INTERNATIONCOURTOFJUSTICE
CASECONCERNINAGRMED
ACTIVITIES
ONTHETERRITORY
OFTHECONGO
DEMOCR TICREPUBLIOFTHECONGO
v.
UGANDA
UGANDA'OBSERVATIONOSNTHEDRC'SRESPONSESOJUDGESQ' UESTIONS
13MAY20051. Uganda's Observations on the DRC's Response to the Question of Judge Vereshchetin
1. Uganda recognises that it is for the DRC to identify what she considers to be
the time period covered by each ofher claims against Uganda However, there are two
aspects of the DRC's 6 May 2005 response to Judge Vereshchetin's question that cali for
comment by Uganda. First, Uganda will comment on the DRC's allegation that Uganda's so
called aggression against the DRC continued past 2 June 2003, the undisputed date of the
final withdrawal ofUgandan military forces from Congolese territory. Second, Uganda will
comment on the DRC's allegation that, until 2 June 2003, Ugandan military forces
"occupied" parts of the DRC.
2. With regard to the first issue, Uganda simply wishes to note that the DRC has
never presented the Court with any evidence that Uganda's agents or representatives,
including her military forces, committed any wrongs against the DRC after Ugandan troops
were fully and finally withdrawn from Congolese territory on 2 June 2003. To be sure, at the
oral hearings, the DRC's Agent and other Congolese spokespersons accused Uganda of
interference in the DRC's internai affairs, but they never supplied any supporting evidence,
and Uganda denies having committed any wrongful acts against the DRC after 2 June 2003,
just as she denies having wronged the DRC prior thereto.
3. With regard to the second issue, the DRC persists in arguing that Uganda
"occupied" Congolese territory continuously from August 1998 through June 2003, and
consequently that Uganda bears responsibility for certain alleged wrongs committed by
Ugandan military forces and by others, including Congolese rebel organisations, during that
period. Uganda wishes to point out, below, that the claim of"occupation" is mistaken both in
fact and in law.
4. Uganda has shown in her written pleadings, at the oral hearings, and most
recently in her 6 May 2005 response to the question put by Judge Kooijmans, that her
military forces in the Congo between August 1998 and June 2003 were limited in number and
confined to a few strategie locations. (Rejoinder, paras. 193-203; CR 2005114 pp. 45-47,
paras. 27-33; 6 May 2005 Response to Judge Kooijmans.) Further, Uganda has shown that
her military forces in the DRC did not exercise administrative control even in the specifie
locations where they were present. (Rejoinder, paras. 201-03; CR 2005114pp. 45-47, paras.
27-33.) Administrative control was always exercised by the Congolese rebel organisation
that was the dominant power in the particular region of the Congo: in Equateur and western
Orientale Provinces, the MLC; and in eastern Orientale Province and the northem part of
North Kivu Province, the RCD-K (also known as the RCD-ML). After the signing ofthe
Lusaka Agreement in July 1999, the MLC's and the RCD-K's exercise of administrative
authority in these areas of the DRC were fully legitimised by the parties to that Agreement,
including the DRC government.
5. Beyond the fact that Ugandan forces did not exercise or assume responsibility
for civil administration, they were never capable of controlling the vast expanse of DRC
territory claimed by the Congo's advocates, given the low number oftroops and the relatively
few locations (principally airports and airfields) where they were based. In effect, the DRC
claims that Ugandan "occupation" of the entire northern and eastern portions of the Congo
was accomplished by the mere presence of Ugandan troops in sorne ofthe locations in these
regions. But military "presence" and "control" are very different things. Congolese history
proves the point. During the regime of President Mobutu in what was then Zaïre, it is
uncontested that at least six anti-Uganda armed bands maintained a conspicuous military
- 1-presence in eastern Congo. However, no party, including the DRC, argues that these armed
bands exercised control over Congolese territory. Similarly, Uganda's troops were present in
eastern Congo with consent during the Presidency of Laurent Kabila (at !east until August
1998). Again, no party, including the DRC, argues that the UPDF controlled any parts of
these areas of Congo during that period. Thus, one cannot conclude, without more, that
Uganda's military presence after August 1998 made her an occupying force. The DRC still
has to show actual "control," which it has not and cannot. The evidence included in or
attached to the written pleadings (or referred to in the DRC's 6 May 2005 responses to the
three Judges' questions) does not support such a claim.
6. The DRC tries to buttress her claim about a Ugandan "occupation" by arguing
thatUganda controlled the MLC, and thus that the latter was an instrument ofUganda. This
claim is untrue and unproven. The mere fact oflimited, tactical cooperation, which Uganda
has always acknowledged, is insufficient to show that the MLC was an agent ofUganda,
especially with regard to the MLC's exercise of local administrative authority- pursuant to
express authorisation by the parties to the Lusaka Agreement - in the areas of the Congo
where it was the dominant power. (CR/8, pp. 30-31, paras. 38-39.) The DRC's argument
about an indirect Ugandan occupation through the "illegitimate" instrumentality of the MLC
is also out of place, not only in view of the status conferred on the MLC by the Lusaka
Agreement, but also because of the "new political dispensation" agreed to via the "inter
Congolese dialogue" that made the MLC a co-equal member of the Transitional Government
ofNational Unity in the DRC, with one of four Vice Presidencies, 94 of500 members of the
National Assembly, 22 of 120 Senatorial seats, and severa}major ministerial posts, including
foreign affairs.(See Global and Ail-Inclusive Power Sharing Agreement (submitted to the
Court on 16 Oct. 2003).)
7. Finally, Uganda notes that the DRC argues that the alleged Ugandan
"occupation" only ended on 2 June 2003, the date the last Ugandan soldier was withdrawn
from the Congo. Until that date, the DRC claims, the entire north and east of Congo was
under Ugandan "occupation." Yet, it is uncontested that, between 1 January 2003 and 2 June
2003, Ugandan forces were present in the DRC only in and around Bunia, in the Ituri region
of eastern Congo, close to the Ugandan border. The DRC does not explain how Uganda
could have occupied ali of northern and eastern Congo when her forces were confined to the
Bunia area. Nor does the DRC explain how Uganda could have occupied ali ofnorthern and
eastern Congo after 6 September 2002, the date of the Luanda Agreement, when Ugandan
forces were expressly recognised as being only in Gbadolite, Beni and Bunia. In Uganda's 6
May 2005 response to Judge Kooijmans' question, she provided the precise locations ofher
military forces in the DRC on each of nine critical dates, between 1 August 1998 and 2 June
2003, based on the evidence presented to the Court. The DRC's response to Judge
Vereschetin's question (as weil as her response to Judge Kooijman's question, as shown
below) ignores this evidence, and simply presumes that ifUgandan soldiers were anywhere in
northern and eastern Congo, then they were everywhere, and ali of northern and eastern
Congo was "occupied" for the entire five-year period. This claim is plainly unsupportable.
The DRC's advocates cannot arbitrarily extend Uganda's "presence" beyond where the
evidence establishes it to have been; and they cannot, in the absence of evidence, arbitrarily
convert mere "presence" into the very different concept of"occupation."
-2-ll. Uganda's Observations on the DRC's Resoonse to the Question of Judge Kooiimans
8. The concept of a Ugandan "occupation" of Congo also figures prominently in
the DRC's 6 May 2005 response to Judge Kooijmans' question. Rather than repeat the
comments made on the subject in paragraphs 3 through 7, above, Uganda simply incorporates
them by reference here.
9. Uganda further observes that the sequence of events set forth in the DRC's
response to Judge Kooijman's is rife with errors, and statements unsupported by any
evidence. The DRC is thus not correct when she states: "Le prise de ces localitésn'a pas été
contestéepar l'Ouganda." In the first instance, several ofthe places listed in the DRC's 6
May 2005 response were not seized or even traversed by Ugandan forces as part of
"Operation Safe Haven." For example, contrary to the DRC's assertion, Uganda was never
present in Kindu in Mainema Province, a fact confirmed by the Operation Safe Haven
document the DRC presented as evidence at the oral proceedings listing the villages, towns
and cities Ugandan forces captured or passed through on her way to other locales during the
course ofher military presence in the DRC. (DRC Judges' Folder, Tab 40.). 2
10. Other errors in the DRC's sequence of events are chronological. For example,
Ugandan forces arrived at Aketi on 6 October 1998, not 8 November; they came to Businga
on 20 December 1998, not early February 1999; and they entered Gemena on 25 December
1998, not 10 July 1999. (See DRC Judges' Folder, Tab 40.) Finally, the true circumstances
of the fighting after the Lusaka Agreement was signed in July 1999 must be noted. In each
case, the locality mentioned was controlled by the MLC on the date of the Lusaka
Agreement. In breach of its obligations under the Agreement, the FAC (the Congolese
Armed Forces) launched unprovoked offensives seeking to re-take positions previously won
by the MLC, so that the DRC government would be in control of them at the time of
agreement on disengagement of forces, which was then being negotiated. The MLC, with
sorne limited Ugandan assistance, repulsed those attacks and reassumed control over the
relevant towns. (CR 2005114,p. 47, para. 34; see also DRC BJm1y,Annex 29, paras. 22-23.)
Thus, the DRC is mistaken in alleging that Ugandan forces initiated offensives against
Zongo, Basankusu, Bomongo, Moboza, Dongo, Buburu, and Mobenzene after the date of the
Lusaka Agreement. (lndeed, as indicated below, there is no evidence that Ugandan forces
were ever in Mobenzene, Buburu, Bomongo, and Moboza at any time.)
Il. Uganda objects strongly to the DRC's attempt to rely, in her response to Judge
Kooijman's question, on the maps included in her Judges' Folders as if they were evidence in
this case. They are not. These maps - specifically those located at tabs 3 and 18, and cited in
the DRC's 6 May 2005 response to Judge Kooijmans' question- were not included in the
DRC's written pleadings; nor were they presented to the Court at any time prior to the
commencement of the oral proceedings. They are mere graphie aids, not evidence that is part
of the record ofthis case. Moreover, as Uganda pointed out during the oral proceedings, they
are plagued by numerous errors, and depict Ugandan forces as being in particular locations in
the DRC notwithstanding the fact that there is absolutely no credible evidence in or attached
to the written pleadings that would place them at such locations, including Mobenzene,
1 "Uganda bas not disputed the seizure ofthese towns."
2 ln be~ the DRC first devoted considerable energy in an attempt to establish UPDF participation in the
seizure ofKindu in October 1998(~paras. 2.49-2.53.) In her Rejoinder, Uganda showed that she did not.
(Rejoinder, paras. 145-151.)
-3-Buburu, Bomongo, and Moboza, among others. Uganda specifically objected to the DRC's
use ofthese particular maps at the oral proceedings. (CR 2005114, p. 47, para. 35.)
12. Uganda also takes exception to the DRC's misconstruction and misuse of the
Harare Disengagement Agreement and the map incorporated therein, when the DRC argues:
"Le plan de Harare, notamment, marque bien que l'UPDF et le MLC sont désignéscomme
occupants conjoints de la zone 1." This interpretation of the Harare Disengagement
Agreement is both novel and erroneous. Nowhere does the Harare Agreement use the words
"occupation" or "joint occupation" or infer that such a state of affairs existed. The
Agreement neither joined the UPDF and the MLC together, nor distinguished between them.
Its purpose was to separate the contending forces by having them retreat beyond certain
agreed disengagement lines. Thus, it was not necessary to distinguish between the MLC and
UPDF on the one hand, or between the FAC and its allies on the other. What was important
was to separate the MLC and UPDF from the FAC and its allies. This is what the Harare
Agreement accomplished. It is a gross distortion of the Agreement to claim, as the DRC's
advocates now attempt to do, that it somehow identified Ugandan forces as being present
throughout Area 1. In fact, as Uganda has repeatedly reiterated, the MLC troops far
outnumbered the UPDF forces, and covered the entire area. In contrast, Ugandan troops were
confined to the eastern border region of the DRC and to severa! strategie locations, especially
airports and airfields. (CR 2005/14, p. 46, para. 31.) As set forth in Uganda's written and
oral pleadings, and in her 6 May 2005 response to Judge Kooijmans' question, the locations
ofUganda's military forces in the DRC did not remain fixed throughout the entire period
from August 1998 to June 2003. Uganda's 6 May 2005 response identified the locations of
her military forces in the Congo as ofnine critical dates between 1 August 1998 and 2 June
2003, and depicted them on the nine maps attached to Uganda's response, which plainly
showed that Ugandan forces were insufficient both in number and location to have
"occupied" vast regions of the DRC.
3
"The Harare Plan, in particular, specifies that the UPDF and MLC are both occupiers of Area 1."
-4-III. Uganda's Observations on the DRC's Response to the Question of Judge Elaraby
13. In her response to Judge Elaraby's question concerning the Lusaka
Agreement, the DRC states: "La Républiquedémocratiquedu Congo a, depuis le débutde la
présenteprocédure,toujours interprétél'accord cessez le feu de Lusaka de la même
manière." But, as Uganda has demonstrated, the opposite is true. In reality, and especially
during the oral proceedings, Congo continually altered her argument in a vain effort to come
up with a colourable theory asto why the Lusaka Agreement did not authorise Uganda's
presence in the DRC after July 1999. (CR 2005/14, p. 41, para. 13.) Her response to Judge
Elaraby's question continues that strained effort to find a defensible position with respect to
that Agreement.
14. In her latest argument on this subject, the DRC states that the Lusaka
Agreement cannot be deemed a manifestation ofher consent to the presence ofUgandan
military forces in her territory because it was "obtenue sous la contrainte." 5 This is a
remarkable argument both because it is not only unsupported in the written record, but does
not even appear there! In neither the Memorial nor the Reply did the DRC even advert to
duress as an element vitiating its consent. (Memorial, paras. 5.76-5.87; Reply, paras. 3.211-
3.218.) Likewise, in her first round oral presentation on the subject of consent, the concept of
duress did not appear. (CR 2005/4.) Only in Professer Klein's second round speech was the
notion of duress invoked for the first time, and only then en passant. (CR 2005/14, p. 31,
para. 24.) lt cannot be a serious legal argument, not only because of the extreme lateness of
its appearance, but also because there is no factual basis- or evidence of any kind- inthe
written pleadings or the annexes thereto that would support it. The fact that it has now
become the centrepiece ofthe DRC's response to Judge Elaraby's question is, above ali, an
indication of the DRC's inability to devise an effective rebuttal to Uganda's thorough textual
and historical analysis of the Lusaka Agreement proving that it authorises Uganda's military
presence in the DRC from 10 July 1999 through 2 June 2003. (CR 2005/8, pp. 16-36;
2005/14, pp. 37-51.)
15. Uganda further observes that, in her response to Judge Elaraby's question, the
DRC once again invokes the Court's procedural ruling rejecting the admissibility of
Uganda's third counter-claim relating to the DRC's violations of the Lusaka Agreement. The
DRC claims that this ruling somehow precludes Uganda from relying on the Agreement as
part ofits substantive defence. Uganda has already addressed the shortcomings of this
argument and will not repeat here what she said previously. lnstead, Uganda respectfully
refers the Court to the Rejoinder (at Paragraphs 225-26) and to the verbatim record of the oral
proceedings (at CR 2005/14, p. 45, para. 26). By way ofunderscoring the point, however,
the difference between Uganda relying on the Lusaka Agreement as the source of an
affirmative claim and her relying on it as part of a defence to the DRC's claim must be
emphasised.
16. The Court will recall that it declined jurisdiction over Uganda's counter-claim
in part because the Parties were not pursuing the same legal aims. (Counter-claims Order,
para. 42.) While the DRC sought to hold Uganda accountable for the wrongful use of force
4
"Since the beginning ofthese proceedings, the Democratie Republic of Congo bas not changed its
interpretation of the Lusaka Cease-fire Agreement."
5
"obtained under duress"
-5-and for intervention in her internai affairs, Uganda sought to hold the DRC accountable for
specifie violations oftreaty-based obligations. (Ibid.) It is thus apparent why the Court
would find that these two claims were not directly connected within the meaning of Article
80. However, Uganda's invocation of the Lusaka Agreement as a defence to the DRC's
claims is an altogether different matter. The DRC claims that Uganda was unlawfully present
in the DRC until2 June 2003. Uganda claims that her presence was authorised, inter alia, by
the Lusaka Agreement, and therefore could not have been unlawful, at least between 10 July
1999 and 2 June 2003. The DRC's claim and Uganda's defence are directly connected, and
nothing in the Court's Order concerning the admissibility of Uganda's counter-claims affects
that. Indeed, Uganda notes that in Paragraph 46 of its Order, the Court specifically stated:
"Whereas a decision given on the admissibility of a counter-claim taking account ofthe
requirements of Article 80 of the Rules of Court in no wayprejudges any question with
which the Court would have to deal during the remainder of the proceedings."
17. Uganda notes, as weil, that the DRC once again invokes Security Council
Resolution 1234 for its proposition that the Lusaka Agreement draws a distinction between
"invited" and "uninvited" foreign forces, and thus presumably that the provisions thereof
should be interpreted differently with respect to each. This argument is untenable for at least
two dispositive reasons. One, the resolution is dated April 1999, three months prior to the
Lusaka Agreement. Itthus can shed little light on proper interpretation of the later
Agreement. Two, the plain terms of the Agreement make no distinction among the various
foreign forces present in the DRC. To the contrary, the Agreement is consistent in its
reference to "ail foreign forces." (See, e.g., Lusaka Agreement, Art. III, para. 12; AnnexA,
Chs. 4 & 11.) In fact, this is recognised in a series of Security Council resolutions that
postdate the Agreement, including Resolutions 1265, 1273, 1279, 1291, 1296, 1304, 1323,
and 1332. It is significant that the only Security Council resolution cited by the DRC is the
one that predates the Lusaka Agreement; ali of the rest are deliberately ignored. There is
plainly no basis for the DRC's suggestion that the Lusaka Agreement's authorisation for
foreign forces to remain in the DRC operated differently for Uganda than for any other
foreign forces.
18. Finally,Uganda observes that the DRC has never, in any ofher written or oral
pleadings (at least from the beginning of this case through 6 May 2005), attempted to refute
Uganda's argument that the parties to the Lusaka Agreement repeatedly extended, by mutual
agreement, the time period for the withdrawal of foreign military forces from Congolese
territory beyond the original period of 180 days projected in Annex B to the Agreement.
(Uganda's position, in this regard, is summarised in her 6 May 2005 response to Judge
Elaraby's question). Rather, the DRC has always adopted an "ali or nothing" approach to the
Lusaka Agreement; she has argued that there could not have been any extensions because
there was never agreement to allow "uninvited" foreign military forces to remain on
Congolese territory for any period oftime, not even 180 days. As Uganda has shown in her
written and oral pleadings, including her response to Judge Elaraby's question, the DRC's
argument is unsupported by the evidence in this case, including the plain meaning of the
Lusaka Agreement, and is completely unsustainable. Given that the Agreement plainly
authorises Ugandan troops to remain in Congolese territory, the DRC has no effective
response whatsoever to Uganda's demonstration that the time period was extended, by
mutual agreement ofthe parties, beyond 180 days until Ugandan forces were fully and finally
withdrawn from the DRC on 2 June 2003.
-6-
Comments of the Republic of Uganda on the replies given by 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