INTERNATIONAL COURT OF JUSTICE
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Website: www.icj-cij.org
Summary
Not an official document
Summary 2005/3
19 December 2005
Armed Activities on the Territory of the Congo (Democratic Republic
of the Congo v. Uganda)
Summary of the Judgment of 19 December 2005
History of the proceedings and submissions of the Parties (paras. 1-25)
The Court begins by recapitulating the various stages of the proceedings.
On 23June1999, the Democratic Republic of the Congo (hereinafter “the DRC”) filed an
Application instituting proceedings against the Re public of Uganda (hereinafter “Uganda”) in
respect of a dispute concerning “acts of armed aggression perpetrated by Uganda on the territory of
the Democratic Republic of the Congo, in flagra nt violation of the United Nations Charter and of
the Charter of the Organization of African Unity” (emphasis in the original).
In order to found the jurisdiction of the Court, the Application relied on the declarations
made by the two Parties accepting the Court’ s compulsory jurisdiction under Article36,
paragraph 2, of the Statute of the Court.
By an Order of 21 October 1999, the Court fixed time-limits for the filing of the Memorial of
the DRC and the Counter-Memorial of Uganda. The DRC filed its Memorial within the time-limit
prescribed. On 19June2000, the DRC submitted a request for the indication of provisional
measures pursuant to Article41 of the Statute of the Court. By an Order dated 1July2000, the
Court, after hearing the Parties, indicated certain provisional measures. Uganda subsequently filed
its Counter-Memorial within the time-limit fixed. That pleading included counter-claims.
Since the Court included upon the Bench no judge of the nationality of the Parties, each
Party availed itself of its right under Article 31 of the Statute of the Court to choose a judge ad hoc
to sit in the case. The DRC chose Mr. Joe Verhoeven and Uganda Mr. James L. Kateka.
At a meeting held by the President of th e Court with the Agen ts of the Parties on
11 June 2001, the DRC, invoking Article80 of the Rules of Court, raised certain objections to the
admissibility of Uganda’s counter-claims. Th e two Agents agreed that their respective
Governments would file written observations on that question; they also agreed on the time-limits
for that purpose. Those observations were filed within the prescribed time-limits.
By an Order of 29November2001, the Cour t held that two of the three counter-claims
submitted by Uganda were admissible as such and formed part of the current proceedings, but that
the third was not. It also directed the DRC to file a Reply and Uganda to file a Rejoinder,
addressing the claims of both Parties, and fixed time-limits for the filing of those pleadings. Lastly, - 2 -
the Court held that it was necessary, “in order to ensure strict equality be tween the Parties, to
reserve the right of the Congo to present its views in writing a second time on the Ugandan
counter-claims, in an additional pleading which [might] be the subject of a subsequent Order”. The
DRC duly filed its Reply within the time-limit pres cribed while Uganda filed its Rejoinder within
the time-limit extended by a further Order. By an Order of 29January2003 the Court, taking
account of the agreement of the Parties, authori zed the submission by the DRC of an additional
pleading relating solely to the counter-claims submitted by Uganda and fixed a time-limit for the
filing of that pleading. The DRC duly filed the additional pleading within the time-limit fixed.
At a meeting held by the President of th e Court with the Agen ts of the Parties on
24 April 2003, the Agents presented their views on the organization of the oral proceedings on the
merits. Pursuant to Article 54, paragraph 1, of the Rules, the Court fixed 10 November 2003 as the
date for the opening of the oral proceedings. On 5 November 2003, the Agent of the DRC enquired
whether it might be possible to postpone to a later date, in April 2004, the opening of the hearings
in the case, “so as to permit the diplomatic negotiations engaged by the Parties to be conducted in
an atmosphere of calm”. By a letter of 6 November 2003, the Agent of Uganda informed the Court
that his Government “supporte[d] the proposal and adopt[ed] the request”. On the same day, the
Registrar informed both Parties by letter that th e Court, “taking account of the representations
made to it by the Parties, [had] decided to postpone the opening of the oral proceedings in the
case”. By a letter of 9 September 2004, the Agent of the DRC formally requested that the Court fix
a new date for the opening of the oral proceedings . By letters of 20October2004, the Registrar
informed the Parties that the Court had decided to fix Monday 11 April 2005 for the opening of the
oral proceedings in the case.
Public hearings were held from 11April to 29April2005, during which the following
submissions were presented by the Parties:
On behalf of the DRC,
at the hearing of 25 April 2005, on the claims of the DRC:
“The Congo requests the Court to adjudge and declare:
1. That the Republic of Uganda, by enga ging in military and paramilitary activities
against the Democratic Republic of the C ongo, by occupying its territory and by
actively extending military, logistic, econ omic and financial support to irregular
forces having operated there, has violated the following principles of conventional
and customary law:
⎯ the principle of non-use of force in international relations, including the
prohibition of aggression;
⎯ the obligation to settle international disput es exclusively by peaceful means so as
to ensure that international peace and security, as well as justice, are not placed in
jeopardy;
⎯ respect for the sovereignty of States and the rights of peoples to
self-determination, and hence to choose their own political and economic system
freely and without outside interference;
⎯ the principle of non-intervention in matters within the domestic jurisdiction of
States, including refraining from extending an y assistance to the parties to a civil
war operating on the territory of another State. - 3 -
2. That the Republic of Uganda, by committin g acts of violence against nationals of
the Democratic Republic of the Congo, by killing and injuring them or despoiling
them of their property, by failing to take adequate measures to prevent violations
of human rights in the DRC by persons under its jurisdiction or control, and/or
failing to punish persons under its jurisdic tion or control having engaged in the
above-mentioned acts, has violated the following principles of conventional and
customary law:
⎯ the principle of conventional and customary law imposing an obligation to respect,
and ensure respect for, fundamental human rights, including in times of armed
conflict, in accordance with international humanitarian law;
⎯ the principle of conventional and customary law imposing an obligation, at all
times, to make a distinction in an arme d conflict between civilian and military
objectives;
⎯ the right of Congolese nationals to enjoy the most basic rights, both civil and
political, as well as economic, social and cultural.
3. That the Republic of Uganda, by engagi ng in the illegal exploitation of Congolese
natural resources, by pillaging its assets and wealth, by failing to take adequate
measures to prevent the illegal exploitation of the resources of the DRC by
persons under its jurisdiction or control, and/or failing to punish persons under its
jurisdiction or control having engaged in the above-mentioned acts, has violated
the following principles of conventional and customary law:
⎯ the applicable rules of international humanitarian law;
⎯ respect for the sovereignty of States, including over their natural resources;
⎯ the duty to promote the realization of the principle of equality of peoples and of
their right of self-determination, and consequently to refrain from exposing
peoples to foreign subjugation, domination or exploitation;
⎯ the principle of non-interference in matters within the domestic jurisdiction of
States, including economic matters.
4. (a) That the violations of international law set out in submissions1, 2 and 3
constitute wrongful acts attributable to Uganda which engage its international
responsibility;
(b) that the Republic of Uganda sh all cease forthwith all continuing
internationally wrongful acts, and in particular its support for irregular forces
operating in the DRC and its exploitati on of Congolese wealth and natural
resources;
(c) that the Republic of Uganda shall provide specific guarantees and assurances
that it will not repeat the wrongful acts complained of;
(d) that the Republic of Uganda is under an obligation to the Democratic
Republic of the Congo to make reparation for all injury caused to the latter by
the violation of the obligations imposed by international law and set out in
submissions 1, 2 and 3 above; - 4 -
(e) that the nature, form and amount of th e reparation shall be determined by the
Court, failing agreement thereon between the Parties, and that the Court shall
reserve the subsequent procedure for that purpose.
5. That the Republic of Uganda has violated the Order of the Court on provisional
measures of 1July2000, in that it has failed to comply with the following
provisional measures:
‘(1) both Parties must, forthwith, prevent and refrain from any action,
and in particular any armed action, which might prejudice the rights
of the other Party in respect of whatever judgment the Court may
render in the case, or which might aggravate or extend the dispute
before the Court or make it more difficult to resolve;
(2) both Parties must, forthwith, take all measures necessary to comply
with all of their obligations under international law, in particular
those under the United Nations Charter and the Charter of the
Organization of African Unity, and with United Nations Security
Council resolution 1304 (2000) of 16 June 2000;
(3) both Parties must, forthwith, take all measures necessary to ensure
full respect within the zone of conflict for fundamental human rights
and for the applicable provisions of humanitarian law’”;
at the hearing of 29 April 2005, on the counter-claims of Uganda:
“The Congo requests the International Court of Justice to adjudge and declare:
As regards the first counter-claim submitted by Uganda:
(1) to the extent that it relates to the pe riod 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 alternative, the claim is unfounded because
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;
(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 facts on which it is based and, in any event,
from 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 interpretation and application of the Vienna
Convention of 1961 on Diplomatic Relations, the claim submitted by Uganda
radically changes the subject-matter of the dispute, contrary to the Statute 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 th e alleged mistreatment of certain Ugandan
nationals remains inadmissibl e because Uganda has still failed to show that the
requirements laid down by international law for the exercise of its diplomatic - 5 -
protection were satisfied; in the alterna tive, that part of the claim is unfounded
because Uganda is still unable to establish the factual and legal bases of its claims.
(3) that part of the claim relating to the alleged expropriation of Uganda’s public
property is unfounded becaus e Uganda is still unable to establish the factual and
legal bases of its claims.”
Ubehnalfa,
at the hearing of 27 April 2005, on the claims of the DRC and the counter-claims of Uganda:
“The Republic of Uganda requests the Court:
(1) To adjudge and declare in accordance with international law:
(A) that the requests of the Democratic Republic of the Congo relating to the
activities or situations involving the Re public of Rwanda or her agents are
inadmissible for the reasons set forth in ChapteXr V of the
Counter-Memorial and reaffirmed in the oral pleadings;
(B) that the requests of the Democratic Republic of the Congo that the Court
adjudge and declare that the Republic of Uganda is responsible for various
breaches of international law, as alleged in the Memorial, the Reply and/or
the oral pleadings are rejected; and
(C)that Uganda’s counter-claims presented in ChapteXr VIII of the
Counter-Memorial, and reaffirmed in Chapter VI of the Rejoinder as well as
the oral pleadings be upheld.
(2) To reserve the issue of reparation in relation to Uganda’s counter-claims for a
subsequent stage of the proceedings.”
Situation in the Great Lake region and task of the Court (para. 26)
The Court notes that it is aware of the comple x and tragic situation which has long prevailed
in the Great Lakes region and of the suffering by the local population. It observes that the
instability in the DRC in particular has had negati ve security implications for Uganda and some
other neighbouring States. It however states that its task is to respond, on the basis of international
law, to the particular legal dispute brought before it.
The DRC’s first submission (paras. 28-165)
⎯ Contentions of the Parties (paras. 29-41)
The Court sets out the contentions of the Par ties. The DRC asserts that, following President
Laurent-Désiré Kabila’s accession to power in May 1997, Uganda and Rwanda were granted
substantial benefits in the DRC in the military and economic fields. According to the DRC,
President Kabila subsequently sought to reduce th e two countries’ influence and this “new policy
of independence and emancipati on” from Rwanda and Uganda constituted the reason for the
invasion of Congolese territory by Ugandan forces in August 1998. The DRC claims that on
4August 1998 Uganda and Rwanda organized an ai rborne operation, flying their troops from
Goma on the eastern frontier of the DRC to Kitona, some 1,800 km away on the other side of the
DRC, on the Atlantic coast. It further states that, in the north-eastern part of the country, within a
matter of months, troops from the Uganda People s’ Defence Forces (UPDF) had advanced and
progressively occupied a substantial part of Co ngolese territory in several provinces. The DRC
also submits that Uganda supported Congolese armed groups opposed to President Kabila’s - 6 -
Government. For its part Uganda affirms that on 4August 1998 there were no Ugandan troops
present in either Goma or Kitona, or on board the planes referred to by the DRC. It claims that
upon assuming power, President Kabila invited Uganda to deploy its troops in eastern Congo since
the Congolese army did not have the resources to control the remote eastern provinces, and in order
to “eliminate” the anti-Ugandan insu rgents operating in that zone and to secure the border region.
Uganda maintains that between May and July 1998 President Kabila broke off his alliances with
Rwanda and Uganda and established new alliances with Chad, the Sudan and various anti-Ugandan
insurgent groups. Uganda affirms that it did not send additional troops into the DRC during
August 1998 but states, however, that by August-September 1998, as the DRC and the Sudan
prepared to attack Ugandan forces in eastern Con go, its security situation had become untenable.
Uganda submits that in response to this “grave th reat, and in the lawful exercise of its sovereign
right of self-defence”, it made a decision on 11September 1998 to augment its forces in eastern
Congo and to gain control of the strategic airfield s and river ports in northern and eastern Congo.
Uganda notes that the on-going regional peace proc ess led to the signing on 10 July 1999 of the
Lusaka Ceasefire Agreement, followed by the Kampala and Harare Disengagement Plans. Finally,
under the terms of the bilateral Luanda Agreement, signed on 6 September 2002, Uganda agreed to
withdraw all its troops from the DRC, except for those expressly authorized by the DRC to remain
on the slopes of Mt. Ruwenzori. Uganda claims that it completed this withdrawal in June 2003 and
that since that time, “not a single Ugandan soldier has been deployed inside the Congo”.
⎯ Issue of consent (paras. 42-54)
After having examined the materials put before it by the Parties, the Court finds that it is
clear that in the period preceding August1998 the DRC did not object to Uganda’s military
presence and activities in its eastern border area. The Court takes note of the Protocol on Security
along the Common Border signed on 27April1998 between the two countries, in which they
agreed that their respective armies would “co-operate in order to ensure security and peace along
the common border”. The Court finds however, that, while the co-operation envisaged in the
Protocol may be reasonably understood as having its effect in a continued authorization of
Ugandan troops in the border area, it was not the legal basis for such authorization or consent. The
source of an authorization or consent to the crossing of the border by these troops antedated the
Protocol; this prior authorization or consen t could thus be withdrawn at any time by the
Government of the DRC, without further formalities being necessary.
The Court observes that when President Kabila came to power, the influence in the DRC of
Uganda, and in particular of Rwanda, became substantial. It states that from late Spring1998
President Kabila sought, for various reasons, to redu ce this foreign influence. On 28 July 1998, an
official statement by President Kabila was publishe d, in which he announced that he “had just
terminated, with effect from... Monday 27Ju ly 1998, the Rwandan military presence which has
assisted us during the period of the country’s liberation” and concluded that “this marks the end of
the presence of all foreign military forces in th e Congo”. The DRC contends that, although there
was no specific reference to Ugandan troops in the statement, the final phrase indicated that
consent was withdrawn for Ugandan as well as Rw andan troops. Uganda, for its part, maintains
that the President’s statement was directed at the Rwandan forces alone. The Court observes that
the content of President Kabila’s statement, as a purely textual matter, was ambiguous.
The Court draws attention to the fact that the consent that had been given to Uganda to place
its forces in the DRC, and to en gage in military operations, was not an open-ended consent. Even
had consent to the Ugandan military presence exte nded much beyond the end of July1998, the
parameters of that consent, in terms of geographic location and objectives, would have remained
thus restricted. - 7 -
In the event, the issue of withdrawal of c onsent by the DRC, and that of expansion by
Uganda of the scope and nature of its activities, went hand in hand. The Court observes that at the
Summit of Heads of State held in Victoria Falls on 7 and 8 August 1998 the DRC accused Rwanda
and Uganda of invading its territory. It thus a ppears evident to the Court that any earlier consent
by the DRC to the presence of Ugandan troops on its territory had at the latest been withdrawn by
8 August 1998, i.e. the closing date of the Summit.
⎯ Findings of fact concerning Uganda’s use of force in respect of Kitona
(paras. 55-71)
The Court notes that the dispute about the commencement date of the military action by
Uganda that was not covered by consent is, in the most part, directed at the legal characterization of
events rather than at whether these events occurr ed. In some instances, however, Uganda denies
that its troops were ever presen t at particular locations, the mili tary action at Kitona being an
important example.
The Court then sets out its method of assessing the vast amount of evidentiary materials
proffered by the Parties. It recalls that its task is to decide not only which of those materials must
be considered relevant, but also which of them have probative value with regard to the alleged
facts. The Court explains that it will treat with caution evidentiary materials specially prepared for
this case and also materials emanating from a single source. It will prefer contemporaneous
evidence from persons with direct knowledge; it will give particular attention to reliable evidence
acknowledging facts or conduct unfavourable to th e State represented by the person making them;
and it will give weight to evidence that has no t been challenged by impartial persons for the
correctness of what it contains. It further points out that evidence obtained by examination of
persons directly involved, and who were subs equently cross-examined by judges skilled in
examination and experienced in assessing large amounts of factual information, merits special
attention. It will thus give appropriate considera tion to the Report of the Judicial Commission of
Inquiry into Allegations of Illegal Exploitation of Natural Resources and Other Forms of Wealth in
the Democratic Republic of th e Congo set up by the Ugandan Government in May2001 and
headed by JusticeDavidPorter (“the Porter Commission”), which has been accepted by both
Parties.
Having examined the evidence in relation to the DRC’s contention concerning the events at
Kitona, the Court concludes that it has not been established to its satisfaction that Uganda
participated in the attack on Kitona on 4 August 1998.
⎯ Findings of fact: military action in the eas t of the DRC and in other areas of that
country (paras. 72-91)
The Court states that the facts regarding the military action by Uganda in the east of the DRC
between August1998 and July1999 are relatively lit tle contested between the Parties. Based on
the evidence in the case file, it determines which locations were taken by Uganda in this period and
the corresponding “dates of capture”.
The Court states that there is, however, considerable controversy between the Parties over
the DRC’s claim regarding towns taken after 10 July 1999. The Court recalls that on this date the
Parties had agreed to a ceasefire and to all furthe r provisions of the Lusaka Agreement. It makes
no findings as to the responsibility of each of the Parties for any violations of the Lusaka
Agreement, confining itself to stating that it ha s not received convinci ng evidence that Ugandan
forces were present at locations claimed by the DRC to have been taken after 10 July 1999. - 8 -
⎯ Did the Lusaka, Kampala and Harare Agreements constitute any consent of the
DRC to the presence of Ugandan troops? (paras. 92-105)
The Court turns to the question whether the Lusaka Agreement, the Kampala and Harare
Disengagement Plans and the Luanda Agreement constituted consent to the presence of Ugandan
troops on the territory of the DRC.
It observes that nothing in the provisions of the Lusaka Agreement can be interpreted as an
affirmation that the security interests of Uganda had already required the presence of Ugandan
forces on the territory of the DRC as from September 1998. It finds that the Lusaka Agreement
only represented an agreed modus operandi for the parties, providing a framework for the orderly
withdrawal of all foreign forces from the DRC. In accepting this modus operandi the DRC did not
“consent” to the presence of Ugandan troops. This conclusion did not change with the revisions to
the schedule for withdrawal that subsequently became necessary.
After careful examination of the Kampala and Harare Disengagement Plans, as well as of the
Luanda Agreement, the Court concludes that th e various treaties directed to achieving and
maintaining a ceasefire, the withdrawal of foreign forces and the stabilization of relations between
the DRC and Uganda, did not (save for the limited exception regarding the border region of the
Ruwenzori Mountains contained in the Luanda Agre ement) constitute consent by the DRC to the
presence of Ugandan troops on its territory for the period after July 1999, in the sense of validating
that presence in law.
⎯ Self-defence in the light of proven facts (paras. 106-147)
The Court states that Ugandan actions at Aru, Beni, Bunia and Watsa in August 1998 were
of a different nature from previous operations along the common border. The Court finds these
actions to be quite outside any mutual understand ing between the Parties as to Uganda’s presence
on Congolese territory near the border. Such actions could therefore only be justified, if at all, as
actions in self-defence. However, the Court notes that at no time has Uganda sought to justify
them on this basis. By contrast, the operation known as operation “Safe Haven”, i.e. military
actions of Uganda on the DRC’s territory after 7 August 1998, was firmly rooted in a claimed
entitlement “to secure Uganda’s leg itimate security interests” and, according to the Court, those
who were intimately involved in its execution re garded the military actions throughout August
1998 as already part and parcel of that operation.
The Court observes that the objectives of operation “Safe Haven”, as stated in a Ugandan
High Command document issued on 11 September 1998, were not consonant with the concept of
self-defence as understood in international law. Uganda maintains that the operation had been
launched because of “stepped-up cross-border a ttacks against Uganda by the Allied Democratic
Forces (ADF), which was bein g re-supplied and re-equipped by the Sudan and the DRC
Government”. Uganda claims th at there existed a tripartite anti- Ugandan conspiracy between the
DRC, the ADF and the Sudan for this purpose. After careful consideration of the evidence
produced by Uganda, the Court observes that it canno t safely be relied on to prove that there was
an agreement between the DRC and the Sudan to participate in or to support military action against
Uganda; or that any action by the Sudan was of su ch character as to justify Uganda’s claim that it
was acting in self-defence.
The Court further notes that Uganda did not report to the Security Council events that it had
regarded as requiring it to act in self-defence. Itfurther states that Uganda never claimed that it
had been subjected to an armed attack by the armed forces of the DRC. The “armed attacks” to
which reference was made came rather from the ADF. Furthermore, there was no satisfactory
proof of the involvement in these attacks, direct or indirect, of the Government of the DRC. - 9 -
The Court concludes that the legal and factual circumstances for the exercise of a right of
self-defence by Uganda against the DRC were not present.
⎯ Findings of law on the prohibition against the use of force (paras. 148-165)
As to the DRC’s claim that, from September1998 onwards, Uganda both created and
controlled the Congo Liberation Movement (MLC ), a rebel movement led by Mr.Bemba, the
Court states that there is no credible evidence to support this allegation. The Court however notes
that the training and military support given by Uga nda to the ALC, the military wing of the MLC,
violated certain obligations of international law.
In relation to the first of the DRC’s final submissions, the Court finds that Uganda has
violated the sovereignty and also the territorial integrity of the DRC. Uganda’s actions equally
constituted an interference in the internal affairs of the DRC and in the civil war raging there. The
unlawful military intervention by Uganda was of such magnitude and duration that the Court
considers it to be a grave violation of the prohibition on the use of force expressed in Article2,
paragraph 4, of the Charter.
The issue of belligerent occupation (paras. 166-180)
Before turning to the DRC’s second and thir d submissions, the Court considers the question
as to whether or not Uganda was an occupying Po wer in the parts of the Congolese territory where
its troops were present at the relevant time.
It observes that, under customary international law, as reflected in Article42 of the Hague
Regulations of 1907, territory is considered to be occupied when it is actually placed under the
authority of the hostile army, and the occupation extends only to the territory where such authority
has been established and can be exercised.
The Court states that it is not disputed betw een the Parties that General Kazini, commander
of the Ugandan forces in the DRC, created the new “province of Kibali-Ituri” in June1999. It
considers that, regardless of whether or not General Kazini acted in violation of orders and was
punished as a result, his conduct is clear evidence of the fact that Uganda established and exercised
authority in Ituri as an occupying Power. Th e Court however observes that the DRC does not
provide any specific evidence to show that author ity was exercised by the Ugandan armed forces in
any areas other than in Ituri district.
Having concluded that Uganda was the occupy ing Power in Ituri at the relevant time, the
Court states that, as such, it was under an ob ligation, according to Article43 of the Hague
Regulations, to take all measures in its power to restore, and ensure, as far as possible, public order
and safety in the occupied area, wh ile respecting, unless absolutely prevented, the laws in force in
the DRC. This obligation comprised the duty to secure respect for the applicable rules of
international human rights law and international huma nitarian law, to protect the inhabitants of the
occupied territory against acts of violence, and not to tolerate such violence by any third party.
The Court finds that Uganda’s responsibility is engaged both for any acts of its military that
violated its international obligations and for any lack of vigilance in preventing violations of human
rights and international humanitarian law by other actors present in the occupied territory,
including rebel groups acting on their own account . It notes that Uganda at all times has
responsibility for all actions and omissions of its own military forces in the territory of the DRC in
breach of its obligations under the rules of international human rights law and international
humanitarian law which are relevant and applicable in the specific situation. - 10 -
The DRC’s second submission (paras. 181-221)
⎯ Violations of international human rights law and international humanitarian law:
contentions of the Parties (paras. 181-195)
The Court sets out the contention of the DRC that Ugandan armed forces committed
wide-scale human rights violations on Congolese territory, particularly in Ituri, and Uganda’s
contention that the DRC has failed to provide any credible evidentiary basis to support its
allegations.
⎯ Admissibility of claims in relation to events in Kisangani (paras. 196-204)
The DRC’s claim relates in part to events in Kisangani, where in June2000 fighting broke
out between Ugandan and Rwandan troops. It is Uganda’s contention that, in the absence of
Rwanda from the proceedings, the DRC’s claim relating to Uganda’s responsibility for these events
is inadmissible.
The Court points out that it has had to examine questions of this kind on previous occasions.
In the case concerning Certain Phosphate Lands (Nauru v. Australia), the Court observed that it is
not precluded from adjudicating upon the claims submitted to it in a case in which a third State
“has an interest of a legal nature which may be a ffected by the decision in the case”, provided that
“the legal interests of the third State which ma y possibly be affected do not form the very
subject-matter of the decision that is applied for” . The Court considers that this jurisprudence is
applicable in the current procee dings since the interests of Rwanda do not constitute the “very
subject-matter” of the decision to be rendered by it. Thus it is not necessary for Rwanda to be a
party to this case for the Court to be able to ru le on Uganda’s responsibility for violations of its
obligations under international human rights law an d international humanitarian law in the course
of fighting in Kisangani.
⎯ Violations of international human rights law and international humanitarian law:
findings of the Court (paras. 205-221)
Having examined the case file, the Court consid ers that it has credible evidence sufficient to
conclude that the UPDF troops committed acts of killing, torture and other forms of inhumane
treatment of the civilian population, destroyed villages and civilian buildings, failed to distinguish
between civilian and military targets and to prot ect the civilian population in fighting with other
combatants, incited ethnic conflict and took no step s to put an end to such conflicts, was involved
in the training of child soldiers, and failed to ta ke measures to ensure respect for human rights and
international humanitarian law in Ituri.
The Court however does not consider that the allegation of the DRC that the Ugandan
Government carried out a deliberate policy of terror has been proven.
Turning to the question as to whether acts and omissions of the UPDF and its officers and
soldiers are attributable to Uganda, the Court states that the conduct of the UPDF as a whole is
clearly attributable to Uganda, being the conduct of a State organ. The conduct of individual
soldiers and officers of the UPDF is to be consid ered as the conduct of a State organ. In the
Court’s view, by virtue of the military status a nd function of Ugandan soldiers in the DRC, their
conduct is attributable to Uganda. It is furthermore irrelevant for the attribution of their conduct to
Uganda whether UPDF personnel acted contrary to the instructions given or exceeded their
authority. According to a well-established rule of a customary nature, as reflected in Article3 of
the Fourth Hague Convention respecting the Laws and Customs of War on Land of 1907 as well as
in Article91 of Protocol I additional to the Geneva Conventions of 1949, a party to an armed
conflict shall be responsible for all acts by persons forming part of its armed forces. - 11 -
The Court finds that the acts committed by the UPDF and officers and soldiers of the UPDF
are in clear violation of the obligations under the Hague Regulations of 1907, Articles25, 27
and 28, as well as Articles 43, 46 and 47 with rega rd to obligations of an occupying Power. These
obligations are binding on the Parties as customar y international law. Uganda also violated the
following provisions of the international humanitarian law and international human rights law
instruments, to which both Uganda and the DRC are parties:
⎯ Fourth Geneva Convention, Articles 27 and 32 as well as Article 53 with regard to obligations
of an occupying Power;
⎯ International Covenant on Civil and Political Rights, Articles 6, paragraph 1, and 7;
⎯ First Protocol Additional to the Geneva Conventions of 12August1949, Articles48, 51, 52,
57, 58 and 75, paragraphs 1 and 2;
⎯ African Charter on Human and Peoples’ Rights, Articles 4 and 5;
⎯ Convention on the Rights of the Child, Article 38, paragraphs 2 and 3;
⎯ Optional Protocol to the Convention on the Rights of the Child, Articles1, 2, 3, paragraph3,
Articles 4, 5 and 6.
The Court thus concludes that Uganda is internationally responsible for violations of
international human rights law and international humanitarian law committed by the UPDF and by
its members in the territory of the DRC and for failing to comply with its obligations as an
occupying Power in Ituri.
The Court points out that, while it has pronounced on the violations of international human
rights law and international humanitarian law committed by Ugandan military forces on the
territory of the DRC, the actions of the various parties in the complex conflict in the DRC have
contributed to the immense suffering faced by the Congolese population. The Court is painfully
aware that many atrocities have been committed in the course of the conflict. It is incumbent on all
those involved in the conflict to support the peace process in the DRC and other peace processes in
the Great Lakes area, in order to ensure respect for human rights in the region.
The DRC’s third submission (paras. 222-250)
⎯ Illegal exploitation of natural resources (paras. 222-236)
The Court sets out the contention of the DRC th at Ugandan troops systematically looted and
exploited the assets and natural resources of the DRC and Uganda’s contention that the DRC has
failed to provide reliable evidence to corroborate its allegations.
⎯ Findings of the Court concerning acts of illegal exploitation of natural resources
(paras. 237-250)
Having examined the case file, the Court finds that it does not have at its disposal credible
evidence to prove that there was a governmental policy on the part of Uganda directed at the
exploitation of natural resources of the DRC or th at Uganda’s military intervention was carried out
in order to obtain access to Congolese resources. At the same time, the Court considers that it has
ample credible and persuasive evidence to conclude that officers and soldiers of the UPDF,
including the most high-ranking officers, were involved in the looting, plundering and exploitation
of the DRC’s natural resources and that the military authorities did not take any measures to put an
end to these acts. - 12 -
As the Court has already noted, Uganda is responsible both for the conduct of the UPDF as a
whole and for the conduct of individual soldiers and officers of the UPDF in the DRC. The Court
further recalls that it is also irrelevant for th e purposes of attributing their conduct to Uganda
whether UPDF officers and soldiers acted contrary to instructions given or exceeded their
authority.
The Court finds that it cannot uphold the contention of the DRC that Uganda violated the
principle of the DRC’s sovereignty over its natural resources. While recognizing the importance of
this principle, the Court does not believe that it is applicable to the specif ic situation of looting,
pillage and exploitation of certain natural resour ces by members of the army of a State militarily
intervening in another State.
As the Court has already stated, the acts a nd omissions of members of Uganda’s military
forces in the DRC engage Uganda’s international responsibility in all circumstances, whether it was
an occupying Power in particular regions or not . Thus, whenever members of the UPDF were
involved in the looting, plundering and exploitation of natural resources in the territory of the DRC,
they acted in violation of the jus in bello, which prohibits the commission of such acts by a foreign
army in the territory where it is present. The Cour t notes in this regard that both Article 47 of the
Hague Regulations of 1907 and Article33 of the Fourth Geneva Convention of 1949 prohibit
pillage.
The Court further observes that both the DRC and Uganda are parties to the African Charter
on Human and Peoples’ Rights of 27 June 1981, paragraph 2 of Article 21 of which states that “[i]n
case of spoliation the dispossessed people shall have the right to the lawful recovery of its property
as well as to an adequate compensation”.
The Court finds that there is sufficient evidence to support the DRC’s claim that Uganda
violated its duty of vigilance by not taking adequate measures to ensure that its military forces did
not engage in the looting, plundering and exploitation of the DRC’s natural resources. It follows
that by this failure to act Uganda violated its international obligations, thereby incurring its
international responsibility. In any event, whatev er measures had been taken by its authorities,
Uganda’s responsibility was noneth eless engaged by the fact that the unlawful acts had been
committed by members of its armed forces.
As for the claim that Uganda also failed to prevent the looting, plundering and illegal
exploitation of the DRC’s natural resources by rebel groups, the Court has already found that the
latter were not under the control of Uganda. T hus, with regard to the illegal activities of such
groups outside of Ituri, it cannot conclude that Uganda was in breach of its duty of vigilance.
The Court further observes that the fact th at Uganda was the occupying Power in Ituri
district extends Uganda’s obligation to take appropriate measures to prevent the looting, plundering
and exploitation of natural resources in the occu pied territory to cover private persons in this
district and not only members of Ugandan military forces.
The Court finally concludes that it is in possession of sufficient credible evidence to find that
Uganda is internationally responsible for acts of looting, plundering and exploitation of the DRC’s
natural resources committed by members of the UPDF in the territory of the DRC, for violating its
obligation of vigilance in regard to these acts an d for failing to comply with its obligations under
Article 43 of the Hague Regulations of 1907 as an occupying Power in Ituri in respect of all acts of
looting, plundering and exploitation of natural resources in the occupied territory. - 13 -
The DRC’s fourth submission (paras. 251-261)
⎯ Legal consequences of violations of international obligations by Uganda
The DRC requests the Court to adjudge and declare that Uganda shall cease forthwith all
continuing internationally wrongful acts.
The Court observes that there is no evidence in the case file which can corroborate the
DRC’s allegation that at present Uganda supports irregular forces operating in the DRC and
continues to be involved in the exploitation of Congolese natural resources. The Court thus does
not find it established that Uganda, following the wi thdrawal of its troops from the territory of the
DRC in June2003, continues to commit the internationally wrongful acts specified by the DRC.
The Court accordingly concludes that the DRC’s request cannot be upheld.
The DRC further requests the Court to rule that Uganda provide specific guarantees and
assurances of non-repetition of the wrongful acts complained of. In this respect the Court has taken
judicial notice of the Tripartite Agreement on Regi onal Security in the Great Lakes, signed on
26 October 2004 by the DRC, Rwanda and Uganda. In the Preamble of this Agreement the Parties
emphasize “the need to ensure that the principles of good neighbourliness, respect for the
sovereignty, territorial integrity, and non-interferen ce in the internal affairs of sovereign states are
respected, particularly in the region”. In th e Court’s view, the commitments assumed by Uganda
under the Tripartite Agreement must be regarded as meeting the DRC’s request for specific
guarantees and assurances of non-repetition. The Court expects and demands that the Parties will
respect and adhere to their obligations under that Agreement and under general international law.
Finally, the DRC asks the Court to adjudge and declare that Uganda is under an obligation to
make reparation to the DRC for all injury caused by the violation by Uganda of its obligations
under international law. The Court observes that it is well established in general international law
that a State which bears responsibility for an internationally wrongful act is under an obligation to
make full reparation for the injury caused by that ac t. Upon examination of the case file, given the
character of the internationally wrongful acts for which Uganda has been found responsible, the
Court considers that those acts resulted in injury to the DRC and to persons on its territory. Having
satisfied itself that this injury was caused to the DRC by Uganda, the Court finds that Uganda has
an obligation to make reparation accordingly.
The Court further considers appropriate the request of the DRC for the nature, form and
amount of the reparation due to it to be determ ined by the Court, failing agreement between the
Parties, in a subsequent phase of the proceedings.
The DRC’s fifth submission (paras. 262-265)
⎯ Compliance with the Court’s Order on provisional measures
The Court then examines the question whethe r Uganda has complied with the Order of the
Court on provisional measures of 1July2000. Having observed that its “orders on provisional
measures under Article 41 [of the Statute] have binding effect”, the Court states that the DRC did
not put forward any specific evidence demonstrating that after July 2000 Uganda committed acts in
violation of each of the three provisional measur es indicated by the Court. The Court however
observes that in its Judgment it has found that Uganda is responsible for acts in violation of
international humanitarian law and international hu man right law. The evidence shows that such
violations were committed throughout the period when Ugandan troops were present in the DRC,
including the period from 1 July 2000 until practically their final withdrawal on 2 June 2003. The
Court thus concludes that Uganda did not comply with the Order. - 14 -
The Court further notes that the provisional me asures indicated in the Order of 1July 2000
were addressed to both Parties. The Court’s finding is without prejudice to the question as to
whether the DRC also failed to comply with the provisional measures indicated by the Court.
Counter-Claims (paras. 266-344)
⎯ Admissibility of objections (paras. 266-275)
The DRC maintains that the joinder of Ugan da’s first and second counter-claims to the
proceedings following the Order of 29November2001, by which the Court found that those two
counter-claims were admissible as such, does not imply that preliminary objections cannot be
raised against them. Uganda asserts for its part th at the DRC is no longer entitled at this stage of
the proceedings to plead the inadmissibility of the counter-claims, since the Court’s Order is a
definitive determination on counter-claims under Article 80 of the Rules of Court.
The Court notes that in the Oil Platforms case it was called upon to resolve the same issue
and that it concluded that Iran was entitled to challenge the admissibility of the United States
counter-claim in general, even though the counter-claim had previously been found admissible
under Article80 of the Rules. The Court also points out that Article79 of the Rules of Court
invoked by Uganda is inapplicable to the case of an objection to counter-claims which have been
joined to the original proceedings. It according ly finds that the DRC is entitled to challenge the
admissibility of Uganda’s counter-claims.
⎯ First counter-claim (paras. 276-305)
In its first counter-claim, Uganda contends that, since 1994, it has been the victim of military
operations and other destabilizing activities carried out by hostile armed groups based in the DRC
and either supported or tolerated by successive Congolese governments.
In rebutting Uganda’s first counter-claim, th e DRC divides it into three periods of time:
(a)the period prior to PresidentLaurent-Désiré Kabila coming to power in May 1997; (b) the
period starting from the accession to power of PresidentKabila until 2August1998, the date on
which Uganda’s military attack was launched; and (c) the period subsequent to 2 August 1998. It
submits that, in so far as the alleged claim that the DRC was involved in armed attacks against
Uganda covers the first period, it is inadmissible on the basis that Uganda renounced its right to
invoke the international responsibility of the DRC (Z aire at the time) in respect of acts dating back
to that period; and, in the alternative, groundless. It further asserts that the claim has no basis in
fact for the second period and that it is not founded in fact or in law regarding the third period.
The Court does not see any obstacle to exam ining Uganda’s first counter-claim following
these three periods of time, and for practical purposes deems it useful to do so.
With respect to the question of admissibility of the first part of the counter-claim, the Court
observes that nothing in the conduct of Uganda in the period after May 1997 can be considered as
implying an unequivocal waiver of its right to bring a counter-claim re lating to events which
occurred during the Mobutu régime. It adds that the long period of time between the events during
the Mobutu régime and the filing of Uganda’s counter-claims has not rendered inadmissible
Uganda’s first counter-claim for the period prior to May1997. The DRC’s objection to
admissibility cannot therefore be upheld.
With respect to the merits of the counter-claim for the first period, the Court finds that
Uganda has not produced sufficient evidence to sh ow that Zaire provided political and military
support to anti-Ugandan rebel groups operating in its territory during the Mobutu régime. - 15 -
With regard to the second period, the Court finds that Uganda has failed to provide
conclusive evidence of actual support for anti-Ugan dan rebel groups by the DRC. The Court notes
that during this period, the DRC was in fact actin g together with Uganda against the rebels, not in
support of them.
In relation to the third period, and in view of the Court’s finding that Uganda engaged in an
illegal military operation against the DRC, the Court considers that any military action taken by the
DRC against Uganda during this period could not be deemed wrongful since it would be justified
as action taken in self-defence under Article51 of the United Na tions Charter. Moreover, the
Court has already found that the alleged partic ipation of DRC regular troops in attacks by
anti-Ugandan rebels against the UPDF and the alleged support to anti-Ugandan insurgents in this
period cannot be considered proven.
The first counter-claim thus fails in its entirety.
⎯ Second counter-claim (paras. 306-344)
In its second counter-claim, Uganda contends that Congolese armed forces attacked the
premises of the Ugandan Embassy, confiscated pr operty belonging to the Government of Uganda,
Ugandan diplomats and Ugandan nationals; and maltreated diplomats and other Ugandan nationals
present on the premises of the mission and at Ndjili International Airport.
rebntting Uganda’s second counter-claim, the DRC ar gues that it is partially inadmissible
on the ground that Uganda has ascribed new legal bases in its Rejoinder to the DRC’s
responsibility by including claims based on the violation of the Vienna Convention on Diplomatic
Relations. According to the DRC, Uganda thus breaks the connection with the principal claim.
The DRC also asserts that the alleged modification of the subject-matter of this part of the dispute
is manifestly incompatible with the Court’s Order of 29 November 2001.
The DRC further argues that the claim based on the inhumane treatment of Ugandan
nationals cannot be admitted, because the require ments for admissibility of a diplomatic protection
claim are not satisfied.
As to the merits of the second counter-claim, the DRC argues that in any event Uganda has
been unable to establish the factual and legal bases of its claims.
With respect to the question of admissibility, the Court finds that its Order of
29 November 2001 did not preclude Uganda from invoking the Vienna Convention on Diplomatic
Relations, since the formulation of the Order was sufficiently broad to encompass claims based on
the Convention. It further observes that the substance of the part of the counter-claim relating to
acts of maltreatment against other persons on the premises of the Embassy falls within the ambit of
Article 22 of the Convention and is admissible. It however states that the other part relating to the
maltreatment of persons not enjoying diplomatic status at Ndjili International Airport as they
attempted to leave the country is based on dipl omatic protection and that, in the absence of
evidence with respect to the Ug andan nationality of the persons in question, that part of the
counter-claim is inadmissible.
Regarding the merits of Uganda’s second counter-claim, the Court finds that there is
sufficient evidence to prove the attacks agains t the Embassy and acts of maltreatment against
Ugandan diplomats on Embassy premises and at Ndjili International Airport. It finds that, by
committing those acts, the DRC breached its obligations under Articles22 and 29 of the Vienna
Convention on Diplomatic Relations. The Cour t further finds that the removal of property and
archives from the Ugandan Embassy was in vi olation of the rules of international law on
diplomatic relations. - 16 -
The Court points out that it would only be at a subsequent phase, failing an agreement
between the Parties, that the specific circumstances of these violations as well as the precise
damage suffered by Uganda and the extent of the reparation to which it is entitled would have to be
demonstrated.
Operative paragraph (para. 345)
The full text of the operative paragraph reads as follows:
“For these reasons,
T HE COURT ,
(1) By sixteen votes to one,
Finds that the Republic of Uganda, by engaging in military activities against the
Democratic Republic of the Congo on the la tter’s territory, by occupying Ituri and by
actively extending military, logistic, economic and financial support to irregular forces
having operated on the territory of the DRC, vi olated the principle of non-use of force
in international relations and the principle of non-intervention;
IN FAVOUR : President Shi; Vice-President Ranjeva; Judges Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham;
Judge ad hoc Verhoeven;
AGAINST : Judgead hoc Kateka;
U(na)nimously,
Finds admissible the claim submitted by the Democratic Republic of the Congo
relating to alleged violations by the Repu blic of Uganda of its obligations under
international human rights law and internat ional humanitarian law in the course of
hostilities between Ugandan and Rwandan military forces in Kisangani;
(3) By sixteen votes to one,
Finds that the Republic of Uganda, by the conduct of its armed forces, which
committed acts of killing, torture and other forms of inhumane treatment of the
Congolese civilian population, destroyed v illages and civilian buildings, failed to
distinguish between civilian and military ta rgets and to protect the civilian population
in fighting with other combatants, trained child soldiers, incited ethnic conflict and
failed to take measures to put an end to such conflict; as well as by its failure, as an
occupying Power, to take measures to respect and ensure respect for human rights and
international humanitarian law in Ituri district, violated its obligations under
international human rights law and international humanitarian law;
IN FAVOUR : President Shi; Vice-President Ranjeva; Judges Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham;
Judge ad hoc Verhoeven;
AGAINST : Judgead hoc Kateka; - 17 -
(4) By sixteen votes to one,
Finds that the Republic of Uganda, by acts of looting, plundering and
exploitation of Congolese natural resources committed by members of the Ugandan
armed forces in the territory of the Democratic Republic of the Congo and by its
failure to comply with its obligations as an occupying Power in Ituri district to prevent
acts of looting, plundering and exploitation of Congolese natural resources, violated
obligations owed to the Democratic Republic of the Congo under international law;
IN FAVOUR : President Shi; Vice-President Ranjeva; Judges Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham;
Judge ad hoc Verhoeven;
AGAINST : Judgead hoc Kateka;
U(na)nimously,
Finds that the Republic of Uganda is unde r obligation to make reparation to the
Democratic Republic of the Congo for the injury caused;
U(na)nimously,
Decides that, failing agreement between the Parties, the question of reparation
due to the Democratic Republic of the C ongo shall be settled by the Court, and
reserves for this purpose the subsequent procedure in the case;
(7) By fifteen votes to two,
Finds that the Republic of Uganda did not comply with the Order of the Court
on provisional measures of 1 July 2000;
IN FAVOUR : President Shi; Vice-President Ranjeva; Judges Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Rezek, Al-Khasawneh, Buergenthal,
Elaraby, Owada, Simma,Tomka, Abraham; Judgead hoc Verhoeven;
AGAINST : JudgeKooijmans; Judgead hoc Kateka;
U(na)nimously,
Rejects the objections of the Democratic Republic of the Congo to the
admissibility of the first counter-claim submitted by the Republic of Uganda;
(9) By fourteen votes to three,
Finds that the first counter-claim submitted by the Republic of Uganda cannot
be upheld;
IN FAVOUR : President Shi; Vice-President Ranjeva; Judges Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Rezek, Al-Khasawneh, Buergenthal,
Elaraby, Owada, Simma, Abraham; Judgead hoc Verhoeven;
AGAINST : JudgesKooijmans, Tomka; Judgead hoc Kateka; - 18 -
U(na)nimously,
Rejects the objection of the Democratic Republic of the Congo to the
admissibility of the part of the second counter-claim submitted by the Republic of
Uganda relating to the breach of the Vienna Convention on Diplomatic Relations of
1961;
(11) By sixteen votes to one,
Upholds the objection of the Democratic Republic of the Congo to the
admissibility of the part of the second counter-claim submitted by the Republic of
Uganda relating to the maltreatment of individuals other than Ugandan diplomats at
Ndjili International Airport on 20 August 1998;
IN FAVOUR : President Shi; Vice-President Ranjeva; Judges Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham;
Judge ad hoc Verhoeven;
AGAINST : Judgead hoc Kateka;
U(na)nimously,
Finds that the Democratic Republic of the Congo, by the conduct of its armed
forces, which attacked the Ugandan Em bassy in Kinshasa, maltreated Ugandan
diplomats and other individuals on the Embassy premises, maltreated Ugandan
diplomats at Ndjili International Airport, as well as by its failure to provide the
Ugandan Embassy and Ugandan diplomats with effective protection and by its failure
to prevent archives and Ugandan property fr om being seized from the premises of the
Ugandan Embassy, violated obligations owed to the Republic of Uganda under the
Vienna Convention on Diplomatic Relations of 1961;
U(na)nimously,
Finds that the Democratic Republic of the Congo is under obligation to make
reparation to the Republic of Uganda for the injury caused;
U(na)nimously,
Decides that, failing agreement between the Parties, the question of reparation
due to the Republic of Uganda shall be settled by the Court, and reserves for this
purpose the subsequent procedure in the case.”
*
JKdge OROMA appends a declaration to the Judgment of the Court;
Judges PARRA -A RANGUREN , KOOIJMANS , ELARABY and S IMMA append separate opinions to the
Judgment of the Court; JudgeT OMKA and Judgeadhoc V ERHOEVEN append declarations to the
Judgment of the Court; Judge ad hoc ATEKA appends a dissenting opinion to the Judgment of the
Court.
___________ Annex to Summary 2005/3
Declaration of Judge Koroma
In his declaration appended to the Judgment, Judge Koroma emphasizes that the
circumstances and consequences of the case involvi ng loss of millions of lives and other suffering
have made it one of the most tragic and compelling to come before the Court.
Judge Koroma outlines the Court’s findings confirming that Uganda has been in violation of
a wide range of legal instruments to which it is a party and, according to the evidence before the
Court, the violations gave rise to the most egregious of consequences. He stresses the importance
of these obligations with specific reference to Ar ticles 1 and 2 of the Fourth Geneva Convention
relative to the Protection of Civilian Persons in Time of War of 12 August 1949; Article 51 of
Protocol I Additional to the Geneva Conventions of 12 August 1949; and Articles 3, 19, and 38 of
the Convention on the Rights of the Child of 28 November 1989.
Judge Koroma emphasizes that, crucially and for very cogent reasons, the Court has rejected
Uganda’s contention that it acted in self-defence in using military force in the Congo. Specifically,
he observes the Court rightly rejected Uganda’s claim that actions of the ADF were attributable to
the Congo in the sense of Article 3, paragraph (g), of the Definition of Aggression of 1974 (XXIX).
Judge Koroma notes that such a finding of the Court is consistent with its past jurisprudence and is
a correct interpretation of Article 51 of the United Nations Charter.
Judge Koroma notes that the Court acknowledged the customary law character of General
Assembly resolution 1803 (XVII) of 14 December 1962, on permanent sovereignty over natural
resources, noting also that both Congo and Uganda are parties to the African Charter on Human
and Peoples’ Rights of 1981, which contains a provision on permanent sovereignty over natural
resources in Article 21, paragraph 1.
Judge Koroma comments that the findings of the Court, a judicial organ, are in the main in
accordance with determinations made by the Security Council in its resolutions on this dispute.
Judge Koroma concludes that, above all, Uganda should have respected the fundamental and
customary principle of international law, the principle of pacta sunt servanda ⎯ requiring a State to
comply with its obligations under a treaty. Observ ance of treaty obligations serves an important
role in maintaining peace and security between neighbouring States, and observance of the
principle of pacta sunt servanda would have prevented the tragedy so vividly put before the Court.
Separate opinion of Judge Parra-Aranguren
His vote in favour of the Judgment does not mean that Judge Parra-Aranguren agrees with all
the findings of its operative part nor that he co ncurs with each and every part of the reasoning
followed by the majority of the Court in reaching its conclusions.
I
In paragraph 345 (1) of the operative part of the Judgment the Court
“Finds that the Republic of Uganda, by engaging in military activities against
the Democratic Republic of the Congo . . . violated the principle of non-use of force in
international relations and the principle of non-intervention.” - 2 -
JudgeParra-Aranguren agrees that the Republic of Uganda (hereinafter referred to as
“Uganda”) violated the principle of non-use of force in international relations by engaging in
military activities against the Democratic Republic of the Congo (hereinafter referred to as the
“DRC”) between 7 and 8August1998 and 10July1999, for the reasons explained in the
Judgment; but he does not agree with the finding that the violation continued from 10July1999
until 2June2003, when Ugandan tr oops withdrew from the DRC territory, because in his opinion
the DRC consented during this period to their presence in its territory under the terms and
conditions prescribed in the Lusaka Ceasefire Agreement of 10July1999, the Kampala
Disengagement Plan of 8 April 2000, the Harare Disengagement Plan of 6 December 2000 and the
Luanda Agreement of 6 September 2002, as amended in the DaresSalaam Agreement of
10 February 2003.
The majority of the Court understands that the Lusaka Ceasefire Agreement did not change
the legal status of the presence of Uganda, i.e., in violation of international law, but at the same
time it considers that Uganda was under an obli gation to respect the timetable agreed upon, as
revised in the Kampala Disengagement Plan of 8 April2000, the Harare Disengagement Plan of
6December2000 and the Luanda Agreement of 6September2002 (paragraphs 95, 97, 99, 101,
and 104 of the Judgment).
In the opinion of JudgeParra-Aranguren th is interpretation of the Lusaka Ceasefire
Agreement, the Kampala Disengagement Plan, th e Harare Disengagement Plan and the Luanda
Agreement creates an impossible legal situation for Uganda. On the one hand, if Uganda complied
with its treaty obligations and remained in the territory of the DRC until the expiration of the
timetables agreed upon, Uganda would be in violat ion of international law because the legal status
of its presence had not b een changed, the status of its military forces in the DRC remaining a
violation of international law. On the other hand , if Uganda chose not to violate international law
as a consequence of its military presence in the DRC, and therefore withdrew its troops from the
territory of the DRC otherwise than in accordance with the timetables agreed upon, Uganda would
have violated its treaty obligations, thereby also being in violation of international law.
This reasoning is persuasive enough, in the opinion of JudgeParra-Aranguren not to accept
the very peculiar interpretation advanced in the J udgment of the Lusaka Ceasefire Agreement, the
Kampala Disengagement Plan, the Harare Disengagement Plan and the Luanda Agreement.
Moreover, an examination of the terms of these instruments leads to the conclusion that the DRC
consented, not retroactively but for the time they were in force, to the presence of Uganda’s
military forces in the territory of the DRC, as it is explained in detail in pa ragraphs 10 to 20 of his
separate opinion.
II
In paragraph 345 (1) of the operative part of the Judgment the Court
“Finds that the Republic of Uganda . . . by actively extending military, logistic,
economic and financial support to irregular forces having operated on the territory of
the DRC, violated the principle of non-use of force in international relations and the
principle of non-intervention.”
In this respect JudgeParra-Aranguren observes that the Lusaka Ceasefire Agreement
stipulated the importance of the solution of the internal conflict in the Congo by inter-Congolese
dialogue. The Government of the DRC, the Rally for the Congolese Democracy(RCD), the
Movement for the Liberation of the Congo (MLC), the political opposition, the civil society, the
Congolese Rally for Democracy/Movement of Liberation (RCD-NL), the Congolese Rally for
Democratic/National (RDC/N) and the Mai Mai d ecided, on 16December2002 in Pretoria, to put
in place a government of national unity, aiming at national reconciliation. A calendar was set forth - 3 -
but it was not complied with, political reconc iliation only being implemented through the
installation of a new national government, including leaders of the three armed rebel organizations
and Congolese society; the military forces of these three rebel groups were fully integrated into the
national army and democratic elections were to be held within two years.
JudgeParra-Aranguren accepts the principles of international law enunciated in General
Assembly resolution 2625 (XXV) (24 October 1970) mentioned in paragraph 162 of the Judgment,
but in his view they do not apply to the present case. As a consequence of the dialogue among the
parties, a new national government was installed on 1July2003 in the DRC with participation of
the leaders of the rebel forces, which were integrat ed into the Congolese army; this reconciliation,
in the opinion of JudgeParra-Aranguren, exonera tes Uganda from any possible international
responsibility arising out of the assistance it gave in the past to the RCD and to the MLC.
A similar situation took place in the Congo not very long ago, when in May 1997 the
Alliance of Democratic Forces for the Libera tion of the Congo (AFGL), with the support
of Uganda and Rwanda, overthrew the legal Head of State of the former Zaire,
MarshaM l obutuseseeko, taking control of the country under the direction of
Laurent-DésiréKabila. JudgeParra-Aranguren wonders whether Uganda would have been
condemned for this assistance had the Court been requested by the DRC to make such a declaration
after Laurent-Désiré Kabila legally assumed the Presidency of the country.
III
In paragraph 345 (1) of the operative part of the Judgment the Court
“Finds that the Republic of Uganda . . . by occupying Ituri . . . violated the
principle of non-use of force in intern ational relations and the principle of
non-intervention.”
The majority of the Court maintains that cu stomary international law is reflected in the
Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague
Convention of 18October1907 (hereinafter “the Hague Regulations of 1907”) (Judgment,
paragraph172). In the opinion of JudgeParra- Aranguren this statement is noteworthy because
occupying Powers have not always complied with the Hague Regulations of 1907.
The Court examines whether the requirements of Article42 of “the Hague Regulations of
1907” are met in the present case, stressing that it must satisfy itself that Ugandan armed forces in
the DRC were not only stationed in particular locations but that they had substituted their own
authority for that of the Congolese Government (Judgment, paragraph 173).
Paragraph 175 of the Judgment states:
“It is not disputed between the Parties that GeneralKazini, commander of the
Ugandan forces in the DRC, created the new ‘province of Kibali-Ituri’ in June 1999
and appointed MsAdèle Lotsove as its Governor. Various sources of evidence attest
to this fact, in particular a letter from Ge neral Kazini dated 18 June 1999, in which he
appoints MsAdèle Lotsove as ‘provisional Governor’ and gives suggestions with
regard to questions of administration of the new province. This is also supported by
material from the Porter Commission. The Court further notes that the Sixth report of
the Secretary-General on MONUC (S/2001/ 128 of 12February2001) states that,
according to MONUC military observers, the UPDF was in effective control in Bunia
(capital of Ituri district).” - 4 -
These facts are not disputed by Uganda and the majority of the Court concludes from them
that the conduct of General Kazini “is clear evidence of the fact that Uganda established and
exercised authority in Ituri as an occupying Power” (Judgment, paragraph 176).
In the opinion of JudgeParra-Aranguren this co nclusion is not acceptable. It is true that
General Kazini, Commander of the Ugandan forces in the DRC, appointed MsAdèleLotsove as
“provisional Governor” in charge of the newly created province of Kibali-Ituri in June 1999, giving
her suggestions with regard to the administration of the province. However, this fact does not
prove that either General Kazini or the appointed Governor were in a position to exercise, and in
fact did exercise, actual authority in the whole provi nce of Kibali-Ituri. It is also true that the
UPDF was in control in Bunia (capital of Kibali-Ituri district), but control over Bunia does not
imply effective control over the whole province of Kibali-Ituri, just as control over the capital of
the DRC (Kinshasa) by the Government does not inevitably mean that it actually controls the
whole territory of the country. Therefore, J udgeParra-Aranguren considers that the elements
advanced in the Judgment do not prove that Uga nda established and exercised actual authority in
the whole province of Kibali-Ituri.
In addition, JudgeParra-Aranguren observes that the DRC’s Application instituting
proceedings against Rwanda, filed in the Regist ry on 28May2002, which is a document in the
public domain, states in paragraph5 of the sect ion entitled Statement of Facts, under the heading
“Armed Aggression”:
“5. Since 2August1995, Rwandan troops have occupied a significant part of
the eastern Democratic Republic of the Congo, notably in the provinces of Nord-Kivu,
Sud-Kivu, Katanga, Kasai Oriental, Kasai Occidental, and Maniema and in Orientale
Province, committing atrocities of all kinds there with total impunity.” (Armed
Activities on the Territory of the Congo (New Application: 2002), I. Statement of
Facts; A. Armed Aggression, p. 7.)
Consequently, in this statement “against inte rest” the DRC maintains that Rwanda occupied
Orientale province from 1995 until the end of May 2002, the date of its New Application to the
Court, and Orientale province included the territori es of what was to become Kibali-Ituri province
in 1999. Therefore, the DRC considered Rwanda as the occupying Power of those territories,
including the territories of Kibali-Ituri, and gave no indication in its Application that the occupation
by Rwanda came to an end after the creation of Kibali-Ituri province.
Moreover, Judge Parra-Aranguren considers that the Special Report on the events in Ituri,
January2002 to December2003, prepared by the United Nations Organization Mission in the
Democratic Republic of the Congo (MONUC), and distributed on 16July2004 does not support
the conclusion that Uganda’s authority was actually exercised in the whole territory of Kibali-Ituri
province, as would be required by the 1907 Hague Regulations in order for Uganda to be
considered its occupying Power. On the contrary, it acknowledges that Rwanda as well as many
rebel groups played an important role in the trag edy experienced in Kibali-Ituri province, as it is
explained in paragraphs 36 to 41 of his separate opinion.
The above considerations demonstrate in the opinion of Judge Parra-Aranguren that Uganda
was not an occupying Power of the whole of Kibali-I turi province but of some parts of it and at
different times, as Uganda itself acknowledges. Th erefore, he considers that it is for the DRC in
the second phase of the present proceedings to demonstrate in respect of each one of the illegal acts
violating human rights and humanitarian law, and each one of the illegal acts of looting, plundering
and exploitation of Congolese natural resources it complains of, that it was committed by Uganda
or in an area under Uganda’s occupation at the time. - 5 -
IV
As indicated above, the majority of the Court concluded that Uganda was an occupying
Power of Kibali-Ituri province and that for this reason it
“was under an obligation, according to Artic le43 of the Hague Regulations of 1907,
to take all the measures in its power to restore, and ensure, as far as possible, public
order and safety in the occupied area, while respecting, unless absolutely prevented,
the laws in force in the DRC. This obligation comprised the duty to secure respect for
the applicable rules of international human rights law and international humanitarian
law, to protect the inhabitants of the occupi ed territory against acts of violence, and
not to tolerate such violence by any third party.” (Judgment, paragraph 178.)
Article 43 of the Hague Regulations of 1907 states:
“When the legally constituted authority has actually passed into the hands of the
occupant, the latter shall take all measures within his power to restore and, as far as
possible, to insure public order and life, respecting the laws in force in the country
unless absolutely prevented.”
Consequently, application of Article43 is conditional on the fact that “legally constituted
authority actually passed into the hands of the occupant”. It is not clear to Judge Parra-Aranguren
how the majority of the Court came to the conclu sion that this requirement was met, because no
explanation in this respect is given in the Judgment.
Moreover, the obligation imposed upon the occupying Power by Article43 is not an
obligation of result. An occupying Power is not in violation of Article43 for failing to restore
public order and life in the occupied territory, since it is only under the obligation to “take all
measures within his power to restore and, as far as possible, to insure public order and life”.
Judge Parra-Aranguren considers it an open question whether the nature of this obligation has been
duly taken into account in the Judgment.
Furthermore, when dealing with the occupation of the province of Kibali-Ituri by Uganda,
the majority of the Court rarely takes into account the province’s geographical characteristics in
order to determine whether Uganda complied with its obligation of due diligence under Article 43
of the Hague Regulations of 1907; but they were considered to exonerate the DRC for its failure to
prevent cross-border actions of anti-Ugandan rebel forces, as may be observed in the examination
of Uganda’s first counter-claim.
V
In the opinion of Judge Parra-Aranguren it is fi nally to be observed that rebel groups existed
in the province of Kibali-Ituri before May1997, when MarshalMobutu Ssese Seko governed the
former Zaire; they continued to exist after Pres ident Laurent-Désiré Kabila came to power and for
this reason the DRC expressly consented to the pr esence of Ugandan troops in its territory. The
Court itself acknowledges the inability of the DRC to control events along its border (Judgment,
paragraph 135). Rebel groups were also present during Uganda’s military actions in the region and
continue to be present even after the withdrawal of Ugandan troops from the territory of the DRC
on 2June2003, notwithstanding the intensive efforts of the Government of the DRC, with strong
help from the United Nations Organization Mission in the Democratic Republic of the Congo
(MONUC), employing more that 15,000 soldiers, as is a matter of public knowledge. - 6 -
Separate opinion of Judge Kooijmans
Judge Kooijmans first expresses his regret ab out the fact that in his view the Court has
insufficiently taken into consideration the general context of the dispute between the Parties and the
deeply rooted instability of the region which has prompted Uganda and other countries to military
actions. As a result, the Judgment can be said to lack the balance which is needed for a genuine
settlement of the dispute.
Judge Kooijmans is further of the view that th e Court should have taken account of the fact
that the armed actions, carried out by the Ug andan rebel movements from Congolese territory
during June and July 1998 were, because of their sc ale and effects, equivalent to an armed attack
had they been carried out by regular armed forces. The fact that these armed actions cannot be
attributed to the DRC, since no involvement on its part has been proved, does not mean that
Uganda was not entitled to act in self-defence; Article 51 of the Charter does not make the right of
self-defence conditional on an armed attack by a State. In the present case, however, Uganda did
not meet the standard of necessity and propor tionality from 1September1998 onwards and thus
violated the principle of the non-use of force.
Judge Kooijmans is also of the view that the Court unnecessarily narrowed the criteria for
applicability of the law of belligerent occupati on by ascertaining whether the Ugandan armed
forces were not only stationed in particular locations but also had actually substituted their own
authority for that of the Congolese Government. On this, basis the Court concluded that this was
the case only in Ituri district and not in the other invaded areas.
According to Judge Kooijmans it would have been preferable to determine that, as a result of
the seizure by Ugandan armed forces of the airp orts and military bases in a large area, the DRC
Government was rendered incapable of exercising its authority. As long as Uganda effectively
controlled these locations, which the DRC Government would have needed to re-establish its
authority over the Congolese rebel movements, it must be considered as the occupying Power in all
areas where its troops were present.
This situation changed when, as a result of the Lusaka Ceasefire Agreement, these rebel
movements were upgraded to the status of formal participants in the rebuilding of the Congolese
State. In view of their position in the invaded areas, Uganda can no longer be said to have replaced
the territorial government since they had become participants in that government. Uganda retained
the status of occupying Power only in Ituri district where it was in full and effective control.
Judge Kooijmans also disagrees with the Cour t’s finding in the operative part that by
occupying Ituri district, Uganda has violated the principle of the non-use of force. In his view it is
Uganda’s armed action which constitutes an unlawfu l use of force, whereas the occupation as the
outcome of that unlawful act should merely be considered in the light of the ius in bello . By
including occupation in the concept of the unlawful use of force, the Court may have contributed to
the reluctance of States to apply the law of belligerent occupation when that is called for.
Judge Kooijmans has voted agai nst the Court’s ruling that Uganda did not comply with its
Order on provisional measures of 1 July 2000. In his view, this ruling is not appropriate since the
DRC has not provided specific evidence in this re spect. Moreover, the Order was addressed to
both Parties and the Court itself has expressed it s awareness that massive violations of human
rights have been committed byall parties in the conflict.
Judge Kooijmans has also voted ag ainst the paragraph in the dispositif in which the Court
finds that Uganda’s first counter-claim cannot be up held. He is of the opinion that it was not only
for Uganda to prove that, during the period 1994 to 1997, the Government of Zaire was supporting - 7 -
the Ugandan rebel movements, but also for the DRC to provide evidence that it respected its duty
of vigilance. Since the DRC failed to do so, the pa rt of the counter-claim dealing with this period
should not have been dismissed.
Separate opinion of Judge Elaraby
Judge Elaraby expresses his full support for the Judgment’s findings. His separate opinion
elaborates upon the Court’s finding relating to the use of force in order to explicitly address the
Democratic Republic of the Cong o’s claim that certain activities of Uganda in the instant case
amount to a violation of the prohibition of aggression under international law.
Judge Elaraby underlines the central place of this argument in the Democratic Republic of
the Congo’s pleadings before the Court. While he concurs with the Court’s finding of a violation
of the prohibition of the use of force, he argues th at, in view of its gravity, the Court should have
examined whether there had furthermore been a violation of the prohibition of aggression in the
present case.
Judge Elaraby provides a brief historical background to General Assembly
resolution 3314 (XXIX) and points out that the Court has authority to find that aggression has been
committed. He cites the Court’s dicta in the Nicaragua case acknowledging the status of this
resolution as customary international law and, st ressing the importance of consistency within the
Court’s jurisprudence, concludes that the Court should have found that the unlawful use of force by
Uganda amounts to aggression.
Separate opinion of Judge Simma
In his separate opinion, Judge Simma emphasizes that he is in general agreement with what
the Court has said in its Judgment, but expresses concerns about three issues on which the Court
decided to say nothing.
First, Judge Simma associates himself with the criticism expressed in the separate opinion of
JudgeElaraby that the Court should have acknow ledged that Uganda has committed an act of
aggression. He notes that if there ever was a military activity before the Court that deserves to be
qualified as an act of aggression, it is the Ugandan invasion of the DRC. Compared to its scale and
impact, the military adventures the Court had to de al with in earlier cases, as in Corfu Channel ,
Nicaragua, or Oil Platforms, border on the insignificant.
In this regard, Judge Simma emphasizes that although the United Nations Security Council
has stopped short of expressly qualifying the Ugandan invasion as an act of aggression, it had its
own ⎯ political ⎯ reasons to refrain from such a determination. The Court, as the principal
judicial organ of the United Nations, has as its very raisond’être to arrive at decisions based on
law, keeping the political context of the cases befo re it in mind, of course , but not desisting from
stating what is manifest out of regard for such non-legal considerations.
Second, Judge Simma notes that the Court has le ft unanswered the question whether, even if
not attributable to the DRC, cross-boundary m ilitary activities of anti-Ugandan rebel groups could
have been repelled by Uganda, provided that the rebel attacks were of a scale sufficient to reach the
threshold of an “armed attack” within the meaning of Article 51 of the United Nations Charter.
In this regard, Judge Simma agrees with the argument presented in the separate opinion of
Judge Kooijmans to the effect that the Court should have taken the opportunity offered by this case
to clarify the state of the law on this highly controversial matter, an issue left open by its Nicaragua
Judgment of two decades ago. He believes that if armed attacks ar e carried out by irregular bands - 8 -
against a neighbouring State, these activities are still armed attacks even if they cannot be attributed
to the territorial State, and they give rise to the ri ght of self-defence within the same limits as in a
State-to-State case.
Third, Judge Simma stresses that although he believes the Court correctly concluded that
Uganda could not raise a claim of diplomatic prot ection regarding acts of maltreatment inflicted on
private persons by Congolese soldiers at Ndjili In ternational Airport in Ki nshasa in August 1998,
international human rights and international humanitarian law are applicable to the situation.
Judge Simma considers that an unequivocal confirmation by the Court that these persons remained
protected under those branches of international law would have been important in the face of
current attempts to create legal voids in which human beings may disappear for indefinite periods
of time.
Judge Simma argues that the key issue in fi nding whether interna tional humanitarian law
should apply also in areas of the territory of a belligerent State generally unaffected by actual
armed conflict is whether those areas are somehow connected to the conflict. In the present case,
such a connection exists. It exists as a matter of fact because the individuals maltreated at Ndjili
International Airport found themselves in a situation of evacuation from armed conflict. It exists as
a matter of law because the Court had already determined, in its Order under Article80 of
29 November 2001, that the events at the airport formed part of the “same factual complex” as the
armed conflict which constitutes the basis of the main claim. Judge Simma also makes reference to
decisions of the ICTY holding that international hu manitarian law applies in the entire territory of
the belligerent States, whether or not actual combat takes place there.
Discussing the substantive rules of internatio nal humanitarian law app licable to the persons
in question, Judge Simma concludes that although they may not qualify as “protected persons”
under Article 4 of the Fourth Geneva Convention, th ey are, at a minimum, protected by Article 75
of the Protocol I Additional to the Geneva Conventions. He emphasizes that there is therefore no
legal void in international humanitarian law.
Applying international human rights law to the individuals maltreated by the DRC at Ndjili
International Airport, Judge Simma notes that the conduct of the DRC violated provisions of the
International Covenant on Civil and Political Rights of 19 December 1966, the African Charter on
Human and Peoples’ Rights of 27 June 1981, and the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment of 10December1984, to all of which both the
DRC and Uganda are parties.
Judge Simma then discusses the issue of stan ding to raise violations of international
humanitarian and human rights law in the case of persons who may not have the nationality of the
claimant State. As to international human itarian law, he concludes, based on the Wall Opinion of
the Court and the ICRC Commentary to common Article1 of the Geneva Conventions, that
regardless of whether the maltreated indivi duals were Ugandans, Uganda had the right ⎯ indeed
the duty ⎯ to raise the violations of international humanitarian law committed against the persons
as part of its duty to “ensure respect” for interna tional humanitarian law. As to human rights law,
he concludes based on Article 48 of the Intern ational Law Commission’s 2001 draft Articles on
Responsibility of States for Internationally Wrongful Acts that Uganda would have had standing to
raise violations of relevant human rights treaties.
Judge Simma concludes with a general observation on the community interest underlying
international humanitarian and human rights law, emphasizing that at least the core of the
obligations deriving from those bodies of law are valid erga omnes. - 9 -
Declaration by Judge Tomka
Judge Tomka, who voted in favour of all para graphs of the operative part of the Judgment,
with the exception of one, explains why, in his view, the Court could have upheld the
counter-claim of Uganda on the a lleged toleration of the DRC’s (the n Zaire’s) authorities of rebel
group attacks from its territory against Uganda in the 1994-May 1997 period.
He expresses the opinion that the duty of vigilance required that Zaire exert good efforts to
prevent its territory from being used against Ugan da. Zaire knew of the existence of such rebel
anti-Ugandan groups operating in its territory and causing harm to Uganda and its population. In
his view, the DRC had to demonstrate to the Court that Zaire’s Government exerted all good efforts
to prevent its territory from being misused for launc hing attacks against Uganda. No such credible
information on any bona fide efforts had been submitted to the Court. He cannot concur with the
view of the majority that the absence of actions by Zaire’s Government against rebel groups in the
border area is not tantamount to tolerating or acquiescing in their activities.
Further in his declaration, Judge Tomka expresses his view that Uganda remains under
obligation to prosecute those who have comm itted grave breaches under the Fourth Geneva
Convention of 1949 and the Additional Protocol I of 1977.
Finally, he briefly touches upon the order in which the Court consider ed in this case the
issues of self-defence and of the prohibition of the use of force.
Declaration of Judge Verhoeven
In his declaration, Judge Ver hoeven reflects upon the conditions under which, and the limits
within which, the Court can find a State’s conduct wrongful without ruling on the ensuing
consequences under international law. In the present case, it is easily understandable that, in light
of the circumstances, the decision on reparation should be deferred to a subsequent stage of the
proceedings if the Parties are unable to agree on this po int. That is true at least for the main claim;
doubt however arises as to this outcome in respect of the second counter-claim given the absence of
elements which could objectively justify postponing the decision. The other points of the dispositif
concerning the consequences of what the Court has found to be violations by the Respondent may
moreover raise some question from this point of view, even though the Court did not expressly rule
in this regard.
Judge Verhoeven then points out that the obligation to respect and ensure respect for human
rights and international humanitarian law, referred to in point 4 of the dispositif, cannot be confined
solely to the case of occupation in the sense of the jus in bello ; it applies generally to all armed
forces in foreign territory, particularly when thei r presence there follows from a violation of the
jus ad bellum. The obligation to make repa ration deriving from this violation extends moreover to
all the prejudicial consequences of the violation, even those resulting fro m conduct or acts which
are in themselves in accordance with the jus in bello.
Dissenting opinion of Judge Kateka
In his dissenting opinion, Judge Kateka cannot agree with the Court’s findings that Uganda
violated the principles of non-use of force in inte rnational relations and of non-intervention; that
the Respondent violated its obligations under international human rights law and international
humanitarian law; and that the Respondent violat ed obligations owed to the Democratic Republic
of the Congo under international law by acts of unlawful exploitation of the latter’s natural
resources. - 10 -
Judge Kateka expresses the view that the Court should have reviewed its dictum in the
1986 Nicaragua case concerning insurgent activities and wh at amounts to an “armed attack”. As
insurgent activities are at the centre of the present case, it would have helped to clarify the law in
this regard.
In his opinion, Judge Kateka argues that Uganda’s armed forces were in the Democratic
Republic of the Congo, at different times, with the consent of the Applicant as well as in the
exercise of the right of self-defence. Allege d violations of human rights and international
humanitarian law, in the view of Judge Kateka, were not proven by the Applicant which is not
innocent in this connection. Judge Kateka is of the view that a finding on violation of provisional
measures is unnecessary.
___________
Summary of the Judgment of 19 December 2005