CO
CR 2005/9 (traduction)
CR 2005/9 (translation)
Mercredi 20 avril 2005 à 10 heures
Wednesday 20 April 2005 at 10 a.m. - 2 -
8 Le PRESIDENT : Veuillez vous asseoir.
La séance est ouverte. Avant de passer la parole à l’Ouganda, je voudrais vous informer que
le juge Higgins, pour des raisons dont elle m’a dûment fait part, ne pourra aujourd’hui être présente
sur le siège.
M. Suy, vous avez la parole.
Mr. SUY:
T HE QUESTION OF THE “ILLEGAL ” EXPLOITATION OF NATURAL RESOURCES
1. Mr. President, honourable Members of the Court, it is both a great honour and a privilege
to appear again before your distinguished Court, on this occasion to present to you this morning, on
behalf of Uganda, arguments on the question of the exploitation of the natural resources of the
Democratic Republic of the Congo (DRC).
Over the coming two hours you will be able to see that there are numerous points of
disagreement between the arguments that I shall seek to present to you on behalf of Uganda and
what was said last week by Professor Sands on behalf of the DRC. However, there is at least one
thing on which we all agree: this is the first time ever that a State has asked this Court to hold
another State internationally responsible on account of “illegal exploitation” of its natural resources
and of violation of the “principle of permanent sovereignty” of its people over its resources
9 2. This very serious charge, which is accompanied by a number of references to the
celebrated resolution1803 of the United Nations Ge neral Assembly, and which seeks to resurrect
the ghosts of colonialism in Africa, is not levelled at a great power or at some former colonial
power, seized with a sudden nostalgia for its past. It is directed at a neighbour country itself the
product of the process of decolonization, to which the Applicant ascribes th e basest of intentions
and most odious of motives. Thus the Democrat ic Republic of the Congo considers that the
exploitation of its national resources was the true objective of the “crime”, the initial cause, which
explains “everything”. In the words to you last week of Maître Tshibangu Kalala: “The aim of the
war waged by Uganda in the Democratic Republic of the Congo was to topple
1
See Professor Sands’ presentation in CR 2005/5, p. 15, para. 1.
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President Laurent-Désiré Kabila’s régime and to exploit illegally the natural wealth of the
Congo.” 2
3. Mr.President, Members of the Court, I hope that the detailed presentations of the
colleagues who preceded me have convinced you that the aim of Uganda’s military operations was
not to overthrow President Laurent Kabila, but to respond to ongoing grave threats to her security.
For my part, I shall now seek to show you that the DRC’s accusations that Uganda engaged in “the
3
illegal exploitation of Congolese natural resour ces... by pillaging its assets and wealth” are
unfounded, and that Uganda has not violated th e “principle of permanent sovereignty of the
Congolese people over its natural resources”.
4. In order to do so, I shall proceed in two stages. First, I shall examine the methods
employed by the DRC, both in its written plead ings and in oral argument, in order to establish the
facts, and set out a certain number of objections to them (I). Then I shall address the fundamental
question of the DRC’s legal characterization of the facts in order to demonstrate to the Court the
weaknesses in the Congo’s legal argument (II).
I. Objections to the manner in which the DRC has sought to establish the facts
5. Establishing the truth of the facts mean s providing proof that the allegations made
correspond to the reality. To cite a definition fro m an authoritative dictionary, “proof” means: “an
operation resulting in a clear and convincing perception (at least in terms of law) of the truth of a
proposition initially regarded as doubtful” 4.
6. Thus the issue in this case is at what point and in respect of which precise facts it may be
said that the Congo has established in a “clear a nd convincing” manner the truth of allegations
“initially regarded as doubtful”. According to this Court’s established jurisprudence, the answer is
10 that the facts must be established in such a way as to leave no room for “reasonable doubt” 5. Both
Parties seem to be in agreement on this jurisp rudence, which thus requires that the facts be
established “beyond all reasonable doubt”. However, the manner in which the Congo has sought to
2CR 2005/2, p. 40, para. 72; emphasis added by Uganda.
3
RDRC, p. 398.
4A. Lalande, (ed.), Vocabulaire technique et critique de la philosophie, Paris, PUF, 3rd ed., 1993.
5See, for example, Judgment of 9 April 1949, Corfu Channel case, Merits, I.C.J. Reports 1949, p. 18.
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establish the facts involves a lack of rigour in relation to its interpretation of this principle, on
which I should like briefly to address to you(A ), before examining the sources relied on by the
DRC in its argument, namely the report of the Porter Commission, extensively cited in its oral
argument(C), and the reports of the United Na tions Panels, extensively cited in its written
pleadings (B).
A. The lack of rigour in the manner in which the DRC has sought to establish the facts
7. There is a substantial lack of rigour in the way in which the Congo has sought to establish
the facts.
8. Thus the Congo has a number of times asked the Court to render a judgment “declaratory
in character”, at the present phase of the proceedings and to reserve for a later phase the question of
the “form” and “amount” of any reparation 6. It is only at a subsequent stage, according to the
DRC, that it “must specify the nature of the in jury and establish the causal link with the initial
wrongful act” 7. However, in so arguing the Democratic Republic of the Congo completely
excludes from the current debate the issue of the injury, which, however, is the condition sine qua
non for the engagement of a State’s international responsibility. As Messrs.Combacau and Sur
have made clear in their manual of Public International Law:
“A State cannot invoke another State’s responsibility, even where the
requirements in regard to the originating act are met, unless it has suffered some
‘injury’. That will normally represent the measure of the reparation due to the
victim... [I]t is also an element in the absence of which a State’s responsibility
simply cannot be engaged.” 8
Similarly, in a general course taught by him a few years ago on premises next door to these,
at the Academy of International Law, Professor Prosper Weil emphasized that the classic doctrine
of international law takes a clear position: “No injury, no international responsibility.” 9
11
Professor Weil explained that this position was based on
“the numerous judgments and arbitral awards which grant reparation to a State only
after finding that the latter has suffered injury as a result of the wrongful act (or fault)
6See speeches of Professors Sands, CR 2005/3, p. 20, para. 8, and Salmon, CR 2005/5, p. 56, para. 20.
7
Ibid., Salmon, para. 20.
8J.Combacau et S.Sur, Droit international public, Paris, Montchrestien, 6thed ., 2004, p.525; emphasis added
by Uganda.
9P. Weil, Le droit international en quête de son identité, RCADI, 1992-VI, Vol. 237, 1996, p. 340.
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of another State, but which refuse any form of reparation to a State which has been
unable to establish that it has suffered injury as a result of a wrongful act (or fault) of
another State” .10
9. Even if the Court were thus to accede to the DRC’s request that the “form” and precise
“amount” of the reparation should be determined in a subsequent phase, that would not excuse the
Congo from its obligation at the present stage to demonstrate the precise injuries suffered and to
prove that they were suffered directly by the State itself, given that any mediate injury suffered by
private individuals could be taken into account by this Court only after local remedies have been
exhausted, in accordance with the procedures for diplomatic protection.
10. I have a second observation, linked to the preceding one, regarding what appears to be
our opponents’ covert strategy. Relying on its argument for a phased procedure, the DRC does not
appear to regard itself as being under an obligation precisely to establish all the facts at this stage.
It seems rather to be seeking to raise a Kafkae sque presumption of guilt against Uganda, whereby,
if a single fact is proved, that must necessarily mean that all of the facts are proved. Uganda
certainly does not seek to attribute to its opponent intentions which it does not have. It confines
itself here to recording its view that the sound administration of justice requires that, as of now, the
DRC must exhaustively establish the facts and that it must be able to show that each one of those
facts is an “internationally wrongful act” attributable to Uganda ⎯ an issue to which I shall return
in the second part of my presentation.
11. A final remark concerns a dubious technique of equation employed by our opponents. In
particular, they sought to equate the findings of the Porter Commission report with those contained
in the reports of the United Nations Panel of Experts on “the illegal exploitation of the natural
resources” of the DRC, and hence with the written pleadings filed by the DRC with this Court. To
cite just a few assertions from what Professor Sands told you last week:
12 ⎯ “the Porter Commission confirmed the conc lusions of the reports of the United
11
Nations expert panel” ;
⎯ “The Final Report of the Porter Comm ission unambiguously confirms the DRC’s
12
allegations” ;
10Ibid.; emphasis added by Uganda.
11
CR 2005/5, p. 17, par. 4.
12Ibid., p. 29, par. 5.
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⎯ “The United Nations reports, the Security Council resolutions, the Final Report of
the Porter Commission, the evidence before the Porter enquiry and all the other
material before the Court lead inevitably and inexorably to a ‘single
13
conclusion’.” .
12. This wholesale equation of the findings of the Porter Commission with those of the
United Nations Expert Panel, a bundantly quoted and reproduced in the DRC’s written pleadings,
does not however correspond to the reality. That is a fundamental issue in this case which will
require exhaustive analysis. But first I should like briefly to remind the Court of the controversial
nature of a number of the findings in these reports of the United Nations Expert Panel.
B. The controversial nature of a number of the findings in the reports of the “Panel of
Experts”
13. Reading the DRC’s reply, it is clear that the various allegations against Uganda on
account of the “illegal” exploitation of the Congo’s natural resources are very largely founded on
the reports prepared by a “Panel of Experts” set up by the Security Council for purposes of conflict
management, and in particular on the Panel’s fi rst report, presented in 2001, which, however,
aroused a storm of protest in New York.
14. I would begin by reminding you, Mr.President, Members of the Court, that, as the
Security Council itself stressed, this Panel was not set up in order to establish responsibility or to
ascertain the truth. According to the statement by the President of the Security Council of
14
2 June 2000 defining the Panel’s mandate , its mission was to “collect information” ⎯
“information” possibly contradictory, possibly true, possibly false, but the purpose of which was to
enable the Council to co-ordinate its action in connection with the management, whether preventive
or reactive, of the overall conflict. It is thus clear that the Panel was established with a quite
precise aim in view: contributing to political action by the Council. Thus the aim of its reports was
13 not to produce “evidence”, but, to quote the words of the Russian de legate to the Security Council,
15
to provide “food for thought that requires further study” .
15. The “flexible” nature of the Panel’s missi on explains, moreover, its self-proclaimed aim
of approaching the question of “information gathering” with great “flexibility”, the word used in its
13Ibid., p. 31, par. 9; emphasis added by Uganda.
14
S/PRST/2000/20.
15S/PV.4642 of 5 November 2002, p. 27.
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first report 16⎯ even if the initial Panel should certainly be criticized for having frequently
transformed flexibility into laxity, by failing even to respect the methodology which it claimed to
be seeking to apply and, in its first report, betraying a degree of bias which provoked criticism from
a number of States.
16. Thus, reading the reports, it is clear that the methods used do not permit the information
which they contain to be regarded as “facts established beyond all reasonable doubt”. The constant
recourse to unidentified “sources”, to unreferenced “documents”, to hearsay, or even to
17
“rumour” , the use of approximations, or expressions such as: “there are indications that . . .”, “it
would seem that...”, “the Panel is inclined to be lieve that...”, demonstrate the unreliability of
many of the allegations contained in these reports. However, in this complex matter before us
today, it is essential that the veracity of these sour ces be checked, in order that we may distinguish
between deliberate falsehood, war propaganda, political intrigue and, above all, wholesale
“denunciations” by individuals or entities having possessed ⎯ and still possessing ⎯ massive
interests in the exploitation of natural resources in the DRC, who might well wish to eliminate the
competition. In a situation of conflict like this one, the criteria adopted to prove and corroborate
information, whether provided by “walk-ins”, motivated “volunteers”, “disinterested” businessmen,
or traditional enemies, should have been far strict er than those apparently applied by the Panel,
particularly in its first report.
14 17. The Panel can, moreover, be criticized for having failed to interview key witnesses or to
consult readily accessible public documents, which could, however, have enabled it to avoid certain
blunders. Thus, for example, the “DARA-Forest” case, presented in the first report as a “case
study” representing an excellent example of “ how a company used illicit business practices and
complicity with occupying forces and the governme nt”, proved in reality to be an example of
methodological error on the part of the Panel (as indeed was demonstrated by the Porter
18
Commission and by Uganda's Rejoinder ).
16S/2001/357, para. 9.
17
See S/2002/1146, para. 117.
18Rejoinder, paras. 390-395.
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18. Reading the Security Council minutes, we can see that a number of countries, although
not directly involved in the conflict, challenged th e legal validity of the information in the reports,
and indeed the reliability and veracity of certain of that information. Confining ourselves to the
reactions to the October 2002 report, although this was not the most controversial of them, we
would cite, for example, observations by delegates of:
⎯ South Africa first of all, which states that it is “disappointed with the content of the...
report... in the methodology the Panel used in gathering its information and in the
conclusions and recommendations”. It urges that “the Security Council require the Panel to
further investigate and substantiate the allega tions and recommendations made in the report”,
believing that “it is important for the Council to act on facts, rather than on incomplete or even
19
false information” ;
⎯ next, the statement of Oman to the Security Council, which expresses its “strong concerns at
20
the wrongful allegations, factual errors, hearsay and uncorroborated information” ;
⎯ Russia points out to the Security Council that “not all agree with the conclusions and
recommendations of the report, including the Russian Federation” 21;
15 ⎯ Mauritius considers that the Panel “makes assumptions and bases itself on perceptions...
[which] are not legally valid”; it fears that the Panel’s report on occasion “aims at
22
sensationalism” ;
⎯ finally, Syria stresses the “failure to secure irrefutable evidence” and notes that “the report was
based on information provided by informers, be they companies or competing traders”, [which]
23
“affects the accuracy of the report and the credibility of the Panel of Experts” ;
19. But, over and above States, the Security Council itself has clearly indicated these reports’
lack of probative force. In resolution 1457 of 24 January 2003, the first Security Council resolution
entirely devoted to the issue of natural resources, the Council
“ Stresses that the new mandate of the Panel should include:
19S/PV.4642, pp. 9 and 11.
20
Ibid., p. 18.
21
Ibid., p. 28.
22S/PV.4642 (resumption 1), p. 2.
23Ibid., p.5.
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⎯ Further review of relevant data and analysis of information previously gathered by
the Panel, as well as any new information. .. in order to verify, reinforce and,
where necessary, update the Panel’s findings, and/or clear parties named in the
Panel’s previous reports . . .” (Para. 9; emphasis added by Uganda.)
Still more clearly, in paragraph 15 of this same resolution 1457, the Security Council:
“ Urges all States, especially those in the region, to conduct their own
investigations, including as appropriate through judicial means, in order to clarify
credibly the findings of the Panel, taking into account the fact that the Panel, which is
not a judicial body, does not have the resources to carry out an investigation whereby
these findings can be considered as established facts.” 24
20. The Panel of Experts itself seems to have drawn the necessary conclusions from these
reactions and to have admitted its reports’ lack of probative force. The reconstituted Panel was not
only honest enough to withdraw or revise many of the accusations against a number of individuals
or entities, including –– as we shall see –– against Uganda, but it also emphasized in its final report
to the Council of 15 October 2003, that
“[t]he nature of the Panel and the various mandates that it has been given precluded it
from determining the guilt or innocence of parties that have business dealings linked
16 to the Democratic Republic of the Congo. Accordingly, the Panel has restricted itself
to the narrower issue of identifying parties where it has information indicating a prima
facie case to answer.” 25
21. After this brief reminder, I will now begin examining the fundamental differences
between the findings in the reports of the “Panel of Experts” and those of the celebrated Porter
Commission.
C. The fundamental differences between the finding s in the reports of the “Panel of Experts”
and those of the Porter Commission
22. Honourable Members of the Court, in making this comparison between the Porter
Commission report and those of the Panel of Experts, I certainly do not seek to annoy you with a
tiresome exercise in comparing and contrasting. No r is it my intention to deny the existence of
certain points of agreement between the investiga tions in question as far as the individual conduct
of certain soldiers and officers is concerned. My objective is to show you that there is a very
significant quantitative and qualitative difference, which will be decisive later on when a legal
24
Emphasis added by Uganda.
25
S/2003/1027 of 23 October 2003, paras. 15 and 16.
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characterization is given to the facts, between the Porter Commission’s findings and those in the
reports (particularly the first one) of the United Nations Panel of Experts.
23. It is primarily in its initial report that the United Nations Panel levelled very serious
accusations against Uganda, accusations repeated by the Congo, without taking account of the fact
that the reports subsequently submitted by the reconstituted Panel abandoned or revised a great
many of these accusations and that the Porter Commission also rejected them. While the following
are not all of these points of divergence between the Porter Commission’s report and the United
Nations Panels’ reports, here is a series, moreove r not exhaustive, of 15 of these points, to which
Uganda would like to draw your attention:
I.The Porter Commission found that the initial Panel’s accusations that Uganda was
exploiting the DRC’s forest resources were without merit. The Commission studied in
detail the case of the company DARA-Forest, discussed at length in the report by the
Panel, which had tried to show “collusion” between timber companies in the DRC and the
17 Ugandan Government; the Commission concl uded that the Panel’s allegations were
26
“fundamentally flawed” .
II.The Porter Commission concluded that the initial Panel’s allegations that Ugandan
soldiers had looted stockpiles of timber belonging to the forest products company
AMEX-BOIS, located in Bagboka, were unfounded 27.
III. It concluded that another allegation concer ning the looting of timber, this time in respect
of the company La Forestière, was not proven either 28.
IV.The Porter Commission found that the initial Panel’s allegations concerning the
29
confiscation and looting of stockpiles of coffee in Equateur province were not proven .
V. The Porter Commission found that the initial Pa nel’s allegations that “key officials in the
Government… of… Uganda were aware of … the looting of stocks from a number of
factories” were not proven 30.
26
See “Report of the Judicial Commission of Inquiry into allegations of illegal explo itation of natural resources
and other forms of wealth in the DRC” in I.C.J., Submission by the Republic of Uganda of new documents in accordance
with Article 43 of the Statute and Article 56 of the Rules of Court, 20 October 2003, pp. 53 et seq., para. 16.
27
Id., p. 48, para. 15.1.
2Id., p. 49, para. 15.2.
2Id., p. 13, para. 11.3.3 and p. 49, para. 15.3.
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VI. The Porter Commission found that the initial Panel’s allegations that Uganda had made
31
off with a number of cars in the DRC were without basis .
VII. The Porter Commission concluded that the initial Panel’s allegations that the leaders of
Uganda “directly and indirectly appointed regional governors or local authorities” in the
Congo were unfounded. It did, however, note that the only attempted interference by a
Ugandan officer in local government was immediately denounced by the Ugandan
authorities. And the evidence clearly show s that “the UPDF tended to accept whoever
was the local authority in place, so as to be able to concentrate on providing security in the
relevant area” 32 .
18 VIII. Moreover, the Porter Commission pointed out a number of times that Uganda exercised no
jurisdiction over Congolese nationals and the rebel movements. It observed in this
connection that President Museveni of Uga nda “has publicly declared on many occasions
that the internal administration of the De mocratic Republic of Congo is for Congolese
themselves, so long as the security concerns of Uganda are addressed” 33.
IX. The Porter Commission concluded that the initial Panel’s allegations that Uganda had
34
exerted “pressure” to facilitate trafficking in three tons of elephant tusks were unproven .
X.The Commission found that the initial Panel’s accusations that Ugandan forces had
engaged in monopolistic and price-fixing practices to control the economy in the eastern
35
Congo were unfounded .
XI. It further concluded that the allegation that the RCD-ML and MLC rebels remitted to
36
Kampala a share of the taxes collected was also devoid of any basis .
XII. The Commission stated that the initial Panel’s assertion that “the political establishment in
Kampala” knew of the “illegal” activities of certain “individuals” did not appear true 37.
3Id., p. 53, para. 15.8.2.
3Id., p. 50, para. 15.4.
32
Id., pp. 78-79, para. 18.1.
33
Ibid., p. 144, para. 22.6.1.
34
Ibid., p. 72, para. 16.3.4.
3Ibid., pp. 75 et seq.
3Ibid., pp. 76-77, para. 17.3.
37
Ibid., pp. 85-86, para. 19.
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XIII. It points out the falsity of the allegation th at Uganda financed its war effort in the DRC
through a system of re-exportation 38 or in any other way connected with events in the
39
DRC .
XIV.The Commission showed that certain accusations made by the initial Panel against
President Museveni were completely false 40.
19 XV.Finally, on the basis of all of the evidence examined, the Commission expressed its
agreement with the position of the recons tituted Panel, which dropped the accusations
against Uganda. While noting, as Professor Philippe Sands recalled last week, that
“[t]here is agreement that officers to a ve ry senior level, and men of the UPDF have
conducted themselves in the Democratic Republic of Congo in a manner unbecoming”,
the Porter Commission added in the same sentence ⎯ but Professor Sands left this out ⎯
that: “There is agreement that the original Panel’s allegations against Uganda as a State,
41
and against President Museveni were wrong.”
24. The Commission later added:
“The Government of Uganda has been acquitted of any wrong doing by the
reconstituted Panel and no state institution has been found by it to be involved in
exploiting the natural resources and other forms of wealth in the Democratic Republic
of Congo.” 42
*
* *
25. By way of conclusion to this part of my statement concerning the DRC’s proof of the
facts, I would like to recall a sentence uttered before the Court last week by ProfessorSands on
38Ibid., pp. 129 et seq. (especially, p. 137).
39
Ibid., p. 170, para. 34.
40
Ibid., pp. 144 et seq.
41Ibid., p. 196, para. 40.8; emphasis added. Compare statement by Mr. Sands in CR 2005/5, p. 33, para. 12.
42Op. cit., p. 170, para. 34; emphasis added.
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behalf of the DRC: “[T]he matters upon which there may be differences [between the Porter
43
Report and the United Nations reports] are not material to the DRC’s case in the proceedings.”
26. Uganda hopes that this means that the Parties are now in agreement on the following
points:
⎯ the various accusations made against the Government of Uganda, notably in the initial report
by the United Nations Panel, and taken up in the DRC’s written pleadings do not reflect the
reality;
20 ⎯ no “order” or “incentive” was ever given to an y soldier by the Government of Uganda to
exploit any natural resources in the DRC; on th e contrary, it has been shown that clear orders
had been given in order to prevent things from getting out of hand;
⎯ the various soldiers or officers who, accordi ng to the conclusions reached by the Porter
Commission, “have conducted themselves in the Democratic Republic of Congo in a manner
unbecoming” ⎯ whatever that term may mean legally ⎯ acted in their private capacity, in
clear breach of the orders given by the highest State authorities and then tried to conceal their
conduct from those authorities ⎯ as, moreover, the Porter Commission showed repeatedly;
⎯ at no time did Uganda thus have any intention to exploit the natural resources of the DRC and
it did not do so;
⎯ the accusation that Uganda used those resources to “finance the war” is completely unfounded;
and
⎯ it follows “beyond all reasonable doubt” from the foregoing that Uganda’s military operations
in the DRC in no way aimed at “illegally exploiting the natural resources” of the Congo.
*
* *
27. With your permission, Mr. President, I would now like to move on to the second part of
my statement, which concerns the major problem of the DRC’s characterization of the facts.
43
CR 2005/5, pp. 32-33, para. 12.
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II. Objections to the DRC’s legal characterization of the facts
28. There are certain major weaknesses in the DRC’s legal characterization of the facts, and
Uganda wishes to draw the Court’s attention to at least some of these. A number of them arise
from the use of the term “illegality”, which appears in the “Reports” of the Panels of Experts and
in the Congo’s written pleadings. I propose to address this issue first(A). In the light of those
21 observations, I will then show that not only did Ug anda not violate the principle of sovereignty
over natural resources(B), but, on the contrary, it exercised a high degree of surveillance, within
the means at its disposal, to prevent any violation of the rights of the Congolese people over their
natural resources, and that that surveillance we nt as far as the unprecedented creation of the
celebrated “Porter Commission” (C).
A. The confusion arising from the use of the notion of “illegality” and the actual conditions
required to engage the international responsibility of a State
29. It is well known that the legal characterizati on of the facts is the stage in the judicial
argument when an established fact is classified “i n a legal category with a view to attributing
44
thereto the legal régime corresponding to that category” . However, apparently “putting the cart
before the horse”, the Security Council created a “Panel of Experts on the Illegal Exploitation of
the Natural Resources of the Congo”. This sugg ests that the facts had been characterized as
“illegal” even before it was known whether they actually existed!
30. Admittedly, it could be replied ⎯ and with good reason ⎯ that the Security Council is
simply a political organ and that the use of the ad jective “illegal” did not represent a precise legal
characterization. However, we are bound to note that this term, replete with ambiguity and open to
all kinds of misinterpretation, has acquired a certain force, even in this Court, having been used in
the reports of the Security Council’s “Panel of Experts”, as well as in the Memorial, Reply and oral
argument of the DRC, in which Uganda is accused of “ illegal” exploitation of the DRC’s natural
resources.
31. Uganda can only react with perplexity to the use of the term “illegal” and to the
definition of “illegality” given by the Panels of Experts and reiterated by the Congo. That
definition, which appears in the very first report of the “Panel”, contains elements which do not
44
Dictionnaire Basdevant, Paris, Sirey, 1960, p. 493. [Translation by the Registry.]
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permit the responsibility of a State to be engage d before an international court. Among the
elements of that definition given in the Panel’s first report, one finds, for example, “respect by
actors of the existing regulatory framework within the country or territory where they operate or
carry out their activities”, “the discrepancy between widely accepted practices in trade and
business and the way business is conducted in the Democratic Republic of the Congo” or even the
violation of “’soft’ law”(!) 45. Thus even the term “soft law” is brought into play to characterize
22
the facts as “illegal”, and the Panel of Experts was unable to refrain from congratulating itself, in
its final report, on having “breathed life into th e OECD [Organization for Economic Co-operation
and Development in Europe] Guidelines for Multinational Enterprises” 46! Admittedly, the fact that
47
the “Panel”, on its own admission, opted for a “b road interpretation of the concept of illegality” ,
and the reasons for that choice, are of little interest to this Court. However, the fact that the DRC is
now requesting your Court to engage the interna tional responsibility of a State on the basis of
dubious terminology, and so questionable a definition, must certainly be of interest to this Court.
32. Mr. President, honourable Members of the Court, the judicious distinction in the French
language between the term “illégalité” [illegality] (a term with little relevance in an international
society without a legislative organ and hence without any “laws”) and that of “ «illicéité»48
[unlawfulness/wrongfulness] (characteristic of something not compliant with an international
obligation) can provide us with great assistance in this matter: among the nebulous set of allegedly
“illegal” acts enumerated in the reports of the Pa nels of Experts and cited by the Congo, the Court
can only properly consider the “unlawful/wrongful” acts, that is to say violations of rules of
international law that are binding on Uganda.
33. That point is of fundamental importance, because the Reply of the DRC maintains
constant confusion between what is “illegal” and “unlawful” or “w rongful” and, at the same time,
between two different legal orders: the internal le gal order and the interna tional legal order. For
the DRC, any violation whatsoever of one of its laws or administrative acts by a Ugandan national
4S/2001/357, para. 15. Emphasis added.
46
S/2003/1027, para. 70.
4S/2001/357, para. 15.
4[Note to translators: please leave in original French.]
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must immediately be characterized as a violation of international law by Uganda and therefore
engage its responsibility! It is not necessary here to stress the fallacious nature of that argument.
23 For it is well known that the originating act giving rise to international responsibility is not an act
characterized as “illegal” by the domestic law of the State but an “internationally wrongful act”
imputable to a State.
34. This, then, is the real criterion on which th e legal characterization of the alleged facts in
our case should be founded. There may have been “ illegal acts”, that is to say violations of the
domestic law of Uganda, or of the DRC, or of both those countries at once ⎯ but such acts would
only normally be the concern of the domestic legal orders of those countries, where appropriate
proceedings could be brought. By contrast, what is of concern to this Court is whether one can
point to an “internationally wrongful act”, that is to say whether Uganda breached “an
international legal obligation in force for that State” ⎯ to cite the commentary on Article 2 of the
International Law Commission draft Articles on th e Responsibility of States for internationally
wrongful acts, adopted in 2001 49.
35. Mr. President, Members of the Court, Uganda does not deny the finding of the Porter
Commission that certain soldiers and officers, acting on a strictly personal basis and in clear breach
of the orders given by the State authorities, conducted themselves, to cite the Commission again,
“in a manner unbecoming”. This does not mean, however, that all acts of those soldiers described
by the Porter Commission should necessarily be regarded as “internationally wrongful” acts. The
fact that those soldiers, in beach of orders, engaged in “commercial activities” ⎯ and were, as
50
ProfessorSands stated, “conducting business” ⎯ in the Congo, or even the fact that some of
them “were planning to do business” 51, as Professor Sands also said, does not automatically make
this conduct an “ internationally wrongful act”. The fact that certain soldiers and officers did
everything they could to conceal their conduct from their superiors, in some cases going as far, to
quote the Porter Commission, as a “conspiracy of silence”, is no doubt a very important element in
the debate on Uganda’s compliance with the oblig ation of vigilance, but it is certainly not an
49
Report of the International Law Commission to the General Assembly of the United Nations, Official Records
(A/56/10), 2001, pp. 70 et seq.
50
CR 2005/5, p. 33, para. 13.
51Ibid.
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“internationally wrongful act”. Possible violations of “soft law” or the OECD Guidelines are not
necessarily “internationally wrongful acts”.
24 36. Last week, Professor Sands told us that, in the DRC’s view, “Uganda’s responsibility is
52
engaged in respect of ‘ all’ acts committed by its armed forces whether they were lawful or not” .
Uganda considers that it is impossible to attribute to it acts which do not constitute “ internationally
wrongful acts”, that it is impossible to speak of responsibility in the absence of any violation by
Uganda of an “international obligation in force for that State”.
37. What then were the “international obliga tions” which Uganda could be said to have
breached? The Reply of the DRC essentially identifies two: first, the principle of sovereignty over
53 54
natural resources , and secondly, the obligation of vigilance . I will now seek to show you that
Uganda has not breached either of those oblig ations. Unless, Mr. President, it would be
appropriate to take a break at this point.
The PRESIDENT: Yes, Professor Suy, I think it is time to have a break of 15 minutes, after
which you will continue your statement.
Mr. SUY: Thank you very much.
The Court adjourned from 11.05 to 11.20 a.m.
The PRESIDENT: Please be seated.
Professor Suy, please continue.
Mr. SUY: Merci, Monsieur le Président. Mr President, as I was saying at the end of the first
part of this sitting, Uganda bears no responsibility unless it has breached an international obligation
in force for that State. And it was the Congo, in its Reply, that essentially identified two
international obligations: one is the principle of Congolese sovereignty over natural resources, the
other is the obligation of vigilance. I will now endeavour to show you that Uganda has breached
neither of those obligations.
52Ibid., p. 25, para. 24. Emphasis added.
53
RDRC, pp. 302 et. seq.
54Id., pp. 306 et seq.
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B.Uganda has not violated the principle of the permanent sovereignty of the Congolese
25
people over its natural resources
38. Uganda obviously does not deny, and h as never denied, the principle of the Congolese
people’s sovereignty over its natural resources. As early as 1960, the “Declaration on the granting
of independence to colonial countries and peoples” had affirmed that:
“peoples may, for their own ends, freely dis pose of their natural wealth and resources
without prejudice to any obligations arising out of international economic
co-operation, based upon the principle of mutu al benefit, and international law...”
(A/RES 1514 (XV) of 14 December 1960).
Two years later, United Nations General Assembly resolution1803, entitled “Permanent
Sovereignty over Natural Resources”, reaffirmed this right of peoples, declaring that: “The right of
peoples and nations to permanent sovereignty over their natural wealth and resources must be
exercised in the interest of their national devel opment and of the well-being of the people of the
State concerned.” (A/RES1803(XVII) of 14D ecember1962.) This formula was taken up in
Article1 common to the two international human rights covenants of 1966, which provides that
“all peoples may... freely dispose of their natu ral wealth and resources...”. Uganda fully
endorses this right of peoples to dispose of their natural resources. On the other hand, it
categorically denies the allegation that it violated that right in the instant case.
39. In its Reply, the Democratic Republic of the Congo contends that “[t]he Ugandan
authorities and officers and men of the UPDF.. . have taken advantage of the occupation of
Congolese territory by Ugandan troops to loot and illegally exploit the natural resources and other
55
forms of wealth of the DRC” . And the DRC goes on to say: “In reality, all the indications are
that the illegal exploitation of Congolese resources is the result of orders given by the Ugandan
56
authorities” . The purpose of these allegations is clear: to substantiate the remainder of the
Congolese argument, giving your Court the impression that Uganda invaded Congolese territory in
order to appropriate the resources of its people.
40. Obviously, this is utterly false. As my colleagues have already shown, the stationing of a
small number of Ugandan troops in eastern Congo was motivated solely by Uganda’s legitimate
26 security concerns. This quite specific objective a nd the nature of the Ugandan actions are totally
55
RDRC, para. 4.01.
56
Ibid., para. 4.66; emphasis added.
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inconsistent with the theory of a plot and of exploitation put forward by the DRC. The Ugandan
forces, who did not even number 10,000 men at the height of their deployment, did no more than
maintain a presence in border regions from whic h the rebels were launching attacks against
Uganda, and in certain other localities where there were strategic airfields. This fact is totally at
variance with the scenario of “occupation” and “expl oitation” of a region as big as Germany. It is
significant, moreover, that the Security Council Panel itself recognized that security concerns
accounted for Uganda’s actions. In one of its reports, which the Reply of the DRC ⎯ otherwise so
rich in references to that source ⎯ omits to cite, the Panel emphasizes that Uganda “has some
legitimate security threats, which prompted its m ilitary intervention in the Democratic Republic of
the Congo” 57.
41. Contrary to what is claimed by the DRC, therefore, Uganda had no intention of
exploiting the resources of the Congolese people and did not do so. Contrary to the DRC’s claim,
Uganda did not seek to take ⎯ and did not take ⎯ “control of economic activities in the occupied
58
Congolese territories” . Nor was Uganda a power “administering” Congolese territory. It was the
rebels of the Congo Liberation Moveme nt (MLC) and of the Congolese Rally for
Democracy(RDC) which controlled and administered these territories, exercising de facto
authority. I have already mentioned that the only attempt at interference in this local administration
by a Ugandan officer, albeit motivated by the desire to restore order in the region of Ituri in the
interests of the population, was immediately oppo sed and disavowed by the Ugandan authorities,
who instituted disciplinary proceedings against the officer in question.
42. The assertion that “the illegal exploitation of Congolese resources is the result of orders
59
given by the Ugandan authorities” is therefore not only false, but is at variance with the final
report of the Security Council Panel. The Pane l makes a clear distinction between the parties
27 allegedly “guilty” of “illegal” exploi tation, pointing on the one hand to “the governments of
Rwanda and Zimbabwe”, and on the other to “powerful individuals in Uganda” 60.
57“Addendum to the report of the Panel of Experts on thIllegal Exploitation of Na tural Resources and Other
Forms of Wealth of the Democratic Republic of the Congo”, S/2001/1072, 13 November 2001, para. 95.
58
RDRC, p. 301.
59
RDRC, para. 4.66.
60For example, S/2002/1146, para. 13.
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43. It should also be noted in this connection that the Congo itself now seems to have
abandoned its accusations on this score. While on the first day of the DRC’s oral presentation,
Mr.Kalala announced, as I have said, that the “ai m of the war waged by Uganda” was to exploit
the resources of the Congo, in that part of its argument specifically devoted to the issue of
resources, the DRC appeared reluctant to press this charge, or to provide any evidence in this
regard. On the contrary, last Wednesday’s speeches by Mr.Kalala and ProfessorSands were
almost exclusively devoted to the individual actions of certain soldiers and officers who disobeyed
orders.
44. It is true that the DRC, being aware of the fact that the conduct in question clearly
contravened the instructions and orders given by the Ugandan authorities, devoted much of its
argument to issues of attributability under international law. But such issues, whatever we make of
them, can in no sense be used as a basis for accusi ng Uganda of violating the “principle of the
permanent sovereignty of the Congolese people over its natural resources”. Attributability is not a
philosopher’s stone, serving to transform any act by an individual into a wrongful act of the State.
Nor is it a magic wand that can be used to change the way in which we characterize an
internationally wrongful act, miraculously transfor ming an individual act of looting, committed in
violation of orders and instructions, into a heinous crime of the State, on account of the “violation
of the principle of the permanent sovereignty of the Congolese people over its natural resources”.
45. Mr.President, distinguished Members of the Court, if the logic proposed by the DRC
were to be applied, a soldier ⎯ a Belgian soldier, for example ⎯ who, in clear violation of army
regulations and orders, participated in a privat e capacity in a smuggling operation on the territory
of a foreign country, would immediately engage the international responsibility of Belgium for
violating the principle of the permanent sovereignt y of the people of that country over its natural
resources. The United Nations would also be gu ilty of many crimes involving violation of the
28
“principle of the permanent sovereignty of peoples over their natural resources”, as a result of acts
of theft or looting committed by individual soldiers participating in peacekeeping missions virtually
all over the world.
46. Uganda does not see how it is possible to apply such a novel reinterpretation of this
principle, which was shaped in a precise historical context (that of decolonization) and has a very
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precise purpose. It respectfully requests the Court to reject this deeply offensive charge levelled at
Uganda by the Democratic Republic of the Congo.
47. With your permission, I should now like to turn to the last part of my presentation, in
which I shall seek to demonstrate that Uganda complied with the obligation of means incumbent on
it under international law with regard to the conduct of its nationals.
C. Uganda complied with the obligation of means with regard to the conduct of its nationals
48. Uganda formally rejects the arguments concerning the duty of vig ilance contained in the
Reply of the DRC 61and the conclusions it draws therefrom. The assertion that Uganda had a duty
of diligence with regard to the Congolese rebel gro ups is manifestly erroneous, for a number of
reasons, including the fact that Uganda did not control those groups and had no power over the
administrative acts of those de facto authorities. That said, Uganda considers that, within the limits
of its capabilities, it exercised a high degree of vigilance to ensure that its nationals did not, through
their actions, infringe the Congolese people’s right to control their natural resources. In order to
deal with this issue, and answer the DRC’s allegations, we must first look at the fundamental
question of Uganda’s failure to prohibit trade in basic products with the territories controlled by the
rebels (a), before examining what positive measures were adopted by Uganda (b).
(a) The fundamental question of the failure to prohibit trade in basic products with the
29 territories controlled by the rebels
49. This is a major point of disagreement be tween Uganda and the DRC. Thus it is clear
from the DRC’s Reply that the accusation that Uganda breached its “duty of vigilance” is
essentially founded on Uganda’s failure to prohibit trade ⎯ although such trade was going on well
before the conflict started ⎯ between its nationals and the territories controlled by the rebels in
eastern Congo. For example, the fact that the United Nations Panel “not ed that consumer goods
and other merchandise found in Gbadolite and Bunia originated mostly in Ug anda”, the fact that
“[d]uring its field visit to Bunia, the Panel members witnessed the unloading of beer crates from an
aircraft coming from Uganda”, or the fact that “[ i]n Gbadolite, most cigarettes, beverages, toilet
61
RDRC, paras 4.71-4.81.
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62
paper etc. are imported from Uganda” ; all this is adduced by the DRC to show that there was a
“flagrant violation” 63of the Congolese people’s sovereignty over their resources and to “prove”,
again according to the Congo, that “Uganda has taken no proper steps to end the illegal exploitation
of the natural resources of the DRC by Ugandan companies or nationals and by the Congolese rebel
movements that it controls and supports” 64. This characterization of the facts, which suggests that
the export of merchandise from Uganda to the Congo proves the “ illegal” exploitation of the
Congo’s natural resources, is paradoxical to say th e least. However, matters become clearer when
we examine the DRC’s proposed definition of the expression “illegal exploitation of natural
resources”. Thus, in its Reply, the DRC states the following:
“By ‘illegal exploitation’ of natural resources the DRC means all commercial or
investment activities on its territory which are in contravention of the Congolese laws
and regulations which govern those activities . . .” 65
50. Thus, in the opinion of the DRC, any commercial transaction whatever between a
30
Ugandan and a Congolese from the eastern Congo carried out ⎯ and again I cite the Reply 66 ⎯
“without the consent of the lawful government of the DRC” constitutes “ illegal exploitation of
natural resources”. The DRC supplies a long list of the “laws” and “regulations” that have been
67
violated by these commercial transactions . So the position is becoming still clearer: if Uganda
“has not taken proper steps to put an end” to th ese commercial activities, it is in breach of its duty
of vigilance and the principle of sovereignty of the Congolese people over their natural resources.
51. Uganda cannot accept this characterization of the facts, which ignores the actual situation
on the ground and treats the rules of international law with contempt. The inhabitants of the
eastern Congo and of Uganda have been trading since time immemorial. These commercial
relations have always existed, and are readily explained both by the geography of the region and by
the needs of the populations on both sides of th e frontier, who often share the same culture and
language. In Uganda’s view, the de facto authority established in eastern Congo as a result of the
62RDRC, para. 4.25.
63Ibid.
64
Ibid., para. 4.73.
65
Ibid., para. 4.73.
66Ibid., para. 4.77.
67Ibid., para. 4.77.
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fact that it was rebel movements that controlled th is territory, not the Kinshasa Government, could
not affect these commercial relations essential to the populations’ survival, and therefore did not
impose an obligation to apply commercial sanctions.
52. It should be stressed that a large bod y of case law, both national and international,
confirms that third States cannot ignore de facto situations created on the territory of a
neighbouring State due to war or insurrection and are bound to recognize certain acts by the
de facto authorities, without this being regarded as a violation of international law. It is noteworthy
that this case law has often been developed in cases far more difficult than the present one, in that
the acts of the de facto entities were directly subject to a presumption of invalidity, in light of the
illegal nature (contrary, even, to jus cogens) of the authority exercised by them. However, this has
not prevented the courts from stressing that the duty of non-recognition does not apply to everyday
actions and transactions.
31 53. Without citing all this case law here, we should nevertheless recall the famous dictum of
the Court in its 1971 Advisory Opinion on Namibia, in which it stated:
“In general, the non-recognition of South Africa’s administration of the
Territory should not result in depriving the people of Namibia of any advantages
derived from international co-operation . In particular, while official acts performed
by the Government of South Africa on beha lf of or concerning Namibia after the
termination of the Mandate are illegal and invalid, this invalidity cannot be extended
to those acts, such as, for instance, the registration of births, deaths and marriages, the
effects of which can be ignored only to the detriment of the inhabitants of the
Territory.” 68
54. This decision in fact “internationalized” th e solution reached a century previously by the
United States Supreme Court concerning the validity of numerous acts by the Confederacy during
the Civil War. For example, the Supreme Court ha d no hesitation in recognizing the validity of all
commercial transactions during the war with Confederacy money, stating: “It would have been a
cruel and oppressive judgment if all the transactions of the many millions of people composing the
inhabitants of the insurrectionary states, for the several years of the war, had been held tainted with
illegality because of the use of this forced currency . . .” 69
68Legal Consequences for States of the Continued Presence of South Afca in Namibia (South West Africa)
notwithstanding Security Council Resolution276, Advisory Opinion of 21June1971, I.C.J. Reports 1971, p.56,
para. 124; emphasis added.
69Hanauer v. Woodruff, 15Wallace439, 82U.S. (1872), p. 448. See also, for example, Horn v. Lockhart etal.,
Wallace 570, 84 U.S. (1873), p. 575.
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55. Much more recently another international court faced with the issue of acts by de facto
entities adopted the same approach. In its judgment of 10May2001 in the Case of Cyprus v.
Turkey concerning the situation in North Cyprus, the European Court of Human Rights stated:
“Life goes on in the territory concerned fo r its inhabitants. That life must be
made tolerable and be protected by the de facto authorities, including their courts; and,
in the very interest of the inhabitants, the acts of these authorities related thereto
cannot be simply ignored by third St ates or by international institutions , especially
courts, including this one.” 70
56. Thus even the manifest illegality of the situation created in Namibia and in North Cyprus
has not prevented international courts from cons idering that certain acts connected with the
continuity of daily life could not be ignored by third States. This should be the case a fortiori with
32 regard to the effective authority exercised by rebel groups in the eastern Congo, which was not
only not illegal from the international law viewpoint, but in addition was recognized by the Lusaka
Agreements. In any event, this is not the place to formulate a general theory of acts by de facto
authorities and their acceptance or rejection by intern ational law. Mr. President, what I seek to do
here is quite simply to stress that the fact th at a State has failed to impose economic sanctions,
abruptly blocking commercial relations that have always existed between its nationals and the
nationals of a neighbouring State, can certainly not be regarded as a “violation of the principle of
sovereignty over natural resources”, nor as a violation of the duty of diligence.
57. Moreover, this was stressed by several States in the Security Council itself during
discussion of the “reports” by the Panel of Expert s on the situation in Congo. For example, the
representative of China stated that:
“the Security Council should make a distinction between illegal exploitation and
current commercial and economic exchanges, in order to avoid any adverse effect on
the economic development of the Democratic Republic of Congo and its population’s
71
means of subsistence” .
58. And this is also in perfect conformity w ith the principle codified by the first Article
common to the two international covenants of 1996, whereby “all peoples may deal freely with
their wealth and their natural resources...” Thus commercial relations between the eastern
Congo, Uganda and several other States are maintained in the interests of the local population , in
70
ECHR, judgment of 10 May 2001, Case of Cyprus v. Turkey, para. 96; emphasis added.
71
S/PV.4642 (Resumption 1), 5 November 2002, p. 21.
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accordance with the criterion set by international jurisprudence. Staple commodities cannot wait in
storage until the central government has managed to re-establish its authority. Coffee, for example,
is planted, grows, is picked by the farmers, dr ied and stored, but it certainly cannot wait for 20 or
30years until governments have been able to settle their dispute. A market and a buyer must be
found before the crop is spoilt. If that market is in a neighbouring country, it is there that it will be
sold, whatever a central government thousands of kilometres away which no longer exercises any
de facto authority over the region where the coffee is grown may say. At a higher level of trade, in
33 minerals, it is clear that where there are mines ther e are miners. These must be able to live and
feed their families. Closing the mines because the central government itself wishes to collect the
taxes on their operations, instead of the local aut horities (which are also Congolese) that exercise
de facto control, is to condemn these people to certain death.
59. It is moreover significant that the DRC au thorities themselves adopted and applied this
principle when they were still mere rebel movements fighting the Mobutu régime. The Alliance of
Democratic Forces for the Liberation of C ongo-Zaire(AFDL), the rebel movement led by
Laurent-DésiréKabila, awarded several mining concession contracts to foreign firms. The
“finance minister” of this movement stated with regard to one of these contracts:
“[The AFDL] exercises effective control ov er the territory in question. This
agreement, concluded transparently, is perfec tly legal, even if the current authorities
are not yet in power in Kinshasa. With regard to those who wish to sign an a72eement
today in Kinshasa, I only ask how they will enforce it here in the Shaba.”
60. It is also interesting in this connection to emphasize the way the “Panel of Experts” itself
ultimately acknowledged in its last report to the Council on 15 October 2003 that a large number of
companies at which an accusing finger had been pointed in its previous reports for “illegal
exploitation” of natural resources in the DRC were in reality contributing by their activities to the
“well-being” of local populations. In this last report the Panel states that, because certain
companies had been working for several years “in areas that until recently had been controlled by
rebels or opposition groups, their activities may have appeared to be illegal or illicit”. But then the
report “corrects” its initial approach by stating:
72
See Rejoinder, para. 455.
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“As a result of their dialogue with the Panel, however, it became apparent that
their business practices could be viewed as acceptable in that they make positive
contributions to their communities in providing goods and services, as well as jobs for
local people!” 73
61. Lastly, it is very important to note that the Applicant also seems to be coming round to
this view. In his pleadings last Wednesday, Pr ofessor Philippe Sands admitted that: “Some trade
74
34 between the two countries may i ndeed have been legitimate” and he even admitted “the fact that
some diamond trading activity may have been legitimate” 75⎯ while adding (I would not wish to
misrepresent his argument!) that General Kazini’s dealings in diamonds were not “legitimate”.
62. To summarize, Mr.President, Uganda c onsiders that one should be wary of any
conclusion that might give the impression that not only Uganda but also numerous other States
whose companies continued to develop comme rcial relations with the inhabitants of
rebel-controlled regions have violated “the duty of vigilance”. When all is said and done, a line has
to be drawn. Uganda’s refusal to yield to pr essure from the DRC, which was asking it to do what
even the United Nations Security Council had refused to do, name ly to impose a trading embargo
against the inhabitants of the eastern Congo, clearly fell on the lawful side of the line. That
decision was thus both lawful and essential, having regard to the fact that during the period in
question trade between these regions and the west of the country (and above all Kinshasa) was
almost completely cut. Here an embargo by Ug anda would have imperilled the survival of the
population of eastern Congo. Based on concern to avoid damaging the interests of the local
population, the decision was associated with a large number of precautionary measures, showing
that Uganda exercised a high degree of surveillan ce aimed at preventing any abuse. I will now
deal briefly with these positive measures taken by Uganda.
The positive measures taken by Uganda
63. From the outset, Uganda did a great deal to ensure that no abu ses prejudicial to the
interests of the population could result from the action of its forces or of Ugandan individuals.
7S/2003.1027, para. 28; emphasis added.
74
CR 2005/5, p. 40, para. 27; emphasis added.
7Ibid., p. 41, para. 27; emphasis added.
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64. As early as Decembe 1r998, the Ugandan President, HE isxcellency
Mr.YoweriMuseveni, gave a broadcast message making it clear that no involvement of the
members of the Ugandan armed forces in comm ercial activities in eastern Congo would be
76
35 tolerated . The purpose of this message was to avoid any risk of abuse by the armed forces,
reserving commercial activities for the traditional private operators. Thus it is clear that, while the
action concerned, i.e. the involvement of a soldier in commercial activities, could not automatically
be considered “unlawful”, Uganda went even further than its international obligations in seeking to
prevent any risk of abuse.
65. Uganda also ensured that its troops refrained from all interference in the local
administration, which was run by the Congolese themselves. And I repeat, when the commander of
the Ugandan forces in eastern Congo attempted to appoint a temporary administrator in Ituri
Province, his action, whereby he was merely seeking to restore public order in that region,
77
produced a firm reprimand by his superiors, who instituted disciplinary measures against him .
66. When the Security Council set up a “Panel of Experts on the illegal exploitation of
natural resources”, Uganda endorsed that decision and has always co-operated fully with that
Panel, giving it all the necessary assistance. Un fortunately the converse was not always true:
barring a few exceptions, the Panel refused to co mmunicate to Uganda (and to the other States
involved), the information on which it based its allegations, regrettably further hampering
Uganda’s efforts to investigate the alleged facts so it could take the necessary action.
67. Be this as it may, when the first allega tions of the “illegal” exploitation of natural
resources surfaced, with the first report of this Panel of Experts, Uganda immediately responded by
setting up an independent Judicial Commission of Inquiry presided over by the British judge
David Porter ⎯ the celebrated “Porter Commission”. Uganda thus became the first country in the
region to set up such a thorough commission of enquiry and to pledge to follow its
recommendations, a move welcomed by the Security Council, which “note[d] with satisfaction . . .
the decision by the Government of Uganda to establish a Judicial Commission of Inquiry”, at the
36
76
Message annexed to the “Letter date d 4May2001 addressed to the Security Council by the representative of
Uganda”, S/2001/458, p. 59.
77
See Rejoinder, para. 496.
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same time “urg[ing]” the other governments concerned to investigate further the various
accusations 78.
A measure unheard of for a country supposedly with something to hide, Uganda gave this
Commission quite extraordinary powers: for exampl e, the “Porter Commission” had the power to
order the production of documents held by anyone, including the President, the Minister of Defence
and the Ugandan People’s Defence Forces, and also to commission audits. In other words, the
Porter Commission operated in optimum conditions of transparency and effectiveness.
68. This Commission heard scores of witnesses in various countries, consulted thousands of
documents, conducted a number of enquiries in situ, always with the full co-operation of the
Ugandan Government. The scale of the work carried out is shown by its final report which runs to
no less than 250pages, 1,850tightly-packed pages containing transcripts of testimonies gathered
by this Commission and thousands of pages of anne xes. The fact that the DRC’s lawyers quoted
heavily from this Report and its annexes in their pleadings before your Court provides further proof
of the Commission’s impartiality and of Uganda’s transparency.
69. Last week, Professor Sands pointed out, on the DRC’s behalf, that “Uganda is entitled to
the fullest respect for having set up the enquiry” 79. Uganda accepts these rather telling
compliments, but deeply regrets the concomitant falsehoods. For the DRC claimed ⎯ and again I
am quoting ProfessorSands ⎯ that “Uganda would rather the Court had not had access to the
80
report of the enquiry” . It stated that Uganda was now seeking to “escape the consequences” of
that Report 81. And it seemingly even sought to give the impression that Uganda had tried to
conceal the Report from the Court since, to quote Professor Sands again:
37 “What is striking is that Uganda felt no need to share with the Court the final
Report of the Porter Commission, which was sent to the Ugandan Government in
January2003, and to the Secretary-General of the United Nations shortly thereafter.
Notwithstanding Article50 of the Court’s Rules ⎯ which requires parties to annex
‘any relevant documents adduced in support’ of a party’s contentions ⎯ it was the
82
DRC and not Uganda which filed the Porter Report with the Court.”
78S/RES 1457 of 24 January 2003, para. 17.
79CR 2005/3, p. 16, para. 12.
80
Ibid.
81Ibid.
82Ibid., p. 11, para. 4.
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I would refer you, Mr. President, honourable Members of the Court, to the document
Submission by the Republic of Uganda of new documents in accordance with Article42 of the
Statute and Article 56 of the Rules of the Court: (1) Report of the Judicial Commission of Inquiry
into all allegations of illegal e xploitation of natural resources and other forms of wealth in the
Democratic Republic of the Congo and (2) the Government White Paper on the said Report . We
filed this with the Court as an official document.
70. Honourable Members of the Court, let me first respond with an observation. It is hard to
understand how the DRC can logically claim that Uganda wished to conceal the Commission’s
Report both from the Court and from the truth, yet at the same time admit that it not only
immediately communicated the Report to the United Nations Secretary-General, but that it also
immediately, on the DRC’s own admission, “made it available on the worldwide web” 83. But let
us not dwell on this inconsistency and move on to an actual false hood. As I was saying a moment
ago, Members of the Court have only to consult the official documents of the Court in this case to
84
see that it is Uganda which filed the Report with the Court and also, indeed, the White Paper .
71. Thus it is clear that Uganda did not try to “hide” this Report from anyone, just as it is that
at no time did Uganda seek to “escape [its] conse quences”. On the contrary, in line with its
original assurances, the Ugandan Government, on re ceipt of the Report, published the White Paper
in question, in which it pledged to follow the recommendations of the Porter Commission and to
take all necessary action, disciplinary, judicial or any other, in order to investigate and punish those
responsible. A further token of the seriousness w ith which Uganda looked into this matter is the
38 fact that in some cases it went further than the Porter Commission’s recommendations. For
example, it is noteworthy that, following the publi cation of this Report, it relieved General Kazini
of his command, even though the Porter Commis sion did not directly recommend this measure,
merely calling for further investigation of his case.
72. This commitment remains total, and my di stinguished colleague Philippe Sands dutifully
referred last week to PresidentMuseveni’s recent BBC interview, in which he stated that Uganda
83
CR 2005/3, p. 21, para. 10.
8See “Report of the Judicial Commission of Inquiry into allegations of illegal explo itation of natural resources
and other forms of wealth in the DRC”, in ICJ, Submission by the Republic of Uganda of new documents in accordance
with Article 43 of the Statute and Article 56 of the Rules of the Court, 20 October 2003.
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had scrupulously looked into all the Porter Commi ssion’s recommendations, was indeed still doing
so, and was determined to prosecute all indi viduals found guilty of any breach of the law
whatsoever.
73. Here, then, is a presentation of certain steps taken by Uganda as part of its duty of
“vigilance”. In a separate opinion appended by Judge Alvarez to the Judgment of your Court in the
Corfu Channel case, he was at pains to explain that: “[ t]his obligation of vigilance varies with the
geographical conditions of the countries and with other circumstances . . . Moreover, this vigilance
depends on the means available to a given State.” 85
74. Uganda, a developing country, undergoing a serious security crisis owing to the attacks it
has suffered, has been dragged into a conflict it did not want. Seeking only to defend itself,
Uganda wished to avoid any abuses by its armed forces. Within the limits of the means available
to it, Uganda sought to prevent, to investigat e, to react. It sought to introduce absolute
transparency in this area by setting up an independent Judicial Commission of Inquiry, endowed ⎯
I would remind you ⎯ with extraordinary powers, a commission which few countries historically
have had the courage to set up in similar conditions. Neither the existence of the war, nor the risks
to its security, nor “official secrecy” have been i nvoked in any way to censor or obstruct the work
of this Commission. Uganda has done its utmost to seek the truth. It is for all these reasons that it
asks your Court to adjudge and declare that it has not failed in its duty of prudence and obligation
as to means laid down by international law.
39 Mr. President, Members of the Court, this concludes my oral presentation of this morning on
the illegal exploitation of natural resources. I thank you for your kind attention.
Le PRESIDENT : Merci, Monsieur le professeur Suy.
Ceci clôt l’audience de ce matin. Les audiences reprendront cet après-midi à 15 heures.
La séance est levée à 12 h 30.
___________
85
I.C.J. Reports 1949, p. 44; emphasis added.
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