicts in Ituri frequently went hand in ha nd with the laying waste of villages, the burning
of homes and the destruction and looting of private property. That is the second category of
violations of fundamental rights that I should like to take up in this address. I shall confine myself
to citing a few examples, which will enable the C ourt to appreciate the extent to which the UPDF
practised a policy of devastation in several of the Congolese regions that it occupied. Thus,
42houses were torched by Ugandan troops during their attack on the village of Maboya in
November 2000 76. That same month, 15 homes were destroye d by UPDF soldiers in the village of
77
Kikere . In course of a series of operations targ eting localities in the Butembo region, in
78
April 2001, nearly 200 homes were burnt by the Ugandan military in the context of reprisals. In
several of these situations, the property of the inha bitants of the various villages was carried off or
79
burnt by UPDF soldiers . Numerous cases of looting by Ugandan military forces were reported by
39 a number of local personalities, including the Bishop of Butembo himself. 80 Moreover, the
property and resources of the civilian populations in the eastern Congolese regions occupied by the
Ugandan army were also destroyed on certain o ccasions by UPDF soldiers as part of a “scorched
76
Joint Report of the Congolese NGO Asadho and the French NGO “Agir ensemble pour les droits de l’homme”,
p. 8, RDCR Ann. 93.
77Testimony cited in a Human Rights Watch report of March 2001, Sect. V, pp. 4 and 5, ibid., Ann. 83.
78Joint letter of 13June2001 to the MONUC officer in Kinshasa from seven offi cials of organizations
representing civil society in the Beni-Butembo region, ibid., Ann. 96.
79Ibid.
80
Extract from the “Memorandum addressed to the UPDF commander in the territories of Beni-Lubero,
Nord-Kivu, DRC: Pourquoi l’insécurité généralisée? ” attached to the letter from Mgr.Sikuli Melchisédech,
16 October 2000, cited in a Human Rights Watch report of March 2001, Sect. V, p. 2, RDRC, Ann. 93. - 31 -
earth” policy aimed at combating the ADF rebels. Direct witnesses thus report the destruction of
homes and fields by Ugandan soldiers in the Ruwenzori area. The avowed aim of these operations
81
was to starve the rebels and force them out of the area .
9. But here again, Uganda seeks to dispute th e reality of these acts, notably by claiming that
the documents which reported the events emanated from partisan Congolese organizations and did
not clearly identify either the acts themsel ves or the forces that perpetrated them 82. However,
whatever the respondent State may say, the whol esale destruction of homes and villages is fully
confirmed by the MONUC report of 2004 on events in Ituri over the two previous years. There is
not the slightest ambiguity in the report about who was responsible for the acts in question. Thus,
the report states that, between 2000 and 2002, a total of “[h]undreds of Lendu villages were
completely destroyed during attacks by Ugandan ar my helicopters together with Hema militia on
the ground” 83.
There is no doubt, Mr.President, either about the reality of the numerous acts of looting
already referred to by other sources, or about the involvement of the Ugandan military in these acts.
By way of example, the above-mentioned MONUC report notes that, following the shelling of the
Ituri Governor’s residence at Bunia by the UPD and UPC in August 2002, “UPC and UPDF, taking
advantage of the chaos in the town, also conducted large-scale looting operations”. 84
40 In these circumstances, what evidence is there of the doubt which Uganda seeks to evoke in
order to extricate itself from the extremely awkwar d situation in which the brutal actions of its
armed forces have placed it? In reality, there can be not the slightest doubt as to the respondent
State’s responsibility for these acts. Here, too, the facts and their attributability to Uganda are
established by numerous neutral and concordant s ources, all of which confirm that these atrocities
really did take place. This is no less true of the other violations of the law of armed conflict, which
I shall now deal with in more detail, particularly in relation to the fighting that occurred in the city
of Kisangani.
8Testimony by Ms Patience Kavutirwaki, nurse at Mutwanga, in Joint Report of the Congolese NGO Asadho and
the French NGO “Agir ensemble pour les droits de l’homme”, p. 13, RDRC, Ann. 93.
82
RU, p. 267, para. 571.
83
Loc. cit., p. 5, para. 5 in fine; see also p. 12, para. 21, p. 15, para. 27.
8Loc cit, p. 21, para. 49. - 32 -
III. Failure to respect the rules of the law of armed conflict, especially in Kisangani
10. It has also been apparent that Uganda n troops have regarded the lives of Congolese
civilian populations as of scant importance during various combat situations, in which UPDF forces
have taken no steps to protect civilians. The fighting between Ugandan and Rwandan troops in the
city of Kisangani in 1999 and 2000 is a particularly dramatic illustration of this tragic reality. Thus
85
the clashes in 1999 caused do zens of civilian casualties . However, it was the fighting in
June 2000 that caused by far the most civilian casualties and damage to infrastructure in Kisangani.
Mr.President, the results of these six days of clashes between the Ugandan and Rwandan armies
are distressing. Allow me to cite in this conn ection the report by the United Nations inter-agency
assessment mission, which went to Kisangani pursu ant to Security Council resolution1304; you
will find a copy in your judges’ folders, at tab 33. According to this report, Mr.President,
Members of the Court:
“Over 760civilians were killed and an estimated 1700wounded. More than
4000houses were partially damaged, destro yed or made uninhabitable. Sixty-nine
schools were shelled, and other public bu ildings were badly damaged. Medical
facilities and the cathedral were also damaged during the shelling, and
65,000 residents were forced to flee the fighting and seek refuge in nearby forests.” 86
41 Beyond the physical damage, the inter-agency assessment mission also noted, and again I
quote from its December 2000 report, that:
“the psychological trauma inflicted on th e civilian population... in Kisangani was
immeasurable. Systematic violations of international humanitarian law and
87
indiscriminate attacks on civilians have left residents highly traumatised.”
Thus there can be no doubt, Mr.President, Members of the Court, as this passage from the
report by United Nations experts shows very clearly, that very serious violations of humanitarian
law were committed by the warring parties during this fighting.
11. Once again, however, Uganda seeks to ev ade all responsibility for these events. The
Respondent has raised an initial procedural obstacl e in order to avoid any substantive decision,
arguing that the Court has no jurisdiction to rule on these events in the absence of Rwanda from the
proceedings. The DRC has in its written pleadings shown in detail why this procedural objection
8RDRC, p. 321, para. 5.15, Ann. 93 and 94.
86
Doc. S/2000/1153, 4 December 2000, para. 16; RDRC, Ann. 38.
8Ibid., para. 18. - 33 -
must be rejected, and has established that the C ourt is fully competent in respect of the entire
dispute of which it is seised, including the events in Kisangani 88, so I will not revisit the issue here.
On the other hand, I will reply in greater detail to the second limb of Uganda’s argument that it has
no international responsibility fo r the violations of humanitarian law during the fighting in
Kisangani. According to the R espondent, none of the eviden ce submitted by the Democratic
Republic of Congo in support of its claims justifie s the attribution to the UPDF of violations of
89
humanitarian law during the fighting in Kisangani .
12. This objection calls for a detailed reply. First, the Democratic Republic of Congo is
bound to note that Uganda makes no mention whatev er in this part of its written pleadings of
resolution 1304, adopted by the Security Council on 16 June 2000. That silence is understandable,
since in the preamble to this resolution the Security Council states that it is “[e]xpressing in
42 particular its outrage at renewed fighting between Ugandan and Rwandan forces in Kisangani” and
“deploring the loss of civilian lives, the threat to the civilian population and the damage to property
90
inflicted by the forces of Uganda and Rwanda on the Congolese population” .
Moreover, the Council drew the logical conclusions from this finding, stating in
paragraph14 of the resolution that “the G overnments of Uganda a nd Rwanda should make
reparations for the loss of life and the propert y damage they have inflicted on the civilian
91
population in Kisangani” .
Even if the Council makes no precise apportionment of responsibility, and a fortiori of the
reparations, that falls to each of the two States involved in this fighting, there is a very clear finding
by the Council in this resolution of damage inflicted on the population both by Uganda, and by
Rwanda. It is difficult to see in such circumstance s how the Respondent can purely and simply
deny that violations of the rules of humanitari an law designed to protect the civilian population
were committed by elements of its armed forces in Kisangani in June 2000. It is hardly surprising
that the exact share of responsibility, and conse quently the amount of reparations due from each of
88RDRC.
89
RU, pp. 262-263, paras. 558-561.
90
Resolution 1304 (2000), eighth paragraph of the Preamble, MDRC, Ann. 6.
91Ibid. - 34 -
the two States, is not specified at this stage. As the Democratic Republic of Congo has already
pointed out, reparations can be assessed only in a su bsequent phase of the proceedings. Only then
will it become necessary to establish the causal li nk between each of the heads of damage suffered
by the population and the civilian infrastructure a nd the violations of humanitarian law by UPDF
troops in the course of this fighting. At this st age it suffices to state that Uganda’s responsibility
for the damage inflicted on the civilian population in Kisangani has been cl early affirmed by the
Security Council in its resolution1304(2000), adop ted some days after the end of the fighting.
This should give rise to no difficulty for the Respondent, which has declared on several occasions
that it fully accepts resolutions adopted by the Secu rity Council in the context of the conflict, thus
including this resolution of June 2000 and the clear condemnation that it contains.
43 13. Mr.President, Members of the Court, other documents testify in greater detail to the
violations of international humanitarian law by Ugandan forces during the fighting in June 2000 in
Kisangani. This true in particular of a document prepared by the MONUC observers present in that
92
city when the fighting was taking place . This report states, inter alia, that the UPDF fired
mortars and artillery over Kisangani, during which more than 300direct hits on houses were
93
reported . It also mentions the firing of mortars and artillery by the Ugandan army at illegitimate
targets (“international illegitimate targets”, in the actual words of the report), including a school, in
which many children were killed and many others wounded, the United Nations headquarters, the
cathedral and the Kisangani hospital, etc., 94 It should be noted that this list of illegitimate targets is
not exhaustive and cites only some of the wrongful acts attributable to the UPDF in the course of
this fighting. Nonetheless, it gives a very good idea of the scant importance attached to the basic
rules of humanitarian law by the Ugandan troops on this occasion. In this connection also, the
United Nations inter-agency assessment mission furt her confirmed that the Ugandan forces had
95
used several school premises to la unch attacks and as fallback positions . Thus there is no
92United Nations Observer Mission in th e Democratic Republic of the Congo, “Historic Record of Kisangani
Cease-Fire Operation”, Lt.-Col. Danilo Paiva, 19 June 2000; RDRC, Ann. 84.
93
Ibid., p. 12.
94
Ibid., p. 25.
95United Nations, doc. S/2000/1153, 4 December 2000, para. 59; RDRC, Ann. 38. - 35 -
shortage of sources for establishing more precisely the responsibility of Uganda for violations of
humanitarian law during this fighting.
14. However, here too, the Respondent seeks to evade its responsibility for these acts by
claiming that the MONUC report, in particular, cannot be used to judge whether there has been any
violation of humanitarian law by Uganda, since it fails to state the circumstances in which the
various civilian targets mentioned above were hit by Ugandan fire. Uganda stresses in particular
that the MONUC observations refer to the presen ce of Rwandan military targets among the houses
hit by Ugandan artillery, the effect of which would be to make those targets legitimate 9. Even
44
assuming that this argument were tenable and that the recourse to force by the Ugandan army
against these targets did not cause disproportiona te damage to the population and to civilian
property, in any event the justification could not hold good for all the buildings targeted by the
UPDF. Thus Uganda has ⎯ quite rightly ⎯ refrained from contending that Kisangani cathedral,
the city hospital or the United Nations headqua rters were legitimate ta rgets because these various
sites were alleged to shelter enemy fighters. Similarly, it is difficult to see how Uganda could deny
that schools had been used by its troops, a fact expressly mentioned by the United Nations
inter-agency mission. It is thus in vain th at the Respondent seeks to challenge these various
documents by claiming that none of them can be used to show that Ugandan forces were
responsible for serious violations of humanitarian law in Kisangani in June 2000.
15. It should furthermore again be stressed th at this is only a particularly egregious case of
failure by the UPDF to comply with humanitarian law. Unfortunately the Kisangani precedent is
not an isolated case, as witness, for example, a report by a Congolese non-governmental
organisation, which refers, inter alia, to dozens of civilian casualties in Beni in November 1999 as
a result of indiscriminate fire by Ugandan soldiers in response to an attack by Mai-Mai fighters. It
is significant that Uganda included no denial of this report in its Rejoinder, thus admitting that it
was correct. Such indiscriminate attacks can also be seen in more recent periods, inter alia the
shelling of the residence of the Governor of Ituri in Bunia in August 2002, in which the Ugandan
97
army deliberately targeted civilians . According to a direct witness of the events, the UPDF
96
RU, p. 263, para. 561.
97
See inter alia the 2004 MONUC report cited previously, p. 21, para. 49. - 36 -
attack, which caused the loss of several lives and s ubstantial damage to property, was aimed at the
Governor himself because he had called the Ugandan officers together the day before to ask them
98
to show moderation and not to take sides with any of the rebel factions fighting in Ituri . Here
again the brutality of this attack and the indiffe rence to the fate of non-combatants cannot fail to
45
impress.
In conclusion, then, violati ons of humanitarian law by Ugandan forces in various combat
situations on Congolese territory are clearly establishe d. Once again, the victims of these were the
civilian populations of the parts of the Congo occupied by the Ugandan army. I am now going to
deal with the final category of human rights violations ⎯ the recruitment of child soldiers in the
DRC.
IV. Recruitment of child soldiers
16. Mr.President, Members of the Court, Congolese children have not been safe from the
practices employed by the Ugandan army in the regions of the DRC over which they exercised
control. Thus several hundred of them were recruited by the UPDF and taken to Uganda for
ideological and military training. This recruitment of child soldiers was also attested to by the
Secretary-General of the United Nations in his reports on MONUC, which state that many
Congolese children had been abducted in August2000 in the areas of Bunia, Beni and Butembo
99
and taken to Uganda for military training in the Kyankwanzi camp . This situation is also
confirmed by Human Rights Watch, which refers in its March2001 report to the situation of
100
hundreds of young Congolese recruits trained in Uganda . These children were able to leave this
98
Report entitled “ITURI: Covered in blood”. Violence ta rgeted on certain ethnic groups in the north-east of the
DRC”, July 2003, pp. 21-22 (http://www.hrw.org/french/reports/2003/ituri0703/).
99
Fifth Report on MONUC, United Nations doc.S/2000/ 1156, 6December2000, Para.75, RDRC, Ann.30;
seventh report on MONUC, United Nati ons doc. S/2001/373, 17 April 2001, para. 85, RDRC, Ann.32. See also, in
general terms, the fourth preliminary report submittethe United Nations General Assembly by the United Nations
Special Rapporteur on the human rights situation in th e Democratic Republic of the Congo, doc.A/55/403,
20September2000 and the Amnesty Inte rnational report entitled “DRC–human di gnity reduced to zero”, May2000,
para. 5.2, RDRC, Ann. 89.
10Report entitled “Uganda in the east of the DRC: a presence which kindles political and ethnic conflicts”,
March2001, sect.V, p.4, RDRC, Ann.83; not e92 refers to the following reference: “ Hundreds of Congolese Rebels
Training in Uganda”, East African (Nairobi), 28 September 2000. - 37 -
training camp for final repatriation to the Congo at the beginning of July 2001 only after persistent
efforts by UNICEF and the United Nations 101.
17. Despite the accumulation of sources confirming the reality of this situation, Uganda in its
46 latest written pleadings violently disputes the Demo cratic Republic of Congo’s allegations on this
point. In the Respondent’s view, Congo is confining itself to quite general accusations
unsubstantiated by any evidence and can provide mo re specific accusations only by distorting the
102
truth and by misquoting the documents cited to in the Congolese Reply . According to Uganda, it
is not its armed forces but two rebel movements that recruited these child soldiers 103. With
incredible cynicism, the Respondent asserts that the “incident” (the term used in its Rejoinder) just
referred to was in fact an operation by Uga nda, jointly with UNICEF and “various other
non-governmental organisations”, to rescue child so ldiers from Bunia region, seeking to save them
104
from the clashes between Hema and Lendu that were raging in that part of the Congo at the time .
Rather than being subjected to ideological and military training there, the Congolese children taken
to Uganda were said to have received medical a nd psychological treatment in a school which had
105
nothing military about it . This remarkable humanitarian gesture is claimed to have earned
Uganda expressions of gratitude from UNICEF and from the United Nations itself 106. Thus the
version of the facts submitted by the Democratic Republic of Congo is said to be pure fantasy and
contrary to reality in all aspects.
18. This violent attack by Uganda on the Congo ’s methodology in this part of the case is
completely surreal in the way it denies clear fact s. Congo intends to address this issue very
thoroughly. First of all, it must be asked how the Respondent can, in the same breath, claim on the
one hand that it is the rebel movements that recrui t the child soldiers, and at the same time that
these children were sent to Uganda to be given medical and psychological aid. There are two
101
Seventh report on MONUC, United Nations, doc. S/2001/373 , 17April 2001, para. 85, RDRC, Ann. 32; ninth
report on MONUC, United Nations, doc. S/2001/270, 16 October 2001, para. 54, RDRC, Ann. 34.
102
“Where the DRC attempts to provide more specific examples of Uganda recruiting child soldiers, she does so
only by distorting the truth and by misquoting and mischaracterising the publications wh ich she cites”, RU, p.271,
para. 580.
103
RU, p. 273, para. 583.
10Ibid., p. 271, para. 581.
10Ibid.
10Ibid., p. 272, para. 582 and p. 272, para. 585. - 38 -
possibilities: either these were actually child sold iers recruited by rebel movements, but then what
would be the sense in offering them treatment in Uganda rather than the military training which
47 was the purpose of their recruitment? Or th ese children did in fact receive medical and
psychological treatment in Uganda; but then why claim that they had been recruited as child
soldiers by the rebel movements in question? In any event, Mr. President, Members of the Court,
there are contemporary official documents which categorically refute the version of the facts
submitted on this point by the Respondent. To be specific, these are two UNICEF press
communiqués, completely unambiguous in content, wh ich you will find in your judges’ folder at
tabs 31 and 32. Allow me to quote brief excerpts, which will put an end to any doubt on this issue.
In the first communiqué, dated 9 February 2001, UNICEF expresses its delight that “the Ugandan
Government is granting full access to a political and military training camp (italics mine) housing
child soldiers from the Democratic Republic of Congo” 107.
In a second communiqué, of July the same year, the humanitarian body announces the return
of a first group of children, while making quite cl ear the nature of their earlier presence in Uganda,
and again I quote UNICEF here: “Before being tr ansferred to UNICEF-Uganda, the children had
108
been undergoing political and military training since August 2000 in Kyankwanzi.”
UNIC spefks political and military training, in a political and military training camp,
Mr.President, not of medical and psychological care in a children’s holiday camp. If UNICEF
wishes to thank the Ugandan Government, it is for finally having given the humanitarian
organizations access to this political and military training camp, over six months after hundreds of
Congolese children had been taken there, and for havi ng collaborated in their repatriation. It is
certainly not, contrary to what the Respondent would have us believe, for having taken these
children to Uganda. The version of the facts prese nted by Uganda in its last written pleadings is
thus roundly contradicted by documents produced in tempore non suspecto by an authority
48 completely independent of the Parties to the c onflict. The MONUC Report of 2004, which I have
107
“UNICEF applauds agreement with Uganda on child soldiers”, UNICEF press communiqué of
9 February 2001,ttp://www.unicef.org/newsline/01pr12.htm).
10“First Group of Congolese Children Returned Homfrom Uganda”, UNICEF press communiqué of 5 July
2001,http://www.unicef.org/newsline/01prbunia1.htm). - 39 -
already mentioned several times, also confirms this situation without the slightest ambiguity 10.
The recruitment and training of child soldiers by Uganda are thus manifestly established beyond all
reasonable doubt.
19. Other types of violations could also have been mentioned in this presentation, such as
acts of torture or inhuman and degrading treatment meted out by the UPDF forces to their
Congolese prisoners. The Democratic Republic of the Congo has already set them out in ample
detail in its Reply110, to which I would ask the Court to re fer, and which we will therefore not
revert to again here. As a result of the various pa rticularly egregious situations with which I dealt
at some length this morning, it is ultimately, Mr. President, by the very heavy human toll of its
military presence of almost five years in vast areas of the Congo that the Respondent is now
confronted. And it is easy to understand why it has no desire to face up to this toll, so disastrous
and horrible is it. Yet it is this reality thnow has to be faced. And as Professor Olivier Corten
will now briefly explain. giving a general overview of Uganda’s various attempts to refute this on
evidentiary grounds, none of these objections pr oves to be founded, all the elements coming
together to confirm Uganda’s overwhelming responsibility in this area.
Mr. President, Members of the Court, thank you for your attention. I would ask the
President to give the floor to Professor Olivier Corten, who is going to conclude the DRC’s oral
argument on the question of human rights. Thank you.
Le PRESIDENT : Merci, Monsieur Kala la. Je donne maintenant la parole au
professeur Corten.
Mr. CORTEN: Thank you, Mr. President.
T HE INTERNATIONAL RESPONSIBILITY OF UGANDA FOR SERIOUS HUMAN RIGHTS
VIOLATIONS IS CLEARLY ESTABLISHED
1. Mr. President, Members of the Court, my colleagues, ProfessorPierreKlein and
Maître Tshibangu Kalala, have just demonstrated to you that Uga nda violated international law
49
both in respect of its lack of vigilance or of due diligence, especially in Ituri Province, and in
109
Loc. cit., p. 46, para. 145 and p. 47, para. 148.
11RDRC. - 40 -
respect of acts directly committed by its agents in occupied Congolese territories. Thus the part of
Congo’s Application relating to human rights violat ions can be summarized as follows: Uganda is
responsible as occupying power for huma n rights violations committed by its de facto or de jure
organs, but also for violations resulting from its failu res to prevent or punish violations in all parts
of Congolese territory that were under its control.
2. How does Uganda seek to refute this allegation of responsibility? It does not deny that, in
the words of the Court itself, “grave and repeat ed violations of human rights and international
humanitarian law, including massacres and other atrocities, have been committed on the territory of
the Democratic Republic of the Congo” 111. Nor does it deny invading certain parts of that territory,
or keeping troops there for several years. At the same time, however, Uganda does deny any form
of responsibility for the tens of thousands of victims recorded in the occupied territories. In short,
the Ugandan army was certainly there, but it did nothing, saw nothing and heard nothing. Uganda
is thus asking the Court to exonerate it of all responsibility: it says that no deaths, no injuries and
no damage resulted from its activities during the five years or so that its occupation of Congolese
territory lasted.
3. How can Uganda seriously defend such a position? First, by purely and simply denying
its responsibility as occupying power and imposi ng an excessively high standard on Congo in
regard to the burden of proof. Secondly, by claiming that the evidence submitted by Congo
testifying to the involvement of the Ugandan army in many human rights violations is too general,
inaccurate or biased. Neither of these arguments is tenable, Mr.President, as I intend to show in
this brief submission.
50 I. Establishment of Uganda’s responsibility as occupying power
4. The first of Uganda’s arguments is as follows, in the words of its Rejoinder:
“Because Uganda is not an ‘occupying State’, she cannot be held responsible
for events in the DRC simply on that basi s, without evidence that troops or other
112
persons under her control actually committed specific unlawful acts.”
111
Provisional Measures, Order of 1 July 2000, I.C.J. Reports 2000, p. 128, para. 42.
11RU, p. 246, para. 525. - 41 -
Thus Uganda proceeds from a single premise; it is not an occupying State. From this it
draws a single conclusion: Congo would have to show that each and every human rights violation
had been committed by persons under the control of Uganda.
5. Professor Salmon and Professor Klein have demonstrated to you that this premise is
clearly erroneous, the former in general terms, the latter with regard to Ituri. The Respondent itself
admitted, in signing the Luanda Agreement, that Congolese territories were, to cite the precise
language of Article2, paragr aph3, of the Agreement, “under the Uganda control” 113. It can
therefore be characterized as an occupying Power within the meaning of international law.
6. Since the Ugandan premise is erroneous , the conclusions drawn from it are equally
erroneous. Here we must return to the legal rules of occupation and draw certain conclusions from
them in terms of the burden of proof. As occupyi ng State, Uganda can be held responsible for any
act committed by it, but also for any act tolerated by it in the territory that it controlled. Thus it is
not enough for Uganda to critic ize evidence adduced by Congo by claiming that it does not
specifically implicate its agents. Uganda must assist in establishing the facts by showing that it
took all necessary steps to prevent or punish human rights violations. In a sense, the burden of
proof in an occupation situation is shared. In an y event, inasmuch as violations in the occupied
territories have occurred ⎯ which, it must be stressed, Uganda does not deny ⎯ the occupying
Power cannot simply confine itself to denying its direct involvement.
51 7. That is doubtless why Uganda is insisti ng that its troops in Congolese territory were
subject to a strict code of discipline. I quote from the Rejoinder:
“Attributing wrongs to Ugandan soldiers is particularly suspect in view of the
fact that the UPDF has always strenuously en forced military discipline. UPDF forces
are subject to a114rict Operational Code of Conduct which includes the following
provisions . . .”
Several excerpts from this code are then reproduced in extenso, covering more than two
115
pages of the Rejoinder . Thus Uganda’s argument consis ts in quoting excerpts from its own
regulations in order to show that it could not have violated interna tional law. Hence we learn that,
11Art. 2, para. 3, of the Agreement; RU, Ann. 84.
114
RU, p. 254, para. 547.
11Ibid., pp. 254-256, para. 547. - 42 -
according to the code of military discipline, Ugandan soldiers must not steal, or kill civilians or
beat or molest them.
8. Had it not been put forward in so tragic a context, this argument would be frankly
laughable. Thus it would suffice for certain rules aimed at controlling the conduct of an individual
to exist for that individual to be deemed actually to comply with them, at all times and in all places.
It is obviously to be wished that this were so. But one does not have to be a genius to be aware that
the reality very often diverges from the models of conduct described in books ⎯ particularly in the
case of military manuals. If this Ugandan argument were to be accepted, breaches of rules of
international humanitarian law would virtually cease to exist in the world from now on, since there
are doubtless very few military manuals which order the members of armed forces to loot, rape,
massacre, etc. As to the special case of the Ugandan army, the Democratic Republic of the Congo
will listen attentively to the comments of the Res pondent on this excerpt from the report of its own
Commission of Inquiry ⎯ according to which, I cite the Porter Commission ⎯ “UPDF has
116
revealed a lack of discipline which has shamed Uganda on the International Scene” .
9. Mr. President, Members of the Court, Uga nda obviously cannot merely cite its own code
of discipline. As occupying Power, it must show not only that it did not participate directly in the
52
many human rights violations that have occurred in the territories under its control, but also that it
did not encourage or tolerate them, not just in documents but in fact, on the ground. While such a
conclusion may not please our opponents, all of the evidence based on testimony taken in the
occupied territories supports the contrary view.
II. Various mutually corroborating sources confirm the involvement of Uganda in violations
of human rights in the occupied territory
10. Thus I now come to the refutation of the second major argument put forward by Uganda.
According to the Respondent, the evidence submit ted by Congo in its written pleadings is too
general, inaccurate or biased. To cite the Re joinder, “[M]any of the publications on which the
116
Judicial Commission of Inquiry into allegations of illegal exploitation of natural resources and other forms of
wealth in the Democratic Republic of Congo 2001, Final Report, November 2002, p. 2003;
http://www.mofa.go.ug/speeches. - 43 -
DRC relies merely assert wrongs done to civ ilians and do not single out Uganda as the
blameworthy party” 117.
Thus, although evidence of human rights violations is not contested, there is said to be
insufficient proof of Uganda’s involvement.
11. Mr. President, Members of the Court, there is not enough time here to deal with each of
the documents expressly citing Ug anda as responsible for serious human rights violations in
Congolese territory. My colleagues PierreKlein a nd TshibanguKalala have cited several this
morning, and in fact the Congolese written pleadings are replete with them. But since Uganda
seems to base its entire argument on this point, allo w me to cite by way of example some excerpts
from the special report prepared by MONUC and pub lished in July 2004. You will find the pages
from which the excerpts were taken in your judges’ folder, reference 30. I quote:
⎯ “UPDF carried out its first attacks on the village of Loda, located between Fataki
and Libi, in the night of 29 to 30May1999, burning it down and burning alive
several elderly persons and women . . .” 118;
⎯ “UPDF, together with Hema militias, continued their punitive actions, burning
53 down villages of first the collect119té of Walendu of Pitsi, then of Walendu Djatsi,
from 1999 to the end of 2001” ;
120
⎯ “Hundreds of localities were destroyed by UPDF and the Hema South militias.”
Mr.President, this grim catalogue could be continued for much longer. These excerpts do
not refer to “some” massacres or “some” attacks, but clearly specify that these massacres and
attacks, these burnings of villages, these acts of d estruction, were carried out by the “UPDF” or,
still in the words of the report, the “Ugandan army”.
12. Again, I have confined myself to a few excerpts chosen from only one report on the
situation in occupied territory. However, it is not just MONUC, but also the UnitedNations
121 122
Special Rapporteur on the human rights situation in the Congo , UNICEF , transnational
11RU, p. 247, para. 529.
11Doc. S/2004/573, 16 July 2004, p. 11, para. 19; emphasis added by the DRC.
119
Ibid., emphasis added by the DRC.
120
Ibid., p. 12, para. 21; emphasis added by the DRC.
12RDRC, p. 319, para. 5.12, p. 324, para. 5.21, p. 331, para. 5.36.
12Ibid., p. 331, para. 5.35. - 44 -
123 124
independent NGOs such as Amnesty International or Human Rights Watch , or Congolese
national NGOs 12, or again representatives of the Catholic Church 126, which the Democratic
Republic of Congo has cited in support of its accusa tions. These sources, Mr. President, are in no
way “biased”, as Uganda suggests. These are reliabl e, varied and neutral sources, which all arrive
at the same conclusion: Uganda, as the occupying power, can be held responsible for numerous
human rights violations in Congolese territory.
13. Mr. President, Members of the Court, in a few days Uganda will no doubt come and
explain to you that such and such a passage in such and such a report does not mention the identity,
the rank or the colour of the uniform of such and such a criminal, nor the precise circumstances in
which such and such a crime w as committed. But in these proceedings Congo is not seeking to
indict specific individuals. The Democratic Re public of Congo is not addressing the International
54
Court of Justice as a criminal tribunal, asking it to pass judgment on each of the tens of thousands
of crimes committed in the territories occupied by Uganda. On the other hand, Congo is asking for
the Ugandan State to be held responsible. In this connection it is necessary ⎯ but suffices ⎯ to
show that agents of the Ugandan State, whatev er their identity or position, have committed or
tolerated violations. All of the existing evid ence clearly establishes this, and the Democratic
Republic of Congo is simply asking the Court to draw the necessary conclusions from it in terms of
Uganda’s international responsibility.
14. Mr.President, Members of the Court, the responsibility of Uganda for the illegal
exploitation of natural resources which continued in the Congo throughout the period of occupation
can also be established, as Congo will demonstrate this afternoon. I thank the Court for its kind
attention.
12Ibid., p. 324, para. 5.22, p. 329 para. 5.30.
124
Ibid., p. 326, para. 5.25, p. 329, para. 5.31, pp. 330-331, para. 5.34.
12Ibid., p. 327, para. 5.28.
12Ibid., p. 332, para. 5.37, p. 333-334, para. 5.40. - 45 -
The PRESIDENT: Thank you, Professor Corten.
This brings to a conclusion this morning’s hearings. The Court will resume the hearings this
afternoon at 3 o’clock. This sitting is now closed.
The Court rose at 1.05 p.m.
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Translation