CO
CR 2005/16 (traduction)
CR 2005/16 (translation)
Vendredi 29 avril 2005 à 10 heures
Friday 29 April 2005 at 10 a.m. - 2 -
8 Le PRESIDENT: Veuillez vous asseoir. La séance est ouverte. La Cour se réunit
aujourd’hui pour permettre à la République démocratique du Congo de conclure le second tour de
sa plaidoirie concernant les demandes reconventionnelles de l’Ouganda. Je donne donc la parole à
M. Kalala.
Mr. KALALA:
The first Ugandan counter-claim, in so far as it relates to the period of Marshal Mobutu’s
presidency, is inadmissible and, in the alternative, totally without foundation
1. Mr.President, Members of the Court, I am taking the floor for the last time before this
august Court to present the DRC’s reply to Uganda’s two counter-claims. In this connection, I
should like at the outset to remind the opposing Pa rty that its third counter-claim, concerning
alleged violations of the Lusaka Agreement by th e Congo, was dismissed by the Court in its Order
1
of 29November2001, inasmuch as it was not directly connected with the instant case .
Consequently, the DRC will not enter into the debate opened the day before yesterday by
Mr.Reichler, who attempted to justify the fighting conducted on Congolese territory by the
Ugandan army after the conclusion of the Lusak a Agreement of 10July1999 on the ground of
2
alleged violations of that Agreement by the Congo .
2. Before beginning my examination of Uganda ’s two counter-claims, a llow me first of all,
Mr.President, to say a word about a more genera l question. In its most recent oral arguments,
Uganda persisted in seeking to deny the Congo th e right to present objections to the admissibility
3
of the counter-claims at this stage . The DRC had clearly indicated in its written observations on
Uganda’s counter-claims, in June2001, that is to say prior to the Order made by the Court in
4
November 2001, that it reserved the right to submit preliminary objections in its Reply , which in
fact is what it did. It is true that Uganda immediately attempted to deny it that right. But the Court
9
settled that question in the clearest possible manner, by stating in its Order of 29November2001
1Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Counter-Claim,
Order of 29 November 2001, I.C.J. Reports 2001, p. 680, paras. 42-43.
2
CR 2005/14, p. 47, para. 34 (Mr. Reichler).
3
CR 2005/15, p. 27, paras. 2-10 (Mr. Suy).
4Written Observations of the Democratic Republic of the Congo on the questions presented by way of
counter-claims by the Republic of Uganda in its Counter-Memorial of 21 April 2001, pp. 67-68, paras. 74-76. - 3 -
that the first and second counter-claims submitted by Uganda were admissible “as such” , that is to
say as counter-claims, while pointing out that “a decision given on the admissibility of a
counter-claim taking account of the requirements of Article80 of the Rules of Court in no way
prejudges any question with which the Court would have to deal during the remainder of the
proceedings” 6.
3. The Court did not, therefore, prejudge the admissibility of the Ugandan claims from any
standpoint other than that of their admissibility as counter-claims, within the meaning of Article 80
of the Rules of Court. For that reason, the Cour t is fully entitled today to rule on the preliminary
objections raised by the Congo, in accordance with its case law in the Oil Platforms case,
concerning which there is absolutely no reason to believe that it should be seen as an exception to
an alleged comprehensive rule to the effect that such objections would be inadmissible at this stage.
4. Mr. President, Members of the Court, the re buttal of the first Uga ndan counter-claim will
be presented in three stages: by myself, by Pr ofessor Corten, and finally by Professor Klein, in
relation to three distinct periods: the period of Marshal Mobutu’s presidency, the period comprised
between the accession to power of President Lauren t-Désiré Kabila and the commencement of the
conflict in the DRC on 2August1998, and finally the period subsequent to the outbreak of that
conflict.
5. Professor Salmon will then briefly address the second Ugandan counter-claim concerning
the Congo’s alleged responsibility for acts in relation to the Ugandan Embassy in Kinshasa and the
treatment of certain Ugandan nationals. Las tly, Ambassador Masangu-a-Mwanza, in his capacity
as Agent, will present the DRC’s final submissions.
10 The first Ugandan counter-claim concerning th e period of Marshal Mobutu’s presidency
must be rejected
6. That part of the first Ugandan count er-claim which relates to the period of
MarshalMobutu’s presidency must be rejected, pr imarily because Uganda must be held to have
renounced its right to engage the responsibility of the DRC for incidents during that period and, in
5
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Counter-Claim,
Order of 29 November 2001, I.C.J. Reports 2001, p. 681, para. 45.
6
Ibid., p. 681 para. 46. - 4 -
the alternative, because Uganda provides no evidence to justify the inference that Zaire violated its
international legal obligations to Uganda.
I. Uganda renounced its right to engage th e responsibility of the DRC for incidents that
occurred during the period of Marshal Mobutu’s presidency
7. Mr. President, Members of the Court, in his presentation last Wednesday, Professor Suy
accused the DRC of “chopping up” the first counte r-claim into “slices”, distinguishing between
three periods, in order to “divert the Court’s attention from the period prior to May 1997 . 7
8. One does not have to be a genius to unde rstand the various reasons prompting Uganda to
reject this version of the facts. First of all, Ug anda does not wish to be reminded of the active part
it played itself in “slicing up” the recent history of the Congo. I should explain at this point that
every “slice” identified by the DRC was in fact separated from the preceding one by a Ugandan
incursion into Congolese territory. There was first the political and military support given to the
AFDL by Uganda, which resulted in the coming to power of Laurent-Désiré Kabila in 1997, in
place of Marshal Mobutu ⎯ that was the cusp between the first and second periods; and secondly,
the invasion of the Congo by Uganda in August 1998 ⎯ the cusp between the second and third
periods. Next, the lumping together of the three periods in a “continuous wrongful act”, a sort of
undifferentiated amalgam, is designed to spare Ug anda the need to present convincing evidence
concerning each of these periods, which would demonstrate that, from the standpoint of the
significant players and the specific context, the Congolese authorities breached their international
obligations to Uganda in respect of non-use of force. Lastly, the amalgamation of all the periods is
designed to conceal the fact that, as regards acts committed in the first of them, the period of the
11 Mobutu presidency, Uganda renounced its right to engage the international responsibility of the
DRC, as I shall now explain.
9. In his presentation on Wednesday 27 April, Professor Suy provided very little in the way
of a response to the detailed arguments presented last week by my colleague Pierre Klein. Counsel
8
for Uganda first stressed the principle of State continuity between Zaire and the Congo , a principle
which has never been questioned by the DRC. He th en basically confined himself to retorting that
7
CR 2005/15, p. 30, paras. 12-13 (Mr. Suy).
8
Ibid., p. 30, para. 14. - 5 -
there had been a continuous reaction on the part of Uganda vis-à-vis Zaire, without however
referring to a single specific act of protest. During the first round of pleadings, Professor Suy had,
however, acknowledged that the filing of the Uganda n complaint had been motivated by the filing
9
of the Congo’s principal claim . In other words, until recently the Ugandan authorities had never
had, or expressed, any intention of presenting a cl aim in respect of events dating back to the
Mobutu period. In the circumstances, there can be little doubt that there was a waiver within the
meaning of Article 45 of the International Law Commission’s draft Articles on State responsibility.
This part of the Ugandan claim is, therefore, inad missible. However, in the alternative, I shall
address the substantive aspects of this first period in the second part of my presentation.
II. Uganda provides no evidence to justify the inference that, under the presidency of
Marshal Mobutu, Zaire violated its international legal obligations to Uganda
10. Mr.President, Members of the Court, the respondent State accuses the DRC, first, of
having breached its duty of vigilance under the reign of Marshal Mobutu by allowing Ugandan
rebel movements to use its territory to launch attacks in Uganda, and, secondly, of having provided
10
political and military support to those movements during the period concerned .
11. Concerning the first accusation, Professor Suy stated in the course of his presentation on
Wednesday 27 April that the Congo admitted having taken no steps to comply with its duty of
12 vigilance and that its international respons ibility is therefore automatically engaged 11.
Mr.President, this assertion by Professor Eric Su y is wrong. The DRC wishes to reaffirm here
what it has always said on this subject. It is clear that rebel movements, both Ugandan and
Congolese, have for many years consistently taken refuge in Ruwenzori Mountains, which straddle
the border between Uganda and the Congo. Si nce PresidentMuseveni came to power in
January 1986, several armed groups have been fo rmed in opposition to hi s régime and operate on
the northern and western frontiers of Uganda. Th is situation barely changed, even when the
Ugandan authorities invaded and then occupied the C ongo for a period of nearly five years. It is
thus not the Congo which created those movements.
9CR 2005/10, p. 26, para. 9 (Mr. Suy).
10
CR 2005/15, pp. 32-35, paras. 18-27 (Mr. Suy).
11Ibid., p. 33, para. 23. - 6 -
12. Mr.President, it may be helpful if I pr ovide the Court with some information on the
geographical and topographical configuration of the border area between the DRC and Uganda in
the Ruwenzori area. First of all, one should not lose sight of the fact that the DRC is the only
African country which borders on nine countries and has nearly 9,000km of frontier. The
Ugandan/Congolese border is over 1,000km long. The Ruwenzori Mountains, a photograph of
which can be seen by the Court on the screen behind me, are located in the southern section of the
frontier between the Congo and Uganda. It is thus in this mountainous area, which is inhospitable
and difficult of access, that Ugandan and Congol ese rebel movements and miscellaneous bandits
and robbers frequently hide out in order to pursue their activitie s and escape from the security
forces of the two States.
13. Mr.President, Members of the Court, th e impossibility of effectively policing such a
frontier, especially in the Ruwenz ori area, has been recognized by Ug anda itself. In response to a
United Nations criticizm concerning violations of the embargo imposed by the Security Council on
arms destined for the DRC, Uga nda told the United Nations that there was a “lack of adequate
capacity by the customs to monitor the 1,200km border dominated by rough terrain and big
lakes”12. If, though, Mr.President, Members of the Court, Uganda admits to the United Nations
that it cannot prevent illicit trafficking on a border nearly 1,200km long, how can it accuse the
DRC or Zaire of having breached its duty of vigi lance on the same border? Mr.President, in the
13 Congo, we are taught from a very young age that a sn ake is to be killed with the stick you have in
your hand. The DRC can hardly be expected to position a military surveillance satellite or
radar-fitted aircraft in the Ruwenzori in order to monitor the movements of armed groups, day and
night, and thus prevent them from operating in Uganda or the Congo. A State exercises vigilance
over its territory with the resources at its di sposal, taking into account all the objective
circumstances.
14. To return to the period 1994-1997, th e Congolese Government introduced standard
border surveillance measures, but it never received an explicit request from Uganda to take any
particular measure against any partic ular rebel group. It is moreov er impertinent, to say the least,
12
Doc. S/2005/30, 25 January 2005, p. 30, para. 103. - 7 -
on the part of the respondent State to accuse Zaire of a lack of vigilance, when it is Uganda itself
which gave military support to Congolese rebel movements in that same area. Support which, as
we know, lasted from November 1996 to May 1997, when the official Government of Zaire was
overthrown by force. The Ugandan accusation c oncerning a lack of vigilance in the Ruwenzori
Mountains for the period preceding the overthr ow of MarshalMobutu cannot therefore be
reasonably upheld.
13
15. As regards the second charge , Uganda accuses Zaire of ha ving not only tolerated, but
also supported the Ugandan rebels during the Mobu tu era. By way of evidence, Professor Suy
14
cited several annexes to the Ugandan Counter-Memorial . In both its written and oral pleadings,
the DRC has already made a detailed critical analysis of each of the Ugandan allegations and has
15
shown that none of the annexes cited by the res pondent State could be considered as legal proof .
Uganda has not answered these criticisms either in its written pleadings or during the oral phase. I
shall not, therefore, go over them here in detail.
16. Mr.President, as a measure of the lack of credibility of these documents, allow me to
refer to Annex 6 to the Ugandan Counter-Memorial, as cited by Professor Suy. After accusing the
14 Zairean authorities of supporting Ugandan rebels, a Ugandan intelligence report mentions that “the
French and the Sudanese are also involved in assisting these rebel groups” 16. Thus, Mr. President,
here we have France, too, allegedly involve d in the Sudanese/Congolese plot. Mr.President,
Members of the Court, such assertions are so fanciful that they deserve no further comment.
17. Again, according to Annex64 cited by Professor Suy, an an nex entitled “ADF-Kabila
Links ⎯ Revelations by Commander Junju Juma Former Commanding Officer ADF Presidential
Protection Unit (code-named Mawingo) 17 May 2 000”, we learn, under the heading “Logistics
received by ADF from Kabila Government”, that the Kabila Government delivered arms in
November 1996 and January 1997 to the Ugandan re bel movement ADF. However, Mr. President,
it is common knowledge that, in November 1996 and in January 1997, Laurent-Désiré Kabila was
1CR 2005/25, pp. 34-35, para. 26 (Mr. Suy).
14
Ibid.
15
RDRC, pp. 359-362, paras. 6.26-6.33 and AWODRC, paras. 1.25-1.40.
1CMU, Ann. 6, p. 2, point 5. - 8 -
president of neither Zaire nor the DRC. He assumed power only on 17 May 1997. And yet it is on
the basis of such “revelation s” that Uganda asks you today to find the Congo internationally
responsible for acts dating back to that period.
18. Concerning the nine other annexes (1, 2, 3, 4, 5, 6, 7, 10 and 11) attached to the Ugandan
Counter-Memorial, allegedly contemporaneous with the reign of Marshal Mobutu and covering the
period 17 September 1990 to 15 October 1996, the DRC would point out to the Court that they are
all internal documents of the Ugandan military intelligence services (Chieftaincy of Military
Intelligence), and cannot constitute legal proof.
19. In the matter of evidence, Mr.President, the DRC takes issue not with the fact that
Uganda produces documents prepared by its own serv ices, but with the fact that it fails to provide
additional evidence from neutral and credible sources to corroborate the reports of its own officials.
It is incongruous, to say the least, that wh en the Congo produces military intelligence reports
concerning the Kitona airborne operation, these are contemptuously dismissed by Uganda, with
disparaging references to the Congolese intelligen ce services, even though the content of these
documents is corroborated by various neutral and credible sources. Yet, the respondent State seeks
15 at the same time to engage the international r esponsibility of the DRC solely on the basis of
documents drafted by its own military intelligence services.
20. In conclusion, Mr.President, Members of the Court, the DRC respectfully requests the
Court to adjudge that Uganda has provided no relia ble and credible evidence of, on the one hand, a
breach by the DRC of its duty of vigilance and, on the other hand, its support for Ugandan rebel
movements during the period 1994-1997. Mr. President, Members of the Court, I thank the Court
for its kind attention and ask you to give the floor to Professor Olivier Corten, who will present the
DRC’s response to the second part of Uganda’s first counter-claim. Thank you.
The PRESIDENT: Thank you, Mr. Kalala. I now give the floor to Professor Corten. - 9 -
Mr. CORTEN: Thank you, Mr. President.
T HE DRC DID NOT VIOLATE ITS INTERNATIONAL LEGAL OBLIGATIONS TO U GANDA
BETWEEN M AY 1997 AND 2 AUGUST 1998
1. Mr. President, Members of the Court, Uganda accuses the Congo of having attacked it in
the weeks preceding 2August1998. This accusatio n is supposedly based on ties forged by the
Congo with the Ugandan rebels and also with the Sudan. Yet Uganda has still not yet furnished
any proof that such ties existed.
I. The persistent lack of proof of links between the DRC authorities and Ugandan rebel forces
2. Mr.President, in the second round of oral argument on the counter-claims, counsel for
Uganda asserted that the DRC had violated intern ational law “by allowing various rebel bands to
use its territory to prepare and launch terrorisattacks and acts of subversion against Uganda, or
even supporting and aiding these rebels”17.
3. As the Court will have noted, the Ugandan claim would seem, at this final stage of the
proceedings, to have curiously shrunk. Having first charged the DRC with directing and launching
18
attacks against it , then quite simply charged the Congo with providing general support to rebel
groups 19, the only charge Uganda now clearly maintains is that of mere toleration. The charge of
16
support or aid has become just a hypothesis, wh ich Uganda implicitly accepts it cannot prove by
using the expression “or even”, which now precedes it. Duly noted. But what of the substance?
4. Counsel for Uganda asserts that rebel groups were “tranquilly” 20launching attacks from
the Congo. Mr. President, the same counsel for Uga nda nevertheless referred, in the first round, to
a “period of understanding between the tw o countries (from May1997 to July1998)” 21. While
another counsel for Uganda asserted, referring to the beginning of August1998, that “until then
22
President Kabila had been co-operating in that effort” to secure the border . Another counsel
1CR 2005/15, pp. 26-27, para. 1 (Mr. Suy).
1CMU, paras. 5, 40 and 389.
19
RU, p. 308, para. 666 and CR 2005/10 (Mr. Suy).
20
CR 2005/15, p. 30, para. 13 (Mr. Suy).
2CR 2005/10, p. 25, para. 6 (Mr. Suy).
2CR 2005/6, p. 42, para. 67 (Mr. Reichler). - 10 -
highlighted all the steps taken by President Kab ila to facilitate the UPDF actions in the Congo,
even claiming that consent had formally been given to the presence of these troops in Congolese
territory . Nor is it disputed that the FAC themsel ves conducted a number of combat operations
24
against the Ugandan rebels during this period .
5. Mr. President, pursuing rebels, authorizing a foreign army to conduct military operations
against them on its own territory, concluding an agr eement aimed at eradicating them, is this really
25
“offering a safe refuge” to these rebels or allowing them to act “undisturbed”? Uganda cannot,
when pleading on the head of consent, dwell at such length on the active support given to its army
by the Congolese authorities then, when pleadi ng on the counter-claims, allege that these
authorities were negligent, offering a “safe refuge” to the Ugandan rebels.
6. The reply given to us is that President Kabila was playing a “double game” 2, that his
17
conduct was “ambiguous” 27, that, even in this equatorial region, part of the “iceberg” 28remained
submerged.
7. But where is the evidence? Mr.President, fo r the first time the day before yesterday, a
number of documents were cited by Uganda in its oral argument, to “prove” the active support of
the Congolese Government to the Ugandan rebels during the critical period. What were they?
Authentic documents, contemporaneous with th e facts, not prepared for the present case,
29
corroborated by other sources, comes the reply from our opponents .
8. In reality, these six documents, A nnexes12, 18, 20, 64, 71 and 76 to the
Counter-Memorial, are not corroborated by any other source whatsoever. They are six texts
produced by the Ugandan authorities themselves. No t all of them are precisely dated, but three
30
were written during the year 2000 or in early 2001, i.e. at the same time as the Counter-Memorial .
23CR 2005/8, pp. 10-12, paras. 12-19 (Mr. Brownlie).
24RDRC, pp. 158-166, paras. 3.26-3.43 and CR 2005/3, p. 33, para. 12 (Mr. Corten).
25
CR 2005/15, p. 30, para. 13 (Mr. Suy).
26
CR 2005/14, p. 18, para. 31 (Mr. Reichler).
27CR 2005/15, p. 30, para. 13 (Mr. Suy).
28CR 2005/15, p. 34, para. 24 (Mr. Suy).
29CR 2005/14, pp. 18-19, para. 33 (Mr. Reichler).
30
CMU, Anns. 64, 71 and 76. - 11 -
31
Moreover, the DRC has already reviewed these documents in detail in its written pleadings . So I
shall only add a few comments here.
⎯ First, the Court will note that two of these texts merely mention fears that a high-ranking
Congolese officer may not prove effective enough in the fight against the Ugandan rebels,
though no specific charge is levelled against him 32.
⎯ A third Annex quoted mentions contacts “in 1998”, then support in arms “later”, without
33
providing any precise date for this support ; so it can certainly not be used to prove Congolese
aid to the Ugandan rebels during the critical period, prior to 2 August 1998.
18 ⎯ Two other texts, it is true, contain “revelati ons” by ADF prisoners, according to which links
had allegedly been establishe d with the Congolese authorities before this date. Links, but
nothing more, because just when these links were about to result in material support, war broke
out in the Congo, the UPDF invading the eastern part of its territory. “We didn’t get those
weapons”, one of them tells us 34. “UPDF captured Kisangani befo re ADF could pick [up] the
35
arms” , says another. So, even on the basis of these documents, no material support.
⎯ As to the sixth document, it is supposedly based on the testimony of an individual having taken
part in the attack on Kichwamba, who in this connection does not mention any aid, or support,
or tolerance by the Congolese authorities, but refers to a plan ⎯ yes, a plan, with nothing to
suggest it was implemented ⎯ to contact a Congolese soldier for the purpose of obtaining
support 36.
9. Lastly, two days ago, Uganda produced a document “proving” that Taban Amin was
appointed general of the FAC, on a date which re mains unspecified. Uganda produced a curiously
truncated version of this document, but the Congo has managed to obtain the full text. The Court
will no doubt, in its own time, read the press artic le concerned, which is tab45 in the judges’
31
See in particular RDRC, pp. 189-191, paras. 3.89-3.93, AWODRC, p. 22, para. 1.32.
32
CMU, Anns.12 and 18, and the quotations taken from th e oral argument of Mr.Reichler on 27April2005,
CR 2005/14, paras. 34 and 35.
33
CMU, Ann.64, p.1, the quotations being taken fro m the oral argument of Mr.Reichler, 27April2005,
CR 2005/14, p. 19, para. 37.
3CMU, Ann. 71.
3CMU, Ann. 76.
3CMU, Ann. 20. - 12 -
folders. It will gain a ⎯ to say the least ⎯ picturesque impression of an individual who, although
the son of Idi Amin Dada, now states he is the “son of Museveni”, at the same time asserting that
he has become a UPDF general. An appointment as fanciful as his alleged one in the Congolese
army, if one is to believe the denials of the UPDF spokesman himself.
19 10. Mr.President, Members of the Court, are these really “proofs” on which the Court
should rely in order to establish a wrongful act attributable to the Congo ⎯ an act, moreover, as
serious as an actual armed attack?
11. Last Wednesday, one of Uganda’s counsel took umbrage at remarks by the Congo to the
37
effect that documents had been fabricat ed by Uganda for the purposes of the case . “Fabricated”,
which in French means simply “put together”. Nothing more, but also nothing less. And it is an
objective fact that most of the documents appe nded to the Uganda written pleadings were put
together by the Ugandan authorities themselves. Moreover, there are strong indications to suggest
that some of these “witness statements” taken from prisoners or informers in unknown
circumstances, totally lack credibility, regardless of the period concerned.
⎯ Need one recall the case of the prisoner who “testifies” to events which took place in the
38
Congo when, at the time of the events, he was in a Ugandan prison?
⎯ Need one recall, as MaîtreKalala has already re minded you, the fanciful charges that France
39
itself assisted the Ugandan rebels?
⎯ Is there any need to revisit the incredible episode of the Ugandan Ambassador posted to
Kinshasa who, at the stage of the Rejoinder, for the first time “remembered” irrebuttable
evidence which he had left behind in his Em bassy in 1998, yet never transmitted to his
40
authorities?
12. Mr. President, Members of the Court, obviously it was not experienced counsel such as
our learned opponents who crafted documents such as these. It was clearly other parties in Uganda,
whose motives it is not for us to try and fathom. What, on the other hand, is certain, is that it is no
3CR 2005/14, pp. 31-32 (Mr. Brownlie).
38
CMU, Ann. 63; see RDRC, pp. 373-374, paras. 6.60-6.61.
39
CMU, Ann. 6, para. 5.
4RU, p. 322, para. 695 and Ann. 87, paras. 9 and 14; reviewed in AWODRC, pp. 23-25, paras. 1.34 -1.36. - 13 -
20 exaggeration to speak, as the Congo has done ⎯ to use the language of counsel ⎯ of certain
“fabricated or ludicrous evidence” . 41
13. In light of all these elements, it is clear that Uganda has not proved that there was any aid
or support whatever to Ugandan rebels by the Congolese authorities. And the same conclusion
may be drawn as regards the mysterious links s upposedly established with the Sudan as early as
2 August 1998. This brings me to the second part of my argument.
II. The persistent lack of evidence of links between the DRC authorities and
the Sudanese armed forces
14. Mr.President, during the first round counsel for Uganda asserted that the “diabolical”
tripartite alliance between the Congo, Uganda n rebels and the Sudan had been established
“after . . . the period . . . from May 1997 to July 1998” 42. The Congo pointed out that this assertion
43
presupposed that no such alliance had been concluded during this period . Uganda’s only reaction
was to contend last Wednesday that, after the invasion of the Congo, “to save itself, one of the
foreign Powers to which the DRC turned for m ilitary support in its hour of need was the Sudan” 44.
The “specific facts” subsequently referred to as “detailed elements of Uganda’s case”, date, at their
earliest, from 14August1998 45. In light of these statements, Uganda would seem very clearly to
have renounced its claim that the “diabolical alliance” was concluded before the outbreak of war.
15. It is true that last Wednesday one of Ug anda’s counsel expended a great deal of time and
energy in seeking to give some form of general credence to the conspiracy scenario, without our
even knowing what the exact period was that it might cover ⎯ even stooping to claiming that it
was “obvious” that the Congo’s counsel “have not read their own pleadings” 46. What could lie
21 behind so sweeping a claim by someone usually so moderate and courteous in tone?
16. Mr.President, Members of the Court, after the Congo had emphasized that the other
Party had adduced no evidence whatever, Uganda w as faced with a real dilemma: to abandon its
41CR 2005/12, para. 20 (Mr. Salmon).
42CR 2005/10, p. 25, para. 6 (Mr. Suy); emphasis added.
43CR 2005/11, p. 27, para. 25 (Mr. Corten).
44
CR 2005/14, p. 29, para. 57 (Mr. Reichler).
45Mr. Reichler, ibid., pp. 12-13, para. 18.
46CR 2005/14, p. 8, para. 3 (Mr. Reichler). - 14 -
claim ⎯ which it seems to have done, at least in r espect of the critical period, as we have just
seen ⎯ or to adduce fresh evidence ⎯ which it could not do. It is doubtless in order to try to
escape from this dilemma that it has been driven to the last resort: sensational revelation. To
repeat the words of my learned opponent about th e plot with the Sudan, “these facts are fully
proven by the DRC’s own written pleadings and the documentary evidence attached thereto” 4.
But where is the evidence in question?
17. In the Congo’s written pleadings? The only passage referred to is paragraph 3.24 of the
Reply, “quoting a document with approval”, according to Uganda 48. In fact the Reply does no
more than cite a report alleging that, after the start of the conflict, Ka bila was “looking for new
alliances” 49, the Sudan, among others, being then cited in this regard. The origins of this rumour,
which refers only to looking for an alliance at this stage, are not specified. Far from approving it,
as Uganda claims, the Congo expressly states in its Reply that this is no more than a “hypothesis”,
and one that does not cover the critical period prior to 2 August 1998 50.
18. So there is nothing in the Congolese written pleadings. But what of the annexes to these
51
pleadings? Mr.President, Members of the Court, here is the “extensive and impressive proof”
that Uganda has just discovered and finally reveals to us, in its very last round of pleadings. This
volume annexed to the Congo Reply includes exactly 145documents, all of them communiqués
from IRIN, Integrated Regional Information Networks attached to the United Nations. Uganda has
22 carefully selected three of these 145documents, be cause most of the others contradict its own
version of the facts.
19. The first, dated 9 September 1998, states th at there were reports of the Sudan flying
52
military supplies to DRC forces . However, it immediately adds, and this passage, oddly enough,
53
was not cited by Uganda’s counsel, that the reports could not be confirmed . A press report, citing
4Ibid., p. 11, para. 15.
4Ibid., pp. 16-17, para. 28.
49
RDRC, p. 156.
50
Idem.
5CR 2005/14, p. 16, para. 27 (Mr. Reichler).
5“Diplomatic and military sources told IRIN today (We dnesday) they had received reports the Sudan had been
flying military supplies . . . to the forces of DRC”.
5“It was not possible to confirm these reports.” - 15 -
unspecified “diplomatic and military sources”, s ources based on “reports” by unidentified authors
and which could not be confirmed. So much for the first “proof” relied on by Uganda.
20. Let us now turn to the second. One of Uganda’s counsel has cited an IRIN communiqué
dated 14 September 1998 which, he asserts, cont ains the following statement: “Last week,
2,000Sudanese soldiers were sent to the DRC to support [President] Kabila’s army” 54. But what
exactly does this document actually say? It begi ns by referring to claims by a senior Ugandan
official, immediately refuted by a representative of the Sudan 55. Then it continues: “Last week, the
Brussels-based Le Soir reported that 2,000 Sudanese soldiers were sent in DRC to support Kabila’s
army.” 56
21. Doubtless because it slipped his mind, our l earned opponent failed to cite the phrase that
I have just emphasized. IRIN does not claim that 2,000 Sudanese soldiers had been sent to the
Congo. The Belgian newspaper Le Soir, to which this communiqué refers, states in its issue dated
23 7September1998 that “ according to a Kinshasa newspaper , two Sudanese battalions are said to
be in the north of the country, near Bunia, to help in the capture of Kisangani and to drive out the
Ugandans who were there” 57. In short, IRIN prudently refers to a newspaper which itself refers to
another newspaper, we do not know which, that itself mentions a hypothesis (“are said to be”).
This is clearly fanciful; no Sudanese soldier ever threatened the UPDF when it arrived and
subsequently occupied Kisangani, as from 1 September 1998.
22. Our opponent then cites another IRIN communiqué, dated 16 September 1998, which
allegedly establishes, to use his own words, that “the Sudan had sent 2,000 of its soldiers to
58
Kindu... to help DRC President Kabila and his allies” . Mr.President, obviously I must have
failed to read the Congo’s writte n pleadings properly, because when I consult the document in
question once again I fail to find the same thing that my learned opponent has found. In fact the
54Oral argument by Mr. Reichler, 27 April 2005, CR 2005/14, p. 9, para. 6.
55 “The ‘East African’ weekly ne wspaper reported today on claims that some 2,800 Rwandan and
Ugandan Hutu rebels were being trained at three camps in southern Sudan as pa rt of the government of
the Sudan’s support to Kabila. The newspaper quoted the director of Uganda’s External Security
Organization as saying that the training of the Hutu youth was part of a ‘Sudan-Congo conspiracy”...
The East African reported an official of the Sudanese Embassy in Nairobi as denying the allegations.”
56Emphasis added.
57Colette Braeckman, “La haine ethnique secoue le Rwanda et divise le Congo” , Le Soir, 7 September 1998;
emphasis added.
58CR 2005/14, p. 9, para. 7 (Reichler). - 16 -
59
IRIN report states that rebels claimed yesterday that the Sudan had sent troops to Kindu . The
words “rebels claimed yesterday” were not quote d by Uganda’s counsel; similarly, doubtless by
chance, he did not think it worthwhile mentioning th at the FAC Chief of Staff categorically denied
60
the allegation, as did the Sudanese Foreign Minister .
23. We now come to the book by the leader of the MLC, which both Professor Salmon and I
“obviously have not read” 61, to adopt the obviously irritable tone of our eminent opponent.
Mr. President, Members of the Court, I have read th is book with great interest, not to find out what
the author’s personal assessment of events was ⎯ which was cited the day before yesterday and
which proves absolutely nothing 62⎯ but in order to read his direct testimony on certain facts
connected with the present case. Here are my conclusions about the battle for Gbadolite in
July1999. I quote my pleadings of 22 April last: “the leader of the MLC, which fought side by
side with the UPDF, describes the principal stages in the battle without ever mentioning a single
63 64
24 clash with Sudanese forces” . Professor Salmon made a similar assertion , which is not
contradicted at all, either by the passages cited last Wednesday or by any other passage in this
book, which never mentions a clash with Sudanese sold iers. Despite their best efforts, there is one
fact that Uganda’s counsel have clearly been una ble to obscure: although the fighting between the
Sudanese army and the UPDF in Congolese territory pu rportedly lasted several weeks, not a single
shred of evidence has been produced to substantiate this scenario.
24. But now Uganda plays its very last card, an admission by the Congo. We are suddenly
told that there has been a “failu re by the DRC to deny evidence” 65of the Sudan’s involvement in
the war against Uganda, and even that the DRC does not deny the ex istence of an alliance with the
66
Sudan . They even beg us not to go back in extremis on that admission, appealing to our sense of
5“Rebel claimed yesterday (Tuesday) that the Sudan had sent 2,000 of its so ldiers to Kindu...” (RDRC,
Ann. 108.)
6“The chief of staff of the Forces armées congolaises (FAC) has ‘categorically denied’ the allegation”. (Ibid.)
61
CR 2005/14, p. 10, para. 12 (Mr. Reichler).
62
See the excerpts cited in oral argument by Mr. Reichler, 27 April 2005, CR 2005/14, p. 17, paras. 29-30.
6CR 2005/11, p. 32, para. 38 (Mr. Corten); emphasis added.
6CR 2005/12, para. 7 (Mr. Salmon).
6“DRC’s failure to deny . . . evidence”, CR 2005/14, p. 11 (Mr. Reichler), sub-heading in bold type.
66
“The DRC does not deny that it made a military alliance with the Sudan”, ibid., p. 12, para. 17. - 17 -
67
honour . Mr. President, the Congo has spent years contesting the “evidence” adduced by Uganda
of a plot linking the DRC, the S udan and Ugandan rebels. In its most recent written pleadings the
DRC has expressly stated that it has “always deni ed, and continues to deny, approving any support
68
whatever for subversive activities against the Ugandan authorities” . In the first round of oral
argument the Congo stated that, even though it would have had a perfect right to do so, it “did not
69
call on the Sudan to support or defend it” . The truth is that the Congo has never expressed an
25 opinion as to which country, the Sudan or Uganda, had attacked the other first 7. To deduce from
this any kind of admission in the context of the pr esent case is so absurd that it calls for no further
comment.
25. Mr.President, Members of the Court, there is no evidence, no evidence whatever, of a
plot involving the DRC, Ugandan rebels and the Sudan, either in Uganda’s or the Congo’s written
pleadings or elsewhere. The only documents re lied upon by Uganda contain accusations, claims
and rumours, but also denials and doubts. They do not establish a single fact. Even assuming that
this hearsay evidence were accepted, the Court will note that it never deals with the period prior to
2 August 1998, but always refers to the period foll owing that date. No evidence, however flimsy,
gives credence to the argument of double-dealing by President Kabila, who, while co-operating
with Uganda, purportedly hatched a plot in secret with the Sudan before the war started. And it
should be stressed that, from that date, the DRC was in a situation of self defence. Mr. President, I
now ask you to call Professor Klein to the Bar of th e Court; he will deal with the third period to
which Uganda’s counter-claims relate, the period during which the Congo was in a position of
self-defence.
The PRESIDENT: Thank you, Professor Corten. I now give the floor to Professor Klein.
67
Ibid., p. 14, para. 21.
68
AWODRC, p. 37, para. 1.51; see also para. 1.52 and p. 35, para. 1.48.
69CR 2005/3, p. 40, para. 29 (Mr. Corten).
70CR 2005/12, para. 4 (Mr. Tshibangu Kalala). - 18 -
KMLE.IN:
THE DEMOCRATIC R EPUBLIC OF THE CONGO IS NO MORE RESPONSIBLE FOR ANY
VIOLATION OF ITS INTERNATIONAL LEGAL OBLIGATIONS TO U GANDA AFTER
2 AUGUST 1998 THAN IN EARLIER PERIODS
1. Mr. President, Members of the Court, it is now my task to deal with the last period at issue
in Uganda’s first counter-claim and to show that the Democratic Republic of the Congo was not
responsible for the use of force against Uga nda in violation of international law after
2August1998. I hope that the fact that I am about to address an issue previously treated by my
26
colleague and friend OlivierCorten will not upset Mr.Reichler and lead him to exaggerated
conclusions about the discomfort experienced by th e Congo in dealing with that time period. If
Uganda is unable to establish the responsibility of the Democratic Republic of the Congo in respect
of that period, it is above all because theongo cannot be accused of any offensive action, any
attack, against Uganda. It should be recalled in th is respect that the other Party has been unable to
produce probative evidence confirming the Congo’s i nvolvement in a single hostile action directed
at its forces, or its territafter the beginning of August1998 7. In any event, from the legal
perspective, the Congo, as it has already shown a number of times ⎯ and as my colleague
OlivierCorten has just reminded us ⎯ was in a position of self-defence from that date onwards,
and this undeniably entitled it to use force repel the aggression against it, as well as to seek
support from other States2. According to Mr. Reichler, this is a newly adopted position, taken by
73
the Congo for the first time during this oral phase of the proceedingsThis is obviously untrue,
and I shall take the liberty of respectfully referring my esteemed opponent to the Congo’s written
pleadings, more specifically to paragraphs6.49 and 6.50 of the Reply, so that he can himself
74
ascertain that the Congo has been making this sel f-defence argument for nearly three years now
As I shall show later in this statement, much ev idence confirms that the Congo was in a position of
self-defence from 2August1998 onwards. In this connection I shall review the events occurring
7See the statement by Mr. Corten, 22 April 2005, CR 2005/11, pp. 28-32, paras. 28-39.
72
Ibid., pp. 32 et seq., paras. 40 et seq.
73
CR 2005/14, p. 15, para. 25.
7RDRC, pp. 369-370. - 19 -
between early August and mid-September1998, in respect of which the Parties remain deeply
divided.
27 I. The armed attack by Uganda did indeed begin on 2 August 1998
2. In respect of the starting point for this an alysis, Mr. Reichler implied in his statement on
Wednesday that the Democratic Republic of the Congo was no longer claiming that 2August
marked the commencement of Uganda’s invasion of the Congo 75. Here again, the analysis is
wrong. I shall simply recall the clarification of this point made by MaîtreKalala as Co-Agent of
the Democratic Republic of the C ongo in his first statement last Monday: “The Congo’s claim
covers a period commencing at the start of Uga nda’s aggression on 2 August 1998 and terminating
with the present proceedings.” 76 The Congo’s adoption of this date is neither arbitrary nor the
result of confusion as between the respective actions of Uganda and Rwanda. Rather, quite simply,
it is because that is the date when the rebellion against President Kabila’s Government commenced
and because Uganda’s participation in the Kitona airlift, from 4 August onwards, and the launching
of military hostilities by the Ugandan army in the eastern Congo over the following days clearly
show that Uganda was, from the beginning, a participant in this massive military operation aimed at
overthrowing the Congolese Government. Thus, th ere has been no change in the Democratic
Republic of the Congo’s position on this point.
II. Uganda did indeed participate in the Kitona airborne operation from
4 August 1998 onwards
Ug3 a.nda ⎯ and the Court heard this just two days ago ⎯ continues however to deny its
involvement in the Kitona operation. According to its counsel, the evidence adduced by the Congo
to prove that involvement is insufficient, essen tially because it allegedly consists of conflicting
press reports, witness statements prepared for the purpose and, moreover, taken by the Congolese
77
intelligence services, allegedly guilty of seri ous human rights violations in the past . Finally, the
purported “coup de grâce” , Uganda’s participation in the K itona operation is not confirmed by
7CR 2005/14, p. 21, para. 43.
76
CR 2005/12, p. 12, para. 11.
7CR 2005/14, pp. 24-25, paras. 50-51 (Mr. Reichler). - 20 -
28 documents which were contemporary with it, in partic ular by complaints lodged at the time by the
Congo’s representatives . I shall confine myself to four remarks in this regard.
4. First, the press reports are merely one of the elements on which the Congo relies, part of a
body of evidence of different kinds. What is more, the sources on which these reports are based are
varied, and the accounts thus do not all originate from a single source. Second, while some witness
statements adduced by the Congo were in effect take n after this case was initiated, that is not true
of all of them. At least two of them were obviously gathered in tempore non suspecto, during the
latter half of 1998 79. As for the allegations of maltreatment, it is, to tell the truth, difficult to find
anything which would entitle Uganda to claim th at duress of any kind was applied in the present
case, especially since there is abso lutely nothing indicating that the affidavits given in 1998 were
taken by the intelligence services incriminated by Ug anda. In any event, the statements given at
the time of the facts and the contemporary press repor ts corroborate each other. Third, Uganda’s
contention that the Congolese authorities failed at the time to mention participation by Ugandan
troops in this operation is wrong. In the letter he sent on 19August 1998 to the President of the
Security Council, the Congo’s Permanent Represen tative to the United Nations complained of the
consequences of the “interruption by the Rwa ndan-Ugandan military coalition of the supply of
water and electricity to the city of Kinshasa” 80. I would remind you that the Congolese capital
receives its water and electricity from the Inga Dam, which Rwandan and Ugandan troops seized
during their march on Kinshasa from Kitona. To dispel all doubt on this subject, I shall refer again
to the statement by the same Permanent Repr esentative of the Congo, on 10September 1998,
clearly accusing “Ugandan troops [of having] laid mines around the Inga Dam” 81. Here then are
29
clearly two Congolese statements, contemporary with the facts, which, without the slightest
ambiguity, implicate Uganda in regard to its participation in this operation. Exit the “coup de
grâce”.
78
Ibid., pp. 25-26, para. 52.
79
The affidavit of one of the pilots who said that he fl ew Ugandan soldiers to Kit ona is dated 15October1998
(RDRC, Ann.62); as for the affidavit of the commander of the Kitona base, who conf irms the presence of Ugandan
soldiers, it is manifestly contemporaneous with the facts, as shown by the specific list of planes landing at Kitona in this
operation, with the indication of the registration information for the aircraft in question (RDRC, Ann. 61).
80
Doc. S/1998/778, RDRC, Ann. 40.
8Ibid., Ann. 42. - 21 -
5. Finally, how could I conclude this brief discussion of the issue of evidence without
recalling the utter silence very carefully main tained by Mr.Reichler on Wednesday on the
Ugandan sources previously cited by the Congo, which also confirm Uganda’s involvement in the
Kitona operation. In the face of this accumulation of varied evidence, some of which is based on
Ugandan sources which the other Party was not in a position to impugn, Uganda’s denials on this
point obviously grow less and less credible. The sa me problem arises, moreover, in respect of the
scenario spun by Uganda in respect of the modes of its intervention in the eastern Congo ⎯ a
scenario which Uganda’s counsel never stop rewriti ng, in an attempt to adapt it to each advance
made by the Democratic Republic of the Congo in proving these facts.
III. Operation “Safe Haven” did indeed begin on 7 August 1998 and aimed at
supporting the Congolese rebels
6. Thus, in respect of the start of Uganda’s armed actions in Congolese territory, it is at the
very least intriguing to hear Uganda’s counsel re peatedly affirm, hand on heart, that Uganda has
82
never altered its version of the facts . Is it necessary to recall, once again, in this respect that
Uganda was still insisting even in its Rejoinder that the Congo had been “unable to show that
83
Uganda intervened militarily in the DRC before mid-September 1998” and that “Uganda initiated
no military action for more than six weeks ⎯ until the middle of September” 84 and that on
30 13 August “there was no border crossing by Ugandan troops at Aru or any other location” and that
“there is no evidence whatsoever that Ugandan forces entered the DRC in August 1998” 85.
7. Confronted with the testimony given by Ug andan soldiers before the Porter Commission,
counsel for Uganda were forced to elaborate th e thesis of a “modest reinforcement” of UPDF
troops in the Democratic Republic of the Congo allegedly occurring on 13 August 1998. But does
such a reinforcement not require that the borde r be crossed, and thereby call into question the
assertions, as categorical as they are, in Uganda’s written pleadings that “there is no evidence
whatsoever that Ugandan forces entered the DRC in August 1998”? And the doubt raised by this
8See, inter alia, CR 2005/14, p. 22, para. 44 (Mr. Reichler).
83
RU, p. 7, para. 22.
84
Ibid., p. 26, para. 63.
8Ibid., p. 67, paras. 154-155. - 22 -
does not relate solely to the date of 13August. It applies equally to the date of 7August. To
refresh the memory, 6or 7August is, according to the other Party, the date on which a Ugandan
contingent, peacefully in place in Beni, with the consent of the Congolese authorities, was
subjected to a totally unexpected attack on the part of the Forces armées congolaises , allegedly
86
joined by ADF rebels . As the Congo has already pointed out a number of times, the problem is
that this alleged attack is not confirmed by anyone at all 87. Thus, it would be fruitless to look for
any reference in the testimony of the Ugandan military leaders be fore the Porter Commission, for
example. Quite to the contrary, this version of the facts is contradicted both by the Congolese
soldiers then present on the ground and by General Kazini himself. Thus, Major Mwimba, of the
Forces armées congolaises, explains in his statement about these events that a Ugandan column of
tanks set out from the Congolese locality of Lume, near the Ugandan border, on 5 August 1998 and
88
seized Beni shortly afterwards . Thus, nothing whatsoever to do with a Ugandan contingent
already peacefully stationed in Beni at that date. As for General Kazini, his testimony before the
Porter Commission is crystal clear. Mr.Reichler endeavoured to question its significance, trying
once again to give it a meaning in complete contradi ction with its very terms, clear as they are.
The most striking passage in that testimony should be recalled: “‘Safe Haven’ started after the
89
31 capture of Beni, that was 7August98.” The capture of Beni, Mr.President, Members of the
Court. Once again, this is not at all a question of some defensive action by the Ugandan forces, but
rather a genuine offensive.
8. Mr. Reichler also offered a very peculiar reading of General Kazini’s testimony as to the
general strategy in the context of which Uganda’s armed action must be viewed. I shall briefly
recall the words of the testimony on this point: “there was a mutiny, the [Congolese] rebels were
taking control of those areas. So we decided to launch an offensive together with the rebels, a
90
special operation we code-named Safe Haven.” According to Mr.Reichler, the reference by
General Kazini to the support given by the Uganda n army to Congolese rebels in the “Safe Haven”
86CR 2005/6, p. 35, para. 53; CR 2005/14, pp. 21-22, para. 44 (Mr. Reichler).
87See, inter alia, CR 2005/11, p. 29, para. 32 (Mr. Corten).
88
RDRC, Ann. 53, pp. 3 and 4.
89CW/01/03 24/7/01, p. 128; DRC’s judges’ folder, tab 11; CR 2005/2, p. 30, para. 40 (Mr. Kalala).
90CW/01/03 24/7/01, p. 129; DRC’s judges’ folder, tab 17; see CR 2005/2, p. 39, para. 68 (Mr. Kalala). - 23 -
operation relates only to a later time, corresponding to the creation of the armed branch of the
MLC ⎯ the Mouvement de Libération du Congo ⎯ and in no way applies to the start of the
operation, in early August1998. That explanati on lacks credibility and is contradicted by the
words themselves of the testimony, which unequi vocally link the start of Uganda’s military
intervention in the Congo with the beginning of the mutiny and the app earance of the Congolese
rebel movements. In confining himself to re ferring to the later creation of the MLC, in
September 1998 ⎯ so that the operation begun in August could not have been aimed at helping this
movement ⎯ Mr.Reichler feigns ignorance of the fact that another Congolese rebel movement
already existed in August 1998: the RCD ⎯ the Rassemblement Congolais pour la Démocratie ⎯,
to which Uganda has moreover expressly admitted providing support, at least political in the
beginning, and military afterwards 91. Further, Mr. Reichler contradicts himself when he states that
Ugandan forces were welcomed, without resistance, in Bunia, on 12 August 1998, by a commander
32 of the Forces armées congolaises 9. The only “detail” which Uganda’s counsel neglects to mention
in this connection is that the officer in questi on had mutinied against the authorities in Kinshasa
and was therefore indeed a rebel, whom the UPDF forces were coming to assist. This is, moreover,
exactly the same situation which was to prevail, according to Uganda itself, in Kisangani a few
days later.
IV. The presence of Ugandan armed forces in Kisangani from 1 September 1998
onwards indeed confirms the thesis of aggression
9. Kisangani. 1September1998. Here ag ain, it would be fruitless to search for an
association of these terms in Uganda’s written pleadings. Not one word from the other Party on the
presence of its troops in Kisangani, 650km from the Ugandan border, from 1September1998
onwards. Not one word, in any event, before the moment when Uganda was forced to admit to this
presence, once again because of documents and testimony gathered in the Porter Commission
enquiry.
91
See the testimony of H.E.AmamaMbabazi before th e Porter Commission, appearing in RU, pp.68-69,
para. 157.
92CR 2005/6, p. 36, para. 56 (Mr. Reichler). - 24 -
10. But, as we now know, our opponents are quick to adapt to new circumstances. And they
find an explanation for everything. Thus, it wa s by invitation of the Rwandan army and the
Congolese rebels that, depending on the version, a few soldiers (according to Mr.Reichler’s
93
statement of 15 April ) or a Ugandan battalion (according to the statement by the same counsel of
Uganda on 27April 94) arrived in Kisangani to secure the airport. That airport allegedly was ⎯
even though Uganda “forgot” to mention it in its written pleadings ⎯ a “major delivery point for
the DRC Government and Sudanese arms and amm unitions to the ADF and other rebel groups”.
For Uganda, assuredly, all invitations, all consents are equally valid, whether issued by the official
government of a State, a foreign army which has invaded the territory of another State, or even a
rebel group. As for the justification offered by the other Party for its presence in Kisangani, the
least that can be said is that it is puzzling. Thus, was it because Uganda feared that the Rwandan
army or the Congolese rebels ⎯ who were at that time, lest we forget, Uganda’s closest allies in
the Congo ⎯ would allow the Kisangani airport to be used to supply Ugandan rebel groups that
33 Uganda felt a pressing need to despatch its own fo rces there? Once again, the scenario described
by Uganda proves very shaky.
11. Two further comments are necessary on this point. First, Uganda has never claimed
during the present oral phase of the proceedings that the UPDF forces deployed in Kisangani came
from the Congo. On the contrary, all indications are that they came directly from Uganda itself, as
shown by the document setting out the various stages of Operation “Safe Haven”, already
presented to the Court several times and found under tab 40 in the judges’ folder submitted by the
Democratic Republic of the Congo. Against the reference to Kisangani, this document bears the
notation “3BN arrival”, that is “arrival of the third battalion”. But this battalion is mentioned
nowhere in connection with the ope rations in Beni, Bunia and Watsa in Congolese territory in the
preceding weeks. Thus, it did indeed arrive dir ectly from Uganda, which contradicts, once again,
the other Party’s argument that no troops were sent into the Congo before mid-September1998.
Secondly, the fact that Kisangani, like Bunia before it, was occupied by the UPDF without a fight
in no way makes Uganda’s military deployment any less an invasion and act of aggression, as the
93
Ibid., CR 2005/14, p. 22, para. 45.
94
Ibid. - 25 -
95
other Party would appear to argue . It will first be noted on this point that, as a matter of fact, the
advance of the UPDF troops through other pa rts of the eastern Congo during August1998 was
marked by a great deal of fighting, as attested to, in particular, by the statements given by
96
Congolese officers who were then present in the area . Most importantly, as a matter of law, it is
important to recall that there is aggression where armed forces in significant numbers are present
without invitation in foreign territory, whether or not fighting is involved 97.
V. 11 September 1998 was not the date on which Uganda’s military engagement in
the Democratic Republic of the Congo began
12. A final point in the chronology of events wh ich we have just reviewed warrants mention.
That is the famous position statement by the UP DF on 11 September 1998, said to mark Uganda’s
98
34 decision to commit itself militarily in the Congo . The Democratic Republic of the Congo has
pointed out that the very wording of this statem ent contradicts Uganda’s contention, in that the
statement sets out the decision to maintain UPDF forces in the Congo, not to send them there.
Mr. Reichler attempted to elude this point, explaining that “maintain” can mean “to keep in place”
as well as to put someone or something in place and support them while they are there 99. In any
event, he explained, it is not appropriate to quibble about word choice here, because the document
100
was written by soldiers, not lawyers . But it is precisely for that reason that reliance should be
placed, yet again, on the ordinary meaning of the words. And there is no doubt about the ordinary
meaning. In a dictionary intended specifically for beginners, the primary meaning ascribed to the
word “maintain” is “not change ⎯ to make a situation or activ ity continue in the same way” 101.
Two other meanings follow: to keep up a buildi ng or a space; and to stand by a position one has
102
always taken (“he has always maintained that he was innocent”) . Here again, the rather
convoluted explanation suggested by Mr. Reichler thus accords very badly with the ordinary
9CR 2005/14, p. 23, para. 46 (Mr. Reichler).
9See, inter alia, RDRC, Anns. 51, 52 and 53.
97
See Article 3, resolution 3314 (XXIX) of 14 December 1974, defining aggression.
98
CMU, Ann. 27.
9CR 2005/14, p. 27, para. 55 (Mr. Reichler).
10Ibid.
10Cambridge Learner’s Dictionary, CUP, 2001, p. 393.
102
Ibid., pp. 393-394. - 26 -
meaning of the words. And, ultimately, Uganda’s thesis of a “turning point on
11 September 1998” would appear groundless. I shall note further, as a final point in this respect,
that the other Party has failed to offer anything in response to the DRC’s argument that the wording
of this declaration is very difficult to reconcile w ith Uganda’s claim of self-defence. It should be
recalled that the first objective of the operationwas defined as follows: “to deny the Sudan the
opportunity to use the territory of the DRC to destabilize Uganda” 10. It was therefore not in the
least a matter of responding to an alleged attack on Uganda, but rather of precluding such an attack
from Congolese territory in the future.
13. In all respects, the argument that the De mocratic Republic of the Congo found itself in a
position of self-defence from August 1998 onwards is thus fully supported. Even assuming that the
35 Congo could be blamed for hostile acts against Uganda during this period ⎯ which, I shall repeat
one last time, has never been established ⎯, those acts could therefore be justified as exercises of
the right of self-defence, and the Congo’s international responsibility thus could not be engaged as
a result. For all of the reasons which have been set out this morning, the Democratic Republic of
the Congo therefore respectfully requests the Court to reject Uganda’s first counter-claim. I thank
the Court once again for its attention and ask you, Mr.President, to give the floor to
ProfessorJeanSalmon, so that he may briefly repl y to the other Party’s argument concerning the
second counter-claim.
The PRESIDENT: Thank you, Professor Klein. I now give the floor to Professor Salmon.
Mr. SALMON: Thank you, Mr. President.
U GANDA ’S SECOND COUNTER -CLAIM
1. Mr.President, Members of the Court, it now falls to me to respond to the arguments
presented by my colleague and friend EricSuy on Uganda’s second counter-claim. I will not
return to what was said a moment ago by Maîtr e Tshibangu Kalala concerning the admissibility of
the preliminary objections raised by the Democratic Republic of the Congo.
103
CMU, Ann. 27. - 27 -
I. Inadmissibility for lack of connection
2. I will begin with the argument of the De mocratic Republic of the Congo that Uganda’s
second counter-claim is inadmissible because it lack s connection with the principal claim, being
based on a violation of the Vienna Convention on Diplomatic Relations.
Eric Suy contended that the DRC’s ar gument was misconceived, because it founded
Uganda’s claims on paragraphs405 to 408 of the Counter-Memorial without taking account of
paragraph 402, which cited the Vienna Convention three times. Unfortunately his reasoning does
not hold water, because it confuses the paragrap hs of the Counter-Memorial which contain
Uganda’s claims perse and the explanatory paragraphs which precede them. The Vienna
36 Convention is admittedly cited in a letter of protest dated 18December1998 from the Ugandan
Minister for Foreign Affairs, which appears in an explanatory paragraph concerning the attack on
the Embassy and the Chancery, that is to say in paragraph402. However, that paragraph ⎯ I
repeat ⎯ is not one of those in which Uganda’s claims are actually set out.
That view is not a figment of the imagination or a ploy by the Democratic Republic of the
Congo; it is the official position of Uganda. The Respondent, when requested to clarify what its
claims were exactly, expressly clarified the matter in paragraph6 of its Written Observations of
15August2001, stating therein that “the counte r-claims are set out in the Counter-Memorial in
appropriate sequence, as follows . . .”.
In its Observations, Uganda goes on to cite pa ragraph 379, which enumerates the principles
of international law allegedly violated by the DRC, and then, with respect to the section concerning
the attack on the Embassy, refers solely to paragraphs405 to 408 104. There is no mention of the
Vienna Convention in any of those paragraphs.
It is sometimes helpful for a party to read its own pleadings.
The argument concerning the use of the expressi on “rules of conventional international law”
in the Court’s Order of 29November2001 is not pertinent either, because the Court, in that
context, was not referring to the Vienna Convention but to international conventions, in particular
of humanitarian law, as they apply to individuals in the case of armed conflict.
This, we hope, settles the issue of the lack of connection.
104
“Written Observations of the Republic of Uganda on th e question of the admissibility of the counter-claims
made in the Counter-Memorial of the Republic of Uganda of 21 April 2001”, pp. 2,3,4 and 5. - 28 -
II. Inadmissibility of diplomatic protection
3. The Democratic Republic of the Congo further contends that the claims of the Republic of
Uganda are inadmissible because of a failure by the so-called Ugandan nationals to fulfil the
condition of nationality and to exhaust local remedies.
With respect to the individu als whose claims Uganda has es poused, it is quite incorrect to
contend that the Ugandan claims make a prope r distinction between Ugandan nationals and
diplomats. This confusion pervades the Ugandan pleadings and never has La Fontaine been more
37
appropriately cited, for it is impossible to dete rmine whether Uganda seeks to defend the mice or
the birds.
With all due respect to our friends on the other side of this Hall, the status of the individuals
concerned is never specified. They are all covered by the single expression in the
Counter-Memorial “diplomatic personnel and nationals”, in para graphs 397 and 399, as well as in
Annex23 to that pleading. In the Reply, those nationals are magically transformed into the
“individual victims . . . on the scene in their role as members of the Ugandan mission, or as family
105
members, or as staff of the mission” . Those individuals are agai n combined in the single
expression “diplomatic personnel and nationals” in Uganda’s Written Observations of
15 August 2001 (para. 60).
III. The claims are unfounded
4. The Democratic Republic of the Congo furthe r contends that the claims of the nationals
are not set out explicitly and that those of the Ugandan State are, on the merits, entirely fanciful.
This can be said, for example, of the vehicles whose official or private status, as well as their
quantity, seems to vary in a surprisingly casu al way: four Embassy vehicles (Ugandan
Counter-Memorial, para. 400) and four private ve hicles belonging to Ugandan nationals (Ugandan
Counter-Memorial, para.401); four Embassy vehicles and four private vehicles under the
protection of the Embassy, according to Annex 33 of the same Counter-Memorial. When you add
them up, that makes eight vehicles. However, in Annex 92 to the Counter-Memorial, there are only
two official vehicles and two private vehicles (“belonging to a Ugandan” and thus not to a
105
RU, p. 325, para. 703. - 29 -
diplomatic official). In the Reply, we again find four vehicles but they are reclassified as official in
paragraph 680! All this is hardly very serious.
The Republic of Uganda did not hide the fact that it submitted count er-claims in order to
embarrass the Democratic Republic of the Congo. It would have been wiser to have left this
second series of counter-claims to follow its norma l course: any aggrieved Ugandan nationals
38 should be advised to come forward, substantiate their claims and br ing them before the courts of
the Democratic Republic of the Congo 106.
As for the claims concerning official buildin gs of the Ugandan State, it has been known for
some time that there was no expropriation and that the buildings are not in a ruinous state as has
been claimed ⎯ the Court has been able to see this for itself in the photos reproduced in the Reply
107
of the Democratic Republic of the Congo . The most reasonable thing would be to leave this
issue to be settled through the negotiations alr eady underway between the two Parties. A joint
status report has already been drawn up for the bui ldings in Kinshasa. The residence is in good
condition and the Embassy needs certain repairs, al beit minor ones. The Republic of Uganda has
requested the DRC to provide it w ith an estimate for the refurbishment of the premises. For its
part, the Democratic Republic of the Congo is seeking settlement of its claim against Uganda,
following the public auctioning of the three buildings of the diplomatic mission of the Democratic
Republic of the Congo in Kampala 108.
5. Mr. President, Members of the Court, that brings to an end the last presentation before you
by counsel for the Democratic Republic of the Congo. Before closing, I would like to express, on
behalf of the entire team of the Democratic Repub lic of the Congo, our gr atitude to the Court for
the attention that it has kindly given to our oral statements. We would also like to thank all the
Registry staff and the interpreters, who have so courteously and expertly assisted us throughout
these three weeks of oral proceedings.
10RDRC, p. 380-381, para. 6.75-6.77.
107
Ibid., p. 390.
10See ibid., pp. 395 and 396 and Ann. 107. - 30 -
I would be grateful, MrP.resident, if you would kindly give the floor to
AmbassadorJacquesMasangu-a-Mwanza, in his cap acity as Agent, for his presentation of the
submissions of the Democratic Republic of the Congo on the Ugandan counter-claims.
The PRESIDENT: Thank you, Professor Salmon. I now give the floor to His Excellency
Mr. Jacques Masangu-a-Mwanza, the Agent of the Democratic Republic of the Congo.
39 Mr. MASANGU-A-MWANZA: Mr. President, I should like to begin by thanking you.
Submissions of the Democratic Republic of the Congo
Mr President, Members of the Court, as these oral proceedings draw to a close, I would like,
in a few words, to remind my colleague Khi ddu Makubuya, Agent of Uganda, that in African
culture all conflicts between communities have traditionally been settled under a “palaver tree” that
in Africa we call the “baobab”.
The baobab, for you and for us, is at this moment the International Court of Justice, principal
judicial organ of the United Nations, called upon to state the law in the conflict between our two
States.
The fact that we are appear ing before the Court does not mean that our two countries are
enemies. On the contrary, we are in the process of settling the dispute between us by peaceful
means.
I will now read out the submissions of the Democratic Republic of the Congo.
The Congo requests the Court to adjudge and declare:
As regards the first counter-claim submitted by Uganda,
1. To the extent that it relates to the peri od before Laurent-Désiré Kabila came to power,
Uganda’s claim is inadmissible because Uganda had previously renounced its right to lodge
such a claim: in the alterna tive, the claim is unfounded becau se Uganda has failed to establish
the facts on which it is based;
2. To the extent that it relates to the period from the time when Laurent-Désiré Kabila came to
power to the time when Uganda launched its armed attack, Uganda’s claim is unfounded in fact
because Uganda has failed to establish the facts on which it is based; - 31 -
3. To the extent that it relates to the period subsequent to the launching of Uganda’s armed attack,
Uganda’s claim is unfounded both in fact and in law because Uganda has failed to establish the
40 facts on which it is based and, in any event, fro m 2 August 1998 the DRC was in a situation of
self-defence.
As regards the second counter-claim submitted by Uganda:
1. To the extent that it now relates to the inte rpretation and application of the Vienna Convention
of 1961 on Diplomatic Relations, the clai m submitted by Uganda radically changes the
subject-matter of the dispute, contrary to the Statut e and to the Rules of Court; that part of the
claim must therefore be dismissed from the present proceedings;
2. That part of the claim relating to the alleged mistreatment of certain Ugandan nationals remains
inadmissible because Uganda has still failed to show that the requirements laid down by
international law for the exercise of its diplomatic protection were satisfied; in the alternative,
that part of the claim is unfounded because Ug anda is still unable to establish the factual and
legal bases of its claims.
3. That part of the claim relating to the alle ged expropriation of Uganda ’s public property is
unfounded because Uganda is still unable to establish the factual and legal bases of its claims.
Mr. President, my Government thus rejects the two counter-claims. Thank you.
Le PRESIDENT : Je vous remercie, Excellence. La Cour prend acte des conclusions finales
dont vous avez donné lecture au nom de la Répub lique démocratique du Congo concernant les
demandes reconventionnelles de l’Ouganda, tout co mme elle a pris acte, le lundi 25avril, des
conclusions finales du Congo concernant ses prop res demandes et, le mercredi 27avril, des
conclusions finales présentées par l’Ouganda.
Voilà qui nous amène à la fin de ces trois semaines d’audiences consacrées aux plaidoiries
orales en l’espèce.
Je tiens à adresser mes remerciements aux agents , conseils et avocats des deux Parties qui
sont intervenus.
Conformément à la pratique, je prierai les agen ts de bien vouloir rester à la disposition de la
Cour pour tous renseignements complémentaires dont celle-ci pourrait avoir besoin. Sous cette - 32 -
41 réserve, je déclare close la procédure orale en l’affaire des Activités armées sur le territoire du
Congo (République démocratique du Congo c. Ouganda).
La Cour va maintenant se retirer pour délib érer. Les agents des Parties seront avisés en
temps utile de la date à laquelle la Cour rendra son arrêt.
La Cour n’étant saisie d’aucune autre question aujourd’hui, la séance est levée.
L’audience est levée à 11 h 40.
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Translation