DEMOCRATie REPUBLIC OF THE CONGO
Replies to the questions put by Judges Vereshchetin, Kooijmans and Elaraby at the hearings
in the case concerning Armed Activities on the Territory of the Congo (Democratie Republic of
the Congo v. Uganda)
May 2005
1. Reply to the question of Judge Vereshchetin
1. At the hearing of 22 April2005, Judge Vereshchetin put the following question to the
Democratie Republic of the Congo: "What are the respective periods of time to which the concrete
submissions, found in the written pleadings of the Democratie Republic of the Congo, refer?"
(CR 2005111.)
2. At the hearing of 25 April 2005, the Co-Agent of the Democratie Republic of the Congo
gave the following reply: "The Congo's claim covers a period commencing at the start of
Uganda's aggression on 2 August 1998 and terminating with the present proceedings."
(CR 2005112, p. 12, para. 11 (Maître Kalala).) Already in its Memorial (MDRC, para. 0.16), the
Democratie Republic of the Congo had pointed out that the Court remained free to consider facts
that occurred after the Application had been filed, as it had made clear in the Military Activities
case:
"A further aspect of this case is that the conflict to which it relates has
continued and is continuing. It has therefore been necessary for the Court to decide,
for the purpose of its definition of the factual situation, what period of time, beginning
from the genesis of the dispute, should be taken into consideration. The Court holds
that general principles as to the judicial process require that the facts on which its
Judgment is based should be those occurring up to the close of the oral proceedings on
the merits of the case." (I.C.J. Reports 1986, p. 39, para. 58.)
We should like to enlarge on that reply by recapitulating the varions submissions set out in the
Congo's Reply.
3. The first submission set out by the Democratie Republic of the Congo in its Reply is as
follows:
"The Democratie Republic of the Congo, while reserving the right to
supplement or modify the present submissions and to provide the Court with fresh
evidence and pertinent new legal arguments in the context of the present dispute,
requests the Court to adjudge and declare:
1. That the Republic of Uganda, by engaging in military and paramilitary
activities against the Democratie Republic of the Congo, by occupying its territory and
by actively extending military, logistic, economie and financial support to irregular
forces operating there, has violated the following principles of conventional and
customary law:
the principle of non-use of force m international relations, including the
prohibition of aggression; - 2 -
the obligation to settle international disputes exclusively by peaceful means so as
to ensure that peace, international security and 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 economie system
freely and without outside interference;
the principle of non-interference in matters within the domestic jurisdiction of
States, which includes refraining from extending any assistance to the parties to a
civil war operating on the territory of another State." (RDRC, p. 398.)
Overall, this first submission covers the period beginning on 2 August 1998, the date on which,
with the support of the Republic of Uganda, war broke out in the Congo, and terminating with the
present proceedings, there still being a possibility of further military action or military and logistic
support to irregular forces.
4. It is clear, however, that the reference to occupation of territory in this first submission
covers a more limited period. The occupation of the Congo's territory began with Uganda's
invasion of eastern areas on 6 August 1998, when it set about taking the town of Beni, and was
then reflected, over the following days, weeks and months, in the advance of the UPDF into
Congolese territory. The occupation of the Congo's territory ended with the withdrawal of the
Ugandan army on 2 June 2003. Hence, ali of the claims relating to Uganda's status as occupant
cover the period from 6 August 1998 to 2 June 2003.
5. The second submission set out by the Democratie Republic of the Congo in its Reply is as
follows:
"The Democratie Republic of the Congo, while reserving the right to
supplement or modify the present submissions and to provide the Court with fresh
evidence and pertinent new legal arguments in the context of the present dispute,
requests the Court to adjudge and declare:
2. That the Republic of Uganda, by engaging in the illegal exploitation of
Congolese natural resources and by pillaging its assets and wealth, has violated the
following principles of conventional and customary 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 economie matters." (RDRC, p. 398.)
The comments on the first submission remain applicable, mutatis mutandis. The Congo's claim
covers the whole of the period from 2 August 1998 to the close of the present proceedings. In so
far as it is founded on the status of Uganda as occupying Power, the claim relates to the period
from 6 August 1998 to 2 June 2003. - 3 -
6. The third submission set out by the Democratie Republic of the Congo in its Reply is as
follows:
"The Democratie Republic of the Congo, while reserving the right to
supplement or modify the present submissions and to provide the Court with fresh
evidence and pertinent new legal arguments in the context of the present dispute,
requests the Court to adjudge and declare:
3. That the Republic of Uganda, by committing abuses against nationals of the
Democratie Republic of the Congo, by killing, injuring, and abducting those nationals
or robbing them of their property, has violated the following principles of
conventional and customary law:
the principle of conventional and customary law involving the obligation to
respect and ensure respect for fundamental human rights, including in times of
armed conflict;
the principle of conventional and customary law whereby it is necessary, at all
times, to make a distinction in an armed conflict between civilian and military
objectives;
the entitlement of Congolese nationals to enjoy the most basic rights, both civil
and political, as well as economie, social andcultural." (RDRC, pp. 398-399.)
The comments on the first submission remain applicable, mutatis mutandis. The Congo's claim
covers the whole of the period from 2 August 1998 to the close of the present proceedings. In so
far as it is founded on the status of Uganda as occupying Power, the claim relates to the period
from 6 August 1998 to 2 June 2003.
7. The fourth submission set out by the Democratie Republic of the Congo in its Reply is as
foliows:
"The Democratie Republic of the Congo, while reserving the right to
supplement or modify the present submissions and to provide the Court with fresh
evidence and pertinent new legal arguments in the context of the present dispute,
requests the Court to adjudge and declare:
4. That, in light of ali the violations set out above, the Republic of Uganda shali,
in accordance with customary international law:
cease forthwith ali continuing intemationaliy wrongful acts, and in particular its
occupation of Congolese territory, its support for irregular forces operating in the
Democratie Republic of the Congo, its unlawful detention of Congolese nationals
and its exploitation of Congolese wealth and natural resources;
make reparation for ali types of damage caused by ali types of wrongful act
attributable to it, no matter how remote the causal link between the acts and the
damage concemed; -4 -
accordingly, make reparation in kind where this is still physically possible, in
particular in regard to any Congolese resources, assets or wealth still in its
possesswn;
failing this, furnish a sum covering the whole of the damage suffered, including, in
particular, the examples set out in paragraph 6.65 of the Memorial of the
Democratie Republic of the Congo and restated in paragraph 1.58 of the present
Reply;
further, in any event, render satisfaction for the injuries inflicted upon the
Democratie Republic of the Congo, in the form of official apologies, the payment
of damages reflecting the gravity of the violations and the prosecution of all those
responsible;
provide specifie guarantees and assurances that it will never again in the future
perpetrate any of the above-mentioned violations against the Democratie Republic
of the Congo." (RDRC, p. 399.)
The comments on the first submission remain applicable, mutatis mutandis. The Congo's claim
covers the whole of the period from 2 August 1998 to the close of the present proceedings. In so
far as it is founded on the status of Uganda as occupying Power, the claim relates to the period
from 6 August 1998 to 2 June 2003. The first claim in the fourth submission, which refers to the
continuing occupation of the Democratie Republic of the Congo, has become moot since the latter
date.
8. Finally, the Democratie Republic of the Congo observes that the reply to
Judge Vereshchetin's question, which, formally, relates only to the written submissions, is also
applicable, mutatis mutandis, to the submissions presented by the Democratie Republic of the
Congo at the close of the oral proceedings (statement of submissions by the Agent of the
Democratie Republic of the Congo, Monday 25 April, CR 2005/13).
II. Reply to the question of Judge Kooijmans
9. At the hearing of 22 April2005, Judge Kooijmans put the following question to the
Parties:
"Can the Parties indicate which areas of the Provinces of Equateur, Orientale,
North-Kivu and South-Kivu were in the relevant periods intime under the control of
the UPDF and which under the control of the varions rebellions militias? It would be
appreciated if sketch-maps could be added." (CR 2005/11.)
10.At the hearing of 25 April, the Democratie Republic of the Congo gave the following
outline answer to Judge Kooijmans:
"The territories occupied by Uganda have varied in size as the conflict has
developed. During the phase when the UPDF troops were advancing, the area initially
covered Orientale Province and part of Nord-Kivu Province. In the course of 1999, it
increased to caver a major part of Equateur Province too. Uganda subsequently
maintained control of this area through the rebel troops operating under its authority,
even when it had withdrawn part of its army." (CR 2005/12, p. 52, para. 24 (Corten).)
The Democratie Republic of the Congo would now like to reply in further detail to
Judge Kooijmans' s question. - 5 -
11. First, the UPDF progressively secured control of ever greater areas of Congolese
territory. The size of those areas depended primarily on the capture of towns and cities, which
commenced in the east of the Congo on 6 August 1998. In this regard, we would recall the
following:
6 August 1998: capture of Beni and Butembo;
12 August 1998: capture of Watsa;
1 September 1998: capture of Kisangani;
20 September 1998: capture of Isiro;
3 October 1998: capture of Buta;
20 October 1998: capture of Kindu;
27 October 1998: capture of Dulia;
8 November 1998: capture of Aketi;
17 November 1998: capture of Bumba;
10 December 1998: capture of Isala;
5 January 1999: capture of Ango;
beginning of February 1999: capture of Businga;
June 1999: capture of Mobeka;
3 July 1999: capture of Gbadolite;
10 July 1999: capture of Gemena;
29 July 1999: capture of Zongo;
30 November 1999: capture of Bongandanga and Basankusu;
February 2000: capture of Bomongo, Moboza, Dongo;
April 2000: capture of Imese and Bururu;
June 2000: capture of Mobenzene.
12. The capture of these localities has not been disputed by Uganda. Their location was
shown by the Democratie Republic of the Congo on a map included in the judges' folder at tab 18.
In light of the respective dates of capture, the areas of occupation can be determined approximately
by drawing a line from north to south, following the progression of the front from east to west
between the months of August 1998 and June 2000.
13. The maximum extent of the occupation was indicated approximately by the Democratie
Republic of the Congo on another map, prepared on the basis of the above data and of a map
produced by IRIN. This map is to be found in the judges' folder at tab 3. Certain of the outer - 6 -
limits of that area were also indicated on the sketch-map appended to the Harare Disengagement
Agreement. That map can be found in the judges' folder at tab 41.
14. It should further be stated in regard to Judge Kooijmans's question, which refers to areas
under the control of the UPDF and others under the control of rebel militias, that no such
distinction can be drawn in regard to those rebel groups which were themselves under the control
of Uganda. The Democratie Republic of the Congo emphasized this point in its oral argument
(CR 2005/12, pp. 46-49, paras. 12-17). The Harare plan inter alia clearly indicates that the UPDF
and the MLC are designated as joint occupants of Zone 1. Given that it was indeed the UPDF
which controlled the MLC, not the reverse, it follows that the UPDF may be regarded as the army
occupying the whole of that zone.
15. Finally, it should be emphasized that Uganda continued to occupy ali of the maximum
area even as it gradually began withdrawing certain of its troops. For this partial withdrawal did
not affect Uganda's capacity, should the need arise, to despatch new troops into territories formally
relinquished for administration by rebel groups controlled by it, in particular the MLC. Thus, until
2 June 2003, date of the withdrawal of UPDF troops from the Congo, Uganda maintained its
occupation of all of the area indicated on the maps referred to above (tabs 3 and 41 in the judges'
folder).
III. Reply to the question of Judge Elaraby
16. At the hearing of 22 April 2005, Judge Elaraby put the following question to both
Parties:
"The Lusaka Agreement signed on 10 July 1999 which takes effect 24 hours
after the signature, provides that:
'The final orderly withdrawal of all foreign forces from the
national territory of the Democratie Republic of Congo shall be in
accordance with Annex "B" of this Agreement.' (Ann. 'A', Chap. 4,
para. 4.1.)
Sub-paragraph 17 of Annex 'B' provides that the 'Orderly Withdrawal of all
Foreign Forces' shall take place on 'D-Day + 180 days'.
Uganda asserts that the final withdrawal of its forces occurred on 2 June 2003.
The question is addressed to both Parties:
What are the views of the two Parties regarding the legal basis for the presence
of Ugandan forces in the Democratie Republic of the Congo in the period between the
date of the 'final orderly withdrawal', agreed to in the Lusaka Agreement, and
2 June 2003?" (CR 2005/11.)
17. At the hearing of 25 April2005, the Democratie Republic of the Congo gave the
following reply:
"the Lusaka Agreement does not entitle Ugandan troops in law to be present in
Congolese territory, even before the period of one hundred and eighty days initially
prescribed for the withdrawal of those troops has expired" (CR 2005112, p. 36,
para. 21 (Klein)). - 7 -
The Democratie Republic of the Congo further made it clear that this question concerned only "the
presence of Ugandan troops on Congolese territory", and was thus of a theoretical nature (see
CR 2005/12, pp. 32-33, paras. 16-17 (Klein)). Far from contenting themselves with simply being
present, the UPDF effectively continued to conduct combat operations and to commit atrocities and
acts of looting after the conclusion of the Lusaka Ceasefire Agreement. The Democratie Republic
of the Congo would now like to provide certain further clarification in answer to Judge Elaraby's
question.
18. Since the start of these proceedings the Democratie Republic of the Congo has always
interpreted the Lusaka Ceasefire Agreement in the same way (see CR 2000/24 of 28 June 2000
(Corten), MDRC, paras. 5.76-5.87, WODRC, paras. 60-68, RDRC, paras. 3.211-3.217, CR 2005/4
of 13 April2005, pp. 16-19, paras. 24-32 (Corten); CR 2005/12 of 25 April2005, pp. 36-41,
paras. 21-26 (Klein)). The Democratie Republic of the Congo considers that this agreement cannat
be interpreted as containing any consent, secured by force, on the part of an aggressed State to
having its territory occupied by an aggressor State in conformity with international law. This is a
ceasefire agreement, indicating the willingness of the parties to put an end to the conflict, without
settling the question of the legality of the despatch of foreign troops to the Congo and their
presence on its territory. Hence, in law the agreement cannat have the effect of transforming
uninvited forces into invited forces, and the Congo noted in this connection that the preamble to the
agreement contained an express reference to Security Council resolution 1234 (1999), which
distinguishes very clearly between these two types of forces. Said resolution 1234 was moreover
repeatedly cited in Security Council resolutions subsequent to the conclusion of the Lusaka
Ceasefire Agreement. The effect of the agreement is to prevent any of the parties from using force
against any others, irrespective of the situation of individual parties in terms of the general rules of
jus contra helium. Thus, even if the Congo was in law still in a situation of self-defence after
10 July 1999, it was not entitled to exercise that right by seeking to repel the armies of the
aggressor States by force.
19. This interpretation is also confirmed by the Order of 29 November 2001, in which the
Court unanimously rejected Uganda's counter-claim regarding the DRC's alleged violation of the
Lusaka Agreement (paras. 42-43). That claim was rejected in the absence of any connecting link
with the Congo's own claim. That decision by the Court clearly indicates an intention to
distinguish between, on the one hand, the issue of legality in relation to the outbreak and pursuit of
the conflict and, on the other, the modalities for the resolution of that conflict. It is the first element
which constitutes the subject-matter ofthe DRC's claim. By contrast, the second element does not
fall within the subject-matterof the dispute. Hence the question of who may have been responsible
for any violation of the Lusaka Agreement, whether of the provisions governing the timetable for
its implementation or of other provisions, cannat determine the manner in which the Court decides
this dispute.
20. Our reply to Judge Elaraby's question may thus be summarized as follows. Since their
presence resulted from an invasion contrary to the most peremptory norms of international law, the
troops of the UPDF cannat rely on any agreement to justify their having entered and then remained
in the Congo from the beginning of the month of August 1998 to 2 June 2003. There was thus no
legal basis capable of justifying their presence, whether on the expiry of, or even before, the period
of 180 days provided for by the Lusaka Agreement. The sole effect of that Agreement was to
suspend the Congo's power to exercise its right of self-defence by repelling the armies of the
occupying States by force.
Replies of the Democratic Republic of the Congo to the questions put by Members of the Court at the close of the first round of oral argument (translation)