Memorial of Uganda on the question of reparations

INTERNATIONAL COURT OF JUSTICE
_________________________________________________________________
CASE CONCERNING
ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO
DEMOCRATIC REPUBLIC OF THE CONGO
v.
UGANDA
MEMORIAL OF UGANDA ON REPARATION
VOLUME I
28 SEPTEMBER 2016

Table of Contents
Chapter 1 Introduction................................................................................... 1
I. The Structure of the Memorial...................................................... 4
II. The History of Negotiations.......................................................... 5
Chapter 2 Relevant Rules of International Law on Reparation................... 21
I. The Function and Scope of the Obligation to Make Full
Reparation................................................................................... 21
II. The Obligation to Give Satisfaction for the Injury Caused by a
Wrongful Act .............................................................................. 24
III. The Obligation to Pay Compensation for the Damage Caused
by an Internationally Wrongful Act............................................ 31
A. Compensation Is Limited to Damage Caused by
Specific Wrongful Acts................................................... 32
B. Compensation Covers Only Financially Assessable
Damage Insofar as It Is Established................................ 38
C. Compensation Must Be Proportionate............................ 42
D. Compensation Must Not Be Punitive ............................. 44
E. Compensation Must Not Exceed the Payment Capacity
of the Responsible State.................................................. 47
F. Compensation Does Not Cover Damages the Injured
State Could Have Avoided.............................................. 51
G. A State May Not Recover Full Compensation for
Damages to Which It Contributed .................................. 52
Chapter 3 Uganda’s Request for Reparation on its Counter-claims............ 55
I. The Court’s Findings with Respect to the DRC’s Wrongful
Acts ............................................................................................. 55
II. Loss, Damage or Injury to Ugandan Diplomats and Other
Persons Resulting from the DRC’s Wrongful Acts .................... 60
ii
III. Loss, Damage or Injury Relating to Uganda’s Diplomatic
Premises Resulting from the DRC’s Wrongful Acts .................. 63
IV. Loss of Property Wrongfully Seized from Uganda’s
Diplomatic Premises ................................................................... 68
Submissions ..................................................................................................... 71
1
CHAPTER 1
INTRODUCTION
1.1 At the request of the Democratic Republic of the Congo (the “DRC”), the
Court by Order dated 1 July 2015 resumed proceedings in this case on the issue
of reparation. In its Order, the Court set 6 January 2016 as the time-limit for the
simultaneous filing of Memorials by the DRC and the Republic of Uganda with
regard to the reparations each State considers are to be owed to it by the other.
1.2 At the request of the DRC, the original time limit was extended first to
28 April 2016 (by Order dated 10 December 2015) and later to 28 September
2016 (by Order dated 11 April 2016). Pursuant to the latter Order, Uganda
respectfully submits this Memorial on the nature and amount of reparations owed
to it by the DRC.
1.3 The Court will recall that the DRC originally instituted these proceedings
by Application filed with the Court on 23 June 1999. In its Application, the DRC
asserted a number of claims against Uganda relating to its alleged presence in and
activities on the territory of the DRC.
1.4 In its Counter-Memorial dated 21 April 2001, Uganda responded to the
DRC’s claims on the merits and included a number of counter-claims relating,
inter alia, to the DRC’s mistreatment of Ugandan nationals and diplomats, and
2
the breach of international obligations it owed with respect to Uganda’s
diplomatic mission in Kinshasa.
1.5 After written pleadings, the Court held oral hearings on the merits of the
DRC’s claims and Uganda’s counter-claims between 11 and 29 April 2005. The
Court thereafter issued its Judgment on the Merits on 19 December 2005 (the
“2005 Judgment”). In its 2005 Judgment, the Court determined that both Parties
were obligated to make reparation to each other for the injury caused by their
internationally wrongful acts.
1.6 Specifically, the Court found:
a. Uganda to be obligated to make reparation to the DRC for certain
violations of international law;1 and
b. the DRC to be obligated to make reparation to Uganda for the injury
caused by (1) the conduct of the DRC’s armed forces, which attacked
the Ugandan diplomatic premises in Kinshasa, maltreated Ugandan
diplomats and other individuals on the diplomatic premises, and
maltreated Ugandan diplomats at Ndjili International Airport; and (2)
the DRC’s failure to provide the Ugandan diplomatic premises and
Ugandan diplomats with effective protection, and its failure to prevent
1 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Judgment, I.C.J. Reports 2005 (hereinafter “Armed Activities (2005)”), paras. 345(1)-(5).
3
archives and Ugandan property from being seized from the diplomatic
premises.2
1.7 In its 2005 Judgment, the Court took note of the DRC’s stated “intention
to seek initially to resolve the issue of reparation by way of direct negotiations
with Uganda”.3 It therefore instructed “the Parties [to] seek in good faith an
agreed solution based on the findings of the present Judgment.”4 The Court
further stated that “failing agreement between the Parties, the question of
reparation due [by one party to another] shall be settled by the Court” and
reserved for this purpose the subsequent procedure in the case.5
1.8 In accordance with the Court’s direction, Uganda has sought in good faith
over a number of years to reach an agreed solution with the DRC based on the
Court’s 2005 Judgment and the rules of international law applicable to reparation.
1.9 Uganda is approaching the negotiations with openness and a desire to
promote peace, stability and friendly relations with its brothers and sisters in the
DRC. Unfortunately, no agreement has yet been reached. Even so, as explained in
paragraphs 1.48-1.51. Uganda considers that these negotiations on reparation
have not been exhausted.
2 Ibid., paras. 345(12)-(13).
3 Ibid., para. 261.
4 Ibid.
5 Ibid., paras. 345(6)-(14).
4
1.10 Uganda in no way impugns the good faith of the DRC. Nevertheless,
Uganda considered, as a matter of principle, that the DRC’s position throughout
the negotiations had no basis in law relating to questions of reparation on the
international plane. As a matter of practice, Uganda considered the specific
quantum sought by the DRC—more than US$ 23.5 billion—to be unfounded and
excessive in the extreme.
I. The Structure of the Memorial
1.11 Uganda’s Memorial consists of two volumes. Volume I contains the main
text of the Memorial. Volume II contains additional supporting material.
1.12 The main text of the Memorial consists of three chapters, followed by
Uganda’s Submissions. This Chapter 1 is an introduction, which sets out the
structure of the Memorial as well as information with respect to the Parties’ effort
to negotiate a settlement on the issue of reparations.
1.13 Chapter 2 sets out the rules of international law governing reparation for
wrongful acts. These rules apply equally to Uganda’s counter-claims and to the
claims of the DRC.
1.14 Chapter 3 presents the specifics of Uganda’s counter-claims. For the
reasons stated there, Uganda considers that satisfaction is the appropriate form of
reparation for: (a) the mistreatment of its diplomats and other nationals on the
5
premises of Uganda’s diplomatic mission in Kinshasa, and the mistreatment of its
diplomats at Ndjili Airport; (b) the damage done to the former official residence
of Uganda’s Ambassador to the DRC; and (c) the seizure of all movable property
located in and on Uganda’s diplomatic premises. In light of the evidentiary record
to be presented, Uganda also considers that compensation in the total amount of
US$ 987,797.73 is the appropriate form and quantum of reparation for the
damages done to its former Chancery building in Kinshasa.
1.15 This Memorial concludes with Uganda’s Submissions in respect of its
counter-claims.
II. The History of Negotiations
1.16 Recounting the full history of the Uganda-DRC negotiations is neither
necessary nor relevant to the present proceedings. Uganda will therefore bring the
Court’s attention to the most notable events of those negotiations.
1.17 On 8 September 2007, Uganda and the DRC concluded the Ngurdoto-
Tanzania Agreement on Bilateral Cooperation (the “Ngurdoto Agreement”), in
which the Parties underscored their “determin[ation] to promote social, cultural,
economic, and political cooperation in order to achieve peace, security and
prosperity” between the two States.
6
1.18 As part of that process, the Parties agreed in Article 8 of the Ngurdoto
Agreement to “constitute … an ad hoc committee to study the ICJ Judgment in
the Case concerning Armed Activities on the DRC Territory (DRC v. Uganda)
and recommend to the Joint Permanent Commission of Cooperation modalities of
implementing its orders on the question of Reparation.”6 (The Joint Permanent
Commission of Cooperation, or JPCC, was first created in 1986 but had been
inactive for 10 years prior to the Ngurdoto Agreement.7)
1.19 Uganda proceeded to constitute its own ad hoc committee promptly
following the Ngurdoto Agreement and sent a follow-up communication to the
DRC inquiring as to the status of the DRC’s committee. It received no response.
1.20 Subsequently, on 25 May 2010, the Parties convened a ministerial level
meeting in Kampala, Uganda, during which they formally constituted the joint ad
hoc committee, consisting of seven members from each side, envisioned in the
Ngurdoto Agreement.8 The Agreed Minutes of the meeting provide that:
a. “The Joint Team will adopt a Workplan, rules of procedure and
determine timeframes for completing work”; and
6 Ngurdoto-Tanzania Agreement between the Democratic Republic of the Congo and the Republic
of Uganda on Bilateral Cooperation (8 Sept. 2007) (hereinafter “Ngurdoto-Tanzania Agreement”),
Art. 8. Vol. II, Annex 1.
7 Ibid., Art. 6.
8 Government of Uganda and the Government of the Democratic Republic of Congo, Agreed
Minutes of the Ministerial Level Meeting between the Republic of Uganda and the Democratic
Republic of Congo (25 May 2010), p. 1. Vol. II, Annex 6.
7
b. “As per Article 8 of [the Ngurdoto Agreement] the Ad Hoc
committee shall report to the JPC; including modalities for
implementing the work plan”.9
1.21 Also at the 25 May 2010 meeting, the DRC for the first time submitted to
Uganda an evaluation of the damages it alleged it had suffered as a result of
Uganda’s internationally wrongful acts a decade earlier.10
1.22 Uganda considers that because it was submitted outside the litigation
process in the context of an attempt to settle the Parties’ dispute through
negotiations, the DRC’s 2010 evaluation of its alleged damages (like Uganda’s
response discussed below) is confidential. It would therefore be inappropriate to
annex it to this pleading or otherwise discuss the details of the DRC’s
presentation. Uganda notes only that other documents in the non-confidential
record of negotiations reflect that the quantum of compensation claimed by the
DRC (from which it never moved) was more than US$ 23.5 billion.11
1.23 Uganda responded to the DRC’s evaluation of its damages and presented
the details of its own reparation claim at a ministerial meeting held in
9 Ibid.
10 Ibid.
11 Government of Uganda and the Government of the Democratic Republic of Congo, The Joint
Report of the Meeting of Experts of the Democratic Republic of Congo and the Republic of
Uganda on the Implementation on the Judgment of the ICJ of 19th December 2005 (13-17 Mar.
2015), p. 12, Vol. II, Annex 10.
8
Johannesburg, South Africa, on 13-14 September 2012.12 Uganda, at the time,
proposed that the DRC pay it US$ 3.7 million as monetary compensation on its
counter-claims.13
1.24 At the opening session of the meeting “Hon. Sam K. Kutesa, Minister of
Foreign Affairs of Uganda thanked the Congolese delegation for accepting
Uganda's proposed date for the Joint Ad hoc Committee meeting”. 14 He also:
“took note of positive developments in Uganda and the
DRC bilateral relations. He also reiterated Uganda
Government's commitment to further strengthen bilateral
relations and to reach a fair and speedy settlement in the
matter between the two parties as per the ruling of the
International Court of Justice.” 15
1.25 For her part, “Her Excellency Mrs. Wivine Mumba Matipa, Minister of
Justice and Human Rights of DRC, expressed the gratitude of the Congolese
Government for the positive role played by Uganda in the stabilization of the
Great Lakes region.”16 In this respect, Uganda observes that it has consistently
endeavoured to be a positive force for the re-establishment of peace and security
12 Government of Uganda and the Government of the Democratic Republic of Congo, Minutes of
the Ministerial Meeting between the Republic of Uganda and the Democratic Republic of Congo
(13-14 Sept. 2012), p. 1. Vol. II, Annex 7.
13 Government of Uganda and the Government of the Democratic Republic of Congo, The Joint
Report of the Meeting of Experts of the Democratic Republic of Congo and the Republic of
Uganda on the Implementation on the Judgment of the ICJ of 19th December 2005 (13-17 Mar.
2015), p. 7, Vol. II, Annex 10.
14 Ibid., p. 2.
15 Ibid.
16 Ibid.
9
in the eastern DRC. Thus, for example, at the request of the DRC, Uganda helped
mediate the dispute between the DRC government and the M23 rebel group in
2012-2013.17 This resulted in the 12 December 2013 Nairobi accords ending the
last major military conflict in the DRC.
1.26 At the September 2012 Johannesburg meeting, DRC Minister Matipa also
“expressed the commitment of the DRC Government to resolve the dispute in
order to respond to the legitimate aspirations of our people in order to focus on
the matters of interest to both countries namely social and economic
development, peace and stability in the region.”18
1.27 With regards to the merits of the DRC’s claim as reflected in its 2010
evaluation of damages, the minutes state that:
17 See, “Ban Welcomes Signing of Declaration between DR Congo-M23”, United Nations News
Centre (13 Dec. 2013), p. 1 (The Press release notes that: “Talks between the M23 – mostly
composed of soldiers who mutinied from the DRC national army in April last year – and the
Government have been held in Kampala, Uganda, under the auspices of the Chairperson of the
International Conference for the Great Lakes Region (ICGLR), Ugandan President Yoweri
Museveni, the Mediator, as well as Ugandan Defence Minister and Facilitator, Crispus
Kiyonga.”). Vol. II, Annex 18; “Eighth Preliminary Meeting Between the DR Congo Government
and M23”, International Conference on the Great Lakes Region (11 Jan. 2013) (“Since the return
of the delegations to Kampala, the Facilitator has been consulting with the two teams with a view
to finding a way forward. Consequently, the plenary sessions have resumed. The Facilitator has
also been consulting with the leadership of the United Nations and USA with a view to ensuring
that the recent sanctions slammed on M23 do not create negative implications for the dialogue.
His understanding now is that these sanctions don’t affect the dialogue. The dialogue is being
facilitated by Dr. Crispus Kiyonga, Minister of Defence of the Republic of Uganda. The DRC
government delegation is led by H.E Raymond Tshibanda, Minister of Foreign Affairs,
International Cooperation and Francophonie of DRC. The delegation of M23 is led by Mr.
François Rucogoza, Executive Secretary of M23.”). Vol. II, Annex 33.
18 Government of Uganda and the Government of the Democratic Republic of Congo, Minutes of
the Ministerial Meeting between the Republic of Uganda and the Democratic Republic of Congo
(13-14 Sept. 2012), p. 2. Vol. II, Annex 7.
10
“1. Uganda, [i]n presenting the response to the DRC claim
for damages, highlighted that the DRC claim for damages
was excessive and exaggerated and does not observe the
parameters of the International Court of Justice.
2. Uganda therefore requested the DRC to review its claim
and present a more realistic figure that takes into account
the parameters set by the International Court of Justice to
determine reparations.” 19
1.28 With respect to Uganda’s claim for compensation, the DRC expressed the
view that “it is exaggerated, disproportionate and unfounded according to
relevant and credible proofs. The DRC has instead proposed to pay an amount of
USD 10,000 on the basis of the premises assessment report done by both parties
in 2002.”20
1.29 At the conclusion of the Johannesburg meeting, the two delegations
agreed that they would “work together to present respective proofs to support any
figures that will be ultimately agreed upon in respect of both claims in order to
reach a negotiated settlement of the dispute.” 21
1.30 Representatives of the two States met again between 10 and 14 December
2012 in Kinshasa to begin the process of exchanging evidence supporting their
respective claims. According to the minutes of that meeting, the DRC’s Vice
Minister of Foreign Affairs opened the first working session of the meeting with
19 Ibid.
20 Ibid.
21 Ibid.
11
remarks during which he “insisted on the fraternal and excellent relation[s] that
does not only exist between the Uganda[n] and Congolese people but also
between their Excellencies Presidents Yoweri K. Museveni and Joseph Kabila
Kabange.”22
1.31 During the meeting, the Parties exchanged documents relating to each
other’s claims but, given the quantity of information exchanged, agreed to meet
again at a later date to continue their discussions.23
1.32 Between 24 and 27 November 2014, the two Parties met again at the
ministerial level in Johannesburg. During this meeting, Uganda presented a
detailed assessment of what it considered to be the flaws in the materials the DRC
had made available to Uganda. Speaking on behalf of Uganda, Hon. Peter
Nyombi, the then-Attorney General, offered an assessment of the DRC’s
evidence based on the relevant rules of international law. Rather than burden the
Court with a recapitulation of Attorney General Nyombi’s presentation here,
Uganda invites the Court to review it at Annex 5 of this Memorial, should it be so
interested.24
22 Government of Uganda and the Government of the Democratic Republic of Congo, Minutes of
the 3rd Meeting of Ugandan and Congolese Experts on the Implementation of the Ruling of the
International Court of Justice of 19 December 2005 (14 Dec. 2012), p. 2. Vol. II, Annex 8.
23 Ibid.
12
1.33 In any event, Attorney General Nyombi concluded his remarks with the
following statement:
“the above evaluation of the evidence provided by the
DRC to support her claim should not in itself be the final
conclusion of the matter but rather the evlaution [sic]
should facilitate the arbitration and negotiation process
towards reaching a final and amicable solution through the
spirit of cooperation and brotherliness as was envisaged in
the bilateral cooperation framework handed over to us by
our two Presidents and expressed in the Ngurdoto
Agreement.”25
1.34 Because the Parties were unable to reconcile their positions at this
meeting, the Ministers “directed that the two positions be harmonized as soon as
possible. Thereafter the two parties shall meet before mid February 2015 in South
Africa to conclude the negotiations.”26
1.35 The meeting was delayed slightly to March 2015, when, between 13 and
17 March 2015, experts from both Parties met in advance of a ministerial meeting
that followed immediately thereafter. At the meeting, the DRC insisted on its
24 Government of Uganda, Response by Uganda on the Evaluation of the Evidence Submitted by
the Democratic Republic of Congo in Support of Her Claim Arising out of the ICJ Judgment of
December 2005 (24-29 Nov. 2014). Vol. II, Annex 5.
25 Ibid., p. 24.
26 Government of Uganda and the Government of the Democratic Republic of Congo, Agreed
Minutes of the 2nd Ministerial Meeting of the Ad Hoc Committee of Uganda/Democratic Republic
of Congo on the Implementation of the Ruling of the ICJ (2005)(24-27 Nov. 2014), p. 4. Vol. II,
Annex 9.
13
original position of claiming more than US$ 23.5 billion in compensation.27
1.36 At the DRC’s invitation, Uganda offered its observations on the
methodological and legal aspects of the DRC’s claim. Specifically:
a. Uganda reminded the DRC that “according to the ICJ 2005 judgment,
the DRC bears the evidentiary burden to prove the exact injury that it
suffered as a result of the specific actions of Uganda for which it is
responsible under international law.”28 Uganda considered this burden
not met in regard to the claimed amount.
b. Uganda pointed out that “while collecting data, the DRC did not
follow the internationally acceptable standards of collection of data
which include collection of primary evidential materials, verification,
analysis and evaluation. The DRC relied on figures proposed by the
claimants without any verification, analysis or evaluation.”29
27 Government of Uganda and the Government of the Democratic Republic of Congo, The Joint
Report of the Meeting of Experts of the Democratic Republic of Congo and the Republic of
Uganda on the Implementation on the Judgment of the ICJ of 19th December 2005 (13-17 Mar.
2015), p. 12, Vol. II, Annex 10.
28 Government of Uganda and the Government of the Democratic Republic of Congo, The Joint
Report of the Meeting of Experts of the Democratic Republic of Congo and the Republic of
Uganda on the Implementation on the Judgment of the ICJ of 19th December 2005 (13-17 Mar.
2015), p.6. Vol. II, Annex 10.
29 Ibid., p. 5.
14
c. Uganda observed that the DRC offered “no specific proof to support
the claims in three broad categories: macroeconomic damages,
material and non-pecuniary damages; material and non-pecuniary
damages suffered by the DRC; and material and non-pecuniary
damages suffered by natural/legal entities.”30
d. Uganda explained that “some of the claims contained in the DRC
Claim are outside the scope of the ICJ judgment in terms of time,
nature and geographical areas.”31
e. Uganda also explained that it could not compensate some losses either
because they were not verified (such as injury to wounded soldiers and
damage to the environment) or are not compensable under
international law (such as macro-economic damages, break-down of
civil order and economic chaos, loss on the treasury).32
1.37 Nevertheless, to demonstrate good faith and reach an amicable agreement,
Uganda proposed to pay the DRC US$ 25,500,000 in compensation based on
30 Ibid., p. 6.
31 Ibid., p. 5.
32 Ibid., pp. 12-13.
15
criteria it considered to be appropriately grounded in the relevant rules of
international law.33
1.38 The DRC offered no meaningful response to Uganda’s substantive
observations. It responded only that Uganda’s “technical” approach “led to a
bigger under estimation of the different damages inflicted to the Congolese
populations as a result of armed activities exercised on the DRC territory, valued
at less than 1% of the amount claimed.”34
1.39 There being no agreement between the experts, they decided to refer the
matter for further consideration to the ministerial level meeting which took place
between the 17 and 19 of March 2015.
1.40 According to the Agreed Minutes of the Meeting of Ministers, Uganda
took the view that “there [was] need for the parties to agree on the criteria which
should be used as a basis for compensation payable to the DRC”, and proposed
that “both states should conduct joint verification and analysis of the 7400
documents provided by the DRC based on the agreed criteria.”35
33 Ibid., p. 12.
34 Ibid., p. 8.
35 Government of Uganda and the Government of the Democratic Republic of Congo, The Agreed
Minutes of the 4th Meeting of Ministers of the Democratic Republic of Congo and the Republic of
Uganda on the Implementation of the Judgment of the ICJ of 19th December 2005 (17-19 Mar.
2015), p. 2. Vol. II, Annex 11.
16
1.41 According to the records of the meeting, Uganda proposed that the Parties
be guided by the following criteria:
“1. We propose that we be guided by the ICJ Judgment of 19th
December 2005; thus excluding claims outside the scope of the
Judgment. These include;
a) Rape
b) Claims arising in the period outside 8th August 1998 to
2nd June 2003.
c) Areas court said Uganda was not present; Zongo, Bomanga
and Bongadanga
2. Follow principles of international law and exclude the
following claims; Macro Economic damages, wounded
soldiers, loss to the treasury, breakdown of civil order and
economic chaos, disorganization of health and education
system, delay of the economic and social development plan
and other war related damages.
3. We propose that in arriving at a mutually acceptable
compensable amount for acts of killing and death, reliance
should be made on judicial precedents/authorities.
4. In the case of personal injury, the amount payable should
take into consideration the level of injury and disability.
5. In case of loss of property and other related claims, we
propose that upon proof, the assessment should be based on
equitable considerations and the fair market value of the
property destroyed at the time.
6. Loss of business and profits: we propose that claims in this
category should be based on the lost future profits of the
income generating activity, assets of the business, anticipated
profits and basic accounting principles.
7. Looting, plundering and exploitation of natural resources:
we propose to rely on the DRC’s submissions to the United
Nations Security Council, reports of UN Agencies and other
humanitarian organizations.
17
8. Violation of international Human Rights law and
international Humanitarian law in Ituri province as an
occupying power also referred to as moral prejudice: we
propose an ex gratia payment that is mutually acceptable to
both parties.
9. A joint verification and analysis of the 7400 documents
provided by the DRC should be carried to isolate credible
claims from unrealistic and exaggerated claims.
We believe that if the two parties can agree on specific criteria
on which to base the amount of compensation payable to the
DRC we shall be able to resolve the matter amicably.” 36
1.42 The Agreed Minutes further reflect that Uganda “in spirit of brotherhood
and good neighborliness and without prejudice” offered to “withdr[a]w its
counter claim in respect of the damage on its Embassy property in Kinshasa.”37 It
also offered to revise its previous offer of compensation upward to US$ 37
million38
1.43 In response, the DRC:
“(a) Object[ed] to using any criteria to assess her claim.”
…
“(c) … accept[ed] the withdrawal of Uganda’s counter’s
claim [sic] of USD 3,760,000, which the DRC had
admitted as due and owing but reject[ed] the offer by
Uganda of the USD 37,028,368 as being insignificant”
36 Ibid., p. 4.
37 Ibid., pp. 2-3.
38 Ibid., p. 3.
18
(d) … insist[ed] that since there is no agreement, the matter
should be referred to the ICJ.”39
1.44 Given the Parties’ diverging positions, the Agreed Minutes conclude:
“Since there is no consensus reached, the Parties resolved
that there should be no further negotiations at technical and
Ministerial level and that the matter should be referred to
the Heads of State within the framework of the Ngurdoto
Agreement on Bilateral Cooperation between Uganda and
the DRC of 2007 for further guidance.”40
1.45 Less than two months later, on 13 May 2015, the DRC submitted to the
Court a “New Application to the International Court of Justice”, in which it
requested the Court “to reopen the proceedings that it suspended in the case, in
order to determine the amount of reparation owed by Uganda to the Democratic
Republic of the Congo, on the basis of the evidence already transmitted to
Uganda and which will be made available to the Court.”41
1.46 The Court’s procedural Orders noted above in paragraphs 1.1-1.2
followed.
1.47 Uganda considers that negotiations on reparation have not yet been
exhausted. Indeed, the DRC itself has recently expressly so agreed.
39 Ibid., DRC’S Specific Responses to New Criteria Proposed by the Ugandan Side, pp. 1-2
(emphasis added).
40 Ibid., p. 3.
41 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Order No. 166 (1 July 2015), I.C.J., para. 6.
19
1.48 Specifically, at the conclusion of an Official Visit to Uganda by the
President of the DRC, H.E. Joseph Kabila Kabange, on 4 August 2016 the Parties
entered into a “Joint Communiqué Issued by the Democratic Republic of the
Congo and the Republic of Uganda Held on 4th August 2016, at Mweya Safari
Lodge, Kasese District, Uganda” (the “Joint Communiqué”).42 The Joint
Communiqué was signed by Uganda’s Minister of Foreign Affairs, Hon. Sam
Kutesa, and the DRC’s Senior Minister/Minister in Charge of Decentralisation
and Customary Affairs, Hon. Salomon Banamuhere.
1.49 Paragraph 4 of the Joint Communiqué provides:
“The two Heads of State held fruitful discussions on a
number of issues of common interest at bilateral, regional
and international level. They expressed satisfaction at the
cordial bilateral relations existing between the two
countries and reaffirmed their commitment to further
enhance these relations.”
1.50 In that context, paragraph 6(v) of the Joint Communiqué further provides:
“On the judgment of the International Court of Justice
(ICJ) of 19th December 2009 [sic] related to the Uganda
military activities in the DRC, it was agreed that President
Joseph Kabila comes up with a new proposal on the
implementation of the court judgment. The two Heads of
State decided that in the interim, the filing of Memorials on
reparation by DRC scheduled on 28th September 2016 be
42 Joint Communiqué Issued by the Democratic Republic of the Congo and the Republic of
Uganda Held on 4th August 2016, at Mweya Safari Lodge, Kasese District, Uganda (4 Aug.
2016), Vol. II, Annex 2.
20
postponed pending consideration of the proposals to settle
the question of reparations directly.”
1.51 As Uganda explained to the Court in its letter dated 22 September 2016,
Uganda understands the Joint Communiqué to constitute an international
agreement binding on both Parties to resume negotiations, and not to submit their
respective Memorials in light of the forthcoming proposals from the DRC to
settle the question of reparations directly.43
1.52 However, given the prevailing state of uncertainty, and given that the
Court has not modified its scheduling Order dated 11 April 2016, Uganda
considers that it has no choice but to submit the present Memorial to protect its
rights and interests, despite the clear provisions of the Joint Communiqué.
Uganda expressly reserves all of its rights under the Joint Communiqué and
otherwise.
43 The Joint Communiqué was registered with the United Nations on 26 September 2016.
21
CHAPTER 2
RELEVANT RULES OF INTERNATIONAL LAW ON
REPARATION
2.1 In this Chapter, Uganda discusses the relevant rules of
international law applicable to reparation claims. These rules apply
equally to Uganda’s counter-claims and to the DRC’s claims. This
Chapter is presented in three sections. Section I addresses the purpose and
scope of the obligation to make full reparation in international law.
Section II discusses general legal principles relating to satisfaction as a
form of reparation. Finally, Section III sets out the general legal
principles governing compensation as a form of reparation.
I. The Function and Scope of the Obligation to Make Full
Reparation
2.2 It is “well established in general international law that a State
which bears responsibility for an internationally wrongful act is under an
22
obligation to make full reparation for the injury caused by that act.”44
“Injury” includes “any damage, whether material or moral.”45
2.3 The function of reparation is, to the extent possible, to re-establish
the situation that would have existed but for the internationally wrongful
act. As the Court’s predecessor, the PCIJ, explained in Factory at
Chorzów, “reparation must, so far as possible, wipe out all the
consequences of the illegal act and reestablish the situation which would,
in all probability, have existed if that act had not been committed.”46 That
said, reparation is due only for the injury actually caused by a wrongful
act. This “make[s] clear that the subject matter of reparation is, globally,
the injury resulting from and ascribable to the wrongful act, rather than
any and all consequences flowing from an internationally wrongful act.”47
2.4 Reparation can “take the form of restitution, compensation and
satisfaction, either singly or in combination.”48 The Court has observed
44 Armed Activities (2005), para. 259 (citing to Factory at Chorzów, Claim for Indemnity,
Jurisdiction, Judgment, 1927, P.C.I.J., Series A, No. 9, p. 21; Gabčíkovo-Nagymaros
Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997 (“Gabčíkovo-Nagymaros
Project”), p. 81, para. 152; Avena and Other Mexican Nationals (Mexico v. United States
of America), Judgment, I.C.J. Reports 2004 (“Avena and Other Mexican Nationals”), p.
59, para. 119.
45 ARSIWA, Art. 31(2).
46 Factory at Chorzów, Claim for Indemnity, Merits, Judgment, 1928, P.C.I.J., Series A,
No. 17 (“Chorzów Factory, Merits”), p. 47.
47 ARSIWA, Art. 31 cmt. 9.
48 Ibid., Art. 34.
23
that the form and scope of reparation, “clearly varies depending upon the
concrete circumstances surrounding each case and the precise nature and
scope of the injury.”49 Given the nature of Uganda’s counter-claims (and
the DRC’s claims), combined with the fact that neither Party is seeking
restitution as such, the Parties’ obligation to make reparation in the
present case can be discharged either by satisfaction or compensation, or
both.
2.5 Uganda observes further that the Parties have not requested the
Court to decide their reparation claims ex aequo et bono. The Court must
therefore adjudicate those claims “in accordance with international law”
within the meaning of Article 38(1) of the Court’s Statute.50
2.6 There is no treaty between the Parties that establishes rules
governing reparation. The Court must therefore rely on customary rules of
international law and general principles of law, as articulated in the
Court’s prior jurisprudence and that of other international courts and
tribunals, together with the teachings of the most highly qualified
publicists. These rules and general principles, which are equally
49 Avena and Other Mexican Nationals, para. 119; Pulp Mills on the River Uruguay
(Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14 (“Pulp Mills”), para. 274.
50 Statute of the International Court of Justice, Art. 38(2) (“This provision shall not
prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree
thereto.”).
24
applicable to the claims of both Parties, are discussed in the sections that
follow.
II. The Obligation to Give Satisfaction for the Injury Caused by a
Wrongful Act
2.7 Satisfaction is one of the forms of reparation that a State may be
called upon to provide to discharge its obligation to make reparation for
the injury caused by its internationally wrongful act.51 Indeed, satisfaction
is the most frequently awarded form of reparation in international
practice, including in cases before the Court. Of the Court’s 14 judgments
on liability decided to date, it has awarded compensation only in two
instances: the Corfu Channel and Diallo cases.52 In seven cases, the Court
has deemed satisfaction to be adequate reparation.53
51 ARSIWA, Art. 37(1) (“The State responsible for an internationally wrongful act is
under an obligation to give satisfaction for the injury caused by that act insofar as it
cannot be made good by restitution or compensation.”).
52 The Permanent Court of Justice only awarded compensation in one case: S.S.
“Wimbledon”, Judgment, 1923, P.C.I.J., Series A, No. 1 (“S.S. “Wimbledon””).
53 Corfu Channel (U.K. v. Albania), Merits, Judgment, I.C.J. Reports 1949 (“Corfu
Channel”), p. 36; Arrest Warrant of 1 I April 2000 (Democratic Republic of the Congo v.
Belgium), Judgment, I.C.J. Reports 2002 (“Arrest Warrant”), para.75; Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (“Bosnia and
Herzegovina v. Serbia and Montenegro” (2007)), paras. 463-464; Certain Questions of
Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports
2008 (“Djibouti v. France” (2008)), para. 205(2)(a); Pulp Mills, para. 282; Application
of the Interim Accord of 13 September 1995 (The Former Yugoslav Republic of
Macedonia v. Greece), Judgment, I.C.J. Reports 2011 (“FYRM v. Greece”), para. 169;
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa
25
2.8 The practice of the Court and other international tribunals point to
at least three circumstances in which satisfaction is the most appropriate
form of reparation.
2.9 First, satisfaction constitutes adequate reparation whenever
restitution is not possible and the quantum of compensation cannot be
accurately assessed due to a lack of adequate evidence. The Eritrea-
Ethiopia Claims Commission (“EECC” or “Commission”), which
arbitrated claims between Ethiopia and Eritrea for losses resulting from
violations of international law during the 1998-2000 conflict between
those parties, provides a good example of this practice. The EECC
determined that Ethiopia had violated international law by, inter alia,
depriving certain persons who had dual Ethiopian and Eritrean nationality
of their Ethiopian citizenship. Although the injury was material in nature,
the Commission concluded that Eritrea had not presented sufficient
evidence in support of the extent of any injury from this wrongful act. The
EECC thus found reparation in the form of satisfaction alone was
warranted.
2.10 Specifically, it stated:
Rica), Judgment, I.C.J. Reports 2015 (“Nicaragua v. Costa Rica” (2015)), paras. 139,
224.
26
“Taking into account the limitations of the record,
and in particular the paucity of evidence regarding
the practical consequences following from the loss
of Ethiopian nationality, the Commission decides
that satisfaction in the form of the Commission’s
earlier liability findings constitutes sufficient
reparation for Eritrea’s claims for compensation for
unlawful deprivation of some dual nationals’
Ethiopian nationality.”54
2.11 Likewise, the Commission viewed Ethiopia’s unlawful seizure of
the Eritrean ambassador’s papers, personal property and hand luggage as a
material injury for which compensation was possible. It nevertheless
found that because Eritrea had failed to provide evidence supporting its
valuation of the property, satisfaction in the form of the Commission’s
finding on liability was the appropriate form of reparation.55
2.12 Second, satisfaction is the appropriate remedy when a State’s
failure to exercise due diligence to prevent other actors from causing
injury is found not to have directly caused the injury in question. This rule
is related to the need to show a direct and certain causal nexus between
the wrongful act and the injury. In cases where it is uncertain whether the
injury would have been avoided had the required due diligence been
exercised, the Court has awarded satisfaction instead of compensation.
54 Eritrea’s Damages Claims, Final Award, Eritrea-Ethiopia Claims Commission,
Decision of 17 August 2009, reprinted in 26 U.N.R.I.A.A. 505 (2009) (“Eritrea’s
Damages Claims”), para. 288.
55 Ibid., para. 387-88.
27
2.13 The Court explained in the Bosnia and Herzegovina v. Serbia and
Montenegro that:
“whether the genocide at Srebrenica would have
taken place even if the Respondent had attempted to
prevent it by employing all means in its possession,
becomes directly relevant, for the definition of the
extent of the obligation of reparation borne by the
Respondent as a result of its wrongful conduct. The
question is whether there is a sufficiently direct and
certain causal nexus between the wrongful act, the
Respondent’s breach of the obligation to prevent
genocide, and the injury suffered by the Applicant,
consisting of all damage of any type, material or
moral, caused by the acts of genocide. Such a nexus
could be considered established only if the Court
were able to conclude from the case as a whole and
with a sufficient degree of certainty that the
genocide at Srebrenica would in fact have been
averted if the Respondent had acted in compliance
with its legal obligations. However, the Court
clearly cannot do so. As noted above, the
Respondent did have significant means of
influencing the Bosnian Serb military and political
authorities which it could, and therefore should,
have employed in an attempt to prevent the
atrocities, but it has not been shown that, in the
specific context of these events, those means would
have sufficed to achieve the result which the
Respondent should have sought. Since the Court
cannot therefore regard as proven a causal nexus
between the Respondent’s violation of its obligation
of prevention and the damage resulting from the
genocide at Srebrenica, financial compensation is
not the appropriate form of reparation for the
breach of the obligation to prevent genocide.”56
56 Bosnia and Herzegovina v. Serbia and Montenegro (2007), para. 462 (emphasis
added).
28
2.14 Rather than award compensation, the Court stated that “[a]s in the
Corfu Channel case, the Court considers that a declaration of [the
wrongful act] is in itself appropriate satisfaction, and it will, as in that
case, include such a declaration in the operative clause of the present
Judgment.”57
2.15 Finally, satisfaction is awarded in the context of non-material
damage to a State. It is the appropriate remedy for “those injuries, not
financially assessable, which amount to an affront to the State.”58 The
arbitral tribunal in the Rainbow Warrior case explained:
“There is a long established practice of States and
international Courts and Tribunals of using
satisfaction as a remedy or form of reparation (in
the wide sense) for the breach of an international
obligation. This practice relates particularly to the
case of moral or legal damage done directly to the
State, as opposed to the case of damage to
persons.”59
57 Ibid., para. 463.
58 ARSIWA, Art. 37, cmt. 3.
59 Difference between New Zealand and France Concerning the Interpretation or
Application of two Agreements, Concluded on 9 July 1986 between the two States and
which Related to the Problems Arising from the Rainbow Warrior Affair, Decision (30
Apr. 1990), reprinted in 20 U.N.R.I.A.A. 215 (2006), para. 122. In this case, which
concerned with violations of sovereignty and territorial integrity, the tribunal held that
“the condemnation of the French Republic for its breaches of its treaty obligations to
New Zealand, made public by the decision of the Tribunal, constitutes…appropriate
satisfaction for the legal and moral damage caused to New Zealand.” Ibid., para 123.
29
2.16 The circumstances in which satisfaction was held to be adequate
reparation include the ill treatment of diplomatic or consular
representatives and violations of the premises of embassies, consulates, or
of the residents of members of the mission.60
2.17 The EECC found, for example, that Ethiopia’s unlawful searches
of Eritrean diplomatic personnel as they departed Ethiopia, and Eritrea’s
unlawful searches of Ethiopian diplomatic personnel as they departed
Eritrea, as well as the unlawful arrest and temporary detention of the
Ethiopian Chargé d’Affaires, constituted non-material injury for which
satisfaction was appropriate. This took the form of the Commission’s
declaration of the wrongfulness of those acts.61
2.18 Many possibilities exist as to the form in which satisfaction may
be given.62 One of “the most common modalities of satisfaction” is “a
declaration of the wrongfulness of the act by a competent court or
tribunal.”63
60 ARSIWA, Art. 37(2), cmt. 4.
61 Eritrea’s Damages Claims, para. 386 & IX(18); Ethiopia’s Damages Claims, Final
Award, Eritrea-Ethiopia Claims Commission, Decision of 17 August 2009, reprinted in
26 U.N.R.I.A.A. 631 (2009), paras. 387-88 & XII(C).
62 ARSIWA, Art. 37(2), cmt. 5.
63 Ibid., Art. 37(2), cmt. 6.
30
2.19 The significance and utility of declaratory relief in such
circumstances was affirmed by the Court in Corfu Channel. After finding
a mine-sweeping operation carried out by the British Navy unlawful, the
Court ruled:
“To ensure respect for international law, of which it
is the organ, the Court must declare that the action
of the British Navy constituted a violation of
Albanian sovereignty. This declaration is in
accordance with the request made by Albania
through her Counsel, and is in itself appropriate
satisfaction.”64
2.20 This same approach has been followed in many subsequent
cases.65
2.21 The DRC itself has recognised the significance of satisfaction as a
form of reparation. In its submissions to the Court during the
compensation phase of the Diallo case, the DRC stated: “It is important
not to lose sight of the fact that Guinea has already obtained satisfaction
simply from the Court’s judicial finding that the DRC had violated
64 Corfu Channel, p. 35 & dispositif, p. 36.
65 Bosnia and Herzegovina v. Serbia and Montenegro (2007), paras. 463-464; Djibouti v.
France (2008), para. 205(2)(a); Pulp Mills, p. 282; FYRM v. Greece, para. 169;
Nicaragua v. Costa Rica (2015), paras. 139, 224; See also Rainbow Warrior, RIAA, vol.
XX, p. 217 (1990), para. 123.
31
international law. Guinea will thus have received twofold satisfaction in
this case” when seeking further reparation.66
2.22 The same is true here. Both Parties, by having received judicial
declarations vindicating various aspects of their claims, have received
clear and meaningful satisfaction from the principal judicial organ of the
United Nations.
III. The Obligation to Pay Compensation for the Damage Caused
by an Internationally Wrongful Act
2.23 In other circumstances, it is “a well-established rule of
international law that an injured State is entitled to obtain compensation
from the State that has committed an internationally wrongful act for the
damage caused by it.”67 The amount of compensation an injured State
may obtain will depend, however, on the extent to which a claim for
compensation satisfies the rules and principles of international law
governing such questions.
2.24 Those include, among others:
66 Counter-Memorial of the Democratic Republic of the Congo (Question of
Compensation Owed to Guinea by the DRC) in Ahmadou Sadio Diallo (Republic of
Guinea v. Democratic Republic of the Congo) (21 Feb. 2012) (“Counter-Memorial on
Compensation of the DRC in Diallo Case (2012)”), para. 1.48.
67 Gabčíkovo-Nagymaros Project, para. 152. See also ARSIWA, Art. 36(1) (“The State
responsible for an internationally wrongful act is under an obligation to compensate for
the damage caused thereby[.]”).
32
a) Compensation is limited to damage actually caused by a
specific internationally wrongful act; indirect, remote and
speculative damages are excluded;
b) Compensation can cover only financially assessable
damage in so far as it is proved by clear, credible and
convincing evidence;
c) Compensation must be proportionate to actual injury;
d) Compensation cannot be punitive;
e) Compensation must not exceed the payment capacity of the
responsible State or impair its ability to meet the basic
needs of its people;
f) Compensation does not cover damages the injured State
failed to mitigate; and
g) Compensation must exclude damages to which the injured
State contributed.
2.25 Each of these rules and principles are discussed in the subsections
that follow.
A. Compensation Is Limited to Damage Caused by Specific
Wrongful Acts
2.26 Under international law, compensation may be payable only for
the specific injury caused by a State’s internationally wrongful act.68 The
requisite casual nexus must, moreover, be “direct and certain.” The Court
68 Gabčíkovo-Nagymaros Project, para. 152; Bosnia and Herzegovina v. Serbia and
Montenegro (2007), para. 462; Ahmadou Sadio Diallo (Republic of Guinea v.
Democratic Republic of the Congo), I.C.J. Reports 2012 (“Diallo (2012)”), para. 14. See
also ARSIWA, Art. 36(1) (“The State responsible for an internationally wrongful act is
under an obligation to compensate for the damage caused thereby.”) and Art. 31(1) (“The
responsible State is under an obligation to make full reparation for the injury caused by
the internationally wrongful act.”).
33
itself has consistently emphasised this requirement. In the Diallo case, for
instance, it ruled:
“As to each head of damage, the Court will
consider whether an injury is established. It will
then ascertain whether, and to what extent, the
injury asserted by the Applicant is the consequence
of wrongful conduct by the Respondent, taking into
account whether there is a sufficiently direct and
certain causal nexus between the wrongful act and
the injury suffered by the Applicant. If the existence
of injury and causation is established, the Court will
then determine the valuation.”69
2.27 The “direct and certain causal nexus” requirement is central in
determining the scope of compensation because “the subject matter of
reparation is, globally, the injury resulting from and ascribable to the
wrongful act.”70 As noted, it does not extend to “any and all consequences
flowing from an internationally wrongful act.”71 Losses, damages or
injuries that are “too indirect, remote, and uncertain”72 are therefore
excluded.
69 Diallo (2012), para. 14; Bosnia and Herzegovina v. Serbia and Montenegro (2007),
para. 462 (emphasis added).
70 ARSIWA, Art. 31, cmt. 1.
71 ARSIWA, Art. 31, cmt. 9.
72 Trail Smelter Case (United States, Canada), Award (16 Apr. 1938 and 11 Mar. 1941),
reprinted in 3 U.N.R.I.A.A. 1905 (2006), p. 1931; see also Alabama arbitrations where
“indirect” damages were excluded altogether. “Alabama Claims”, Protocol V, Record of
the proceedings of the Tribunal of Arbitration at the fifth conference held at Geneva, in
Switzerland, on the 19th of June, 1872, reprinted in J. C. Bancroft Davis, Report of the
Agent of the United States Before the Tribunal of Arbitrations at Geneva (1873)
(“Alabama Claims”), pp. 21-22.
34
2.28 For those reasons, international tribunals have uniformly rejected
claims for all damages relating to the outbreak of war.73 The EECC, for
example, ruled that “a significant range of possible damages related to
armed conflict lie beyond the pale of State responsibility.”74 These
include (but are not limited to) the following: generalised economic and
social consequences of war;75 business losses of either State or private
entities that stem from generalised conditions of economic disruption in
wartime;76 the decline in international development assistance;77 and the
73 United States v. Germany, U.S.-Germany Mixed Claims Commission, Administrative
Decision No. II, Award (1 Nov. 1923), reprinted in 7 U.N.R.I.A.A. 1 (2006), pp. 23, 28;
Alabama Claims, pp. 21-22; Ethiopia’s Damages Claims, para. 289.
74 Eritrea-Ethiopia Claims Commission, Decision No. 7: Guidance Regarding Jus ad
Bellum Liability (27 July 2007) (“EECC, Decision No. 7”), para. 13.
75 The EECC observed: “Since at least the Alabama arbitration, panels have rejected
claims for damages to generalized economic interests of the victorious State or its
nationals, or to its expenses in waging war. ... The United States-German Mixed Claims
Commission…emphasized the need for a direct causal connection between a loss and the
actions of the defendant State, and rejected claims for “all damage or loss in consequence
of the war.” The Commission also held that “international law does not impose liability
for such generalized economic and social consequences of war.” Ethiopia’s Damages
Claims, paras. 286, 395.
76 The EECC regarded “business losses stemming from generalized conditions of
economic disruption in wartime…as too remote from Eritrea’s jus ad bellum violation,
and as not compensable.” Ibid., para. 402.
77 As the EECC concluded: “The record was not sufficient to establish either the amount
of the alleged loss, or a sufficient causal connection between that loss and Eritrea’s
violation of the jus ad bellum. In this connection, any reduction of development
assistance to Ethiopia resulted from decisions taken by international financial
institutions and foreign governments for their own reasons. Particularly where the
immediate cause of the alleged injury was decisions made by third parties, much more
compelling evidence would be required to show that the loss was attributable to Eritrea’s
jus ad bellum violation. The claim is dismissed.” Ibid., para. 465.
35
loss of foreign and domestic investment.78
2.29 The Court’s 2005 Judgment on the merits in this case itself
underscores the importance of the “direct and certain causal nexus”
requirement. After identifying the internationally wrongful acts for which
Uganda was responsible and noting its obligation to make reparation, the
Court stated that it would be incumbent on the DRC “to demonstrate and
prove the exact injury that was suffered as a result of specific actions of
Uganda constituting internationally wrongful acts for which it is
responsible.”79 The same, of course, applies mutatis mutandis to Uganda’s
counter-claims.
2.30 The obligation of both Parties to pay compensation therefore turns
on specific proof of specific injuries caused by specific acts for which
they are responsible. Both Uganda and the DRC have the burden to prove:
(1) “the exact injury” suffered as a consequence of (2) the “specific
actions” (3) “for which [they have been found] responsible” under
international law.
78 Ethiopia claimed more than US$ 2 billion for foreign and domestic investment in the
Ethiopian economy that allegedly was not made during the war years. The EECC held:
“given the huge amount claimed…there was insufficient evidence to show the amount of
any compensable injury to the State of Ethiopia. Of greater import, the evidence did not
establish a sufficient causal connection between Eritrea’s jus ad bellum delict and any
injury to Ethiopia stemming from reductions in foreign and domestic investment during
the war years.” Ibid., paras. 466, 469.
79 Armed Activities (2005), para. 260 (emphasis added).
36
2.31 This exercise has to be carried out strictly within the limitations
ratione materiae, ratione loci and ratione temporis of the Court’s findings
with respect to the responsibility of both Parties, which constitute res
judicata. There were many aspects of the claims advanced by both Parties
during the merits phase that the Court rejected, and only some aspects—
limited by subject, location and time—that led to findings of State
responsibility.
2.32 For example, with respect to responsibility ratione materiae, since
the Court did not find the DRC responsible for acts of aggression against
Uganda, Uganda is now precluded from claiming reparation for the loss,
damage, or injury associated with that part of Uganda’s counter-claim.
Likewise, since the Court did not find Uganda internationally responsible
for acts by rebel groups of looting, plundering, or exploitation of the
DRC’s natural resources (other than in Ituri district),80 the DRC is now
precluded from claiming reparation for such conduct.
2.33 With respect to responsibility ratione loci, the Court did not find
the DRC responsible for alleged mistreatment of Ugandan nationals (other
than diplomats) who were present at Ndjili International Airport as they
attempted to leave the country. As such, Uganda is now precluded from
80 Ibid., para. 247.
37
claiming reparation for that alleged mistreatment of those nationals at the
airport.81 Likewise, the Court did not find Uganda responsible for actions
at certain locations in the DRC.82 The DRC is therefore precluded from
seeking reparation for loss, damage or injury resulting from the attacks in
those places.
2.34 As regards limitations ratione temporis, the Court found the DRC
responsible for three separate attacks on the Ugandan diplomatic premises
in Kinshasa in August, September and November 1998.83 Consequently,
Uganda’s claim for reparation is limited to the loss, damage or injury
resulting from those attacks and long-term occupation, and not incidents
occurring after Uganda regained access to its diplomatic premises.
Likewise, the DRC may only claim reparation for loss, damage or injury
occurring within the time period indicated in the 2005 Judgment. Thus,
with respect to the Court’s finding that certain wrongful acts occurred
during the course of Uganda’s occupation in Ituri district in the DRC, the
81 Ibid., paras. 332-333.
82 Ibid., para. 71 (finding that “on the basis of the evidence before it, it has not been
established to its satisfaction that Uganda participated in the attack on Kitona”); ibid., p.
209, para. 91 (finding that the Court “has not received convincing evidence that Ugandan
forces were present at Mobenzene, Bururu, Bomongo and Moboza”).
83 Ibid., paras. 306, 334-337.
38
Court appears to have regarded that occupation as commencing in June
199984 and ending in June 2003,85 when Ugandan forces withdrew.
2.35 It follows that in order for the Court to determine the scope of the
Parties’ obligation to pay compensation, both Uganda and the DRC must
demonstrate a sufficiently direct and certain causal nexus between the
exact injury they suffered and specific internationally wrongful acts,
limited by subject, location and time, for which they were found
responsible in the 2005 Judgment.
B. Compensation Covers Only Financially Assessable Damage
Insofar as It Is Established
2.36 The function of compensation is to address the actual losses
resulting from an internationally wrongful act. Compensation covers only
“financially assessable damage including loss of profits insofar as it is
established.”86 Even if a violation of international law has been proven, it
is a separate matter to establish the extent of the damage that resulted
from the violation in question. If the extent of damage is not proven, then
no further reparation beyond the finding of a wrongful act is appropriate.
84 Ibid., para. 175.
85 Ibid., para. 167.
86 ARSIWA, Art. 36(2) (emphasis added).
39
2.37 Establishing compensable damage involves two interrelated issues:
a burden of proof and a standard of proof.
2.38 As to the burden of proof, the Court has on several occasions
noted the “general rule” that “it is for the party which alleges a particular
fact in support of its claims to prove the existence of that fact.”87 This
requirement is also reflected in the 2005 Judgment. Indeed, anticipating
the possibility of the DRC returning to the Court to seek compensation in
a separate phase, the Court stated: “The DRC would thus be given the
opportunity to demonstrate and prove the exact injury that was suffered”
as a result of Uganda’s internationally wrongful acts.88 The same is true,
of course, with respect to demonstrating the exact damage suffered with
respect to Uganda’s counter-claim. The burden is on Uganda to prove the
extent of such damage during this phase.89
2.39 As regards the standard of proof, the requirement that damage is
compensable insofar as it is established means that no compensation “for
speculative and uncertain damage can be awarded.”90 International courts
87 Diallo (2010), para. 54; FYRM v. Greece, para. 72; Pulp Mills, para. 162.
88 Armed Activities (2005), para. 260.
89 Ibid., para. 344.
90 Amco Asia Corporation and Others v. Republic of Indonesia, ICSID Case No.
ARB/81/1, Award (20 Nov. 1984), reprinted in 1 ICSID Reports 413 (1993) (“Amco v.
Indonesia”), para. 238; Chorzów Factory, Merits, p. 56.
40
and tribunals, including this Court, look for clear, credible and convincing
evidence in support of a claim for compensation.91
2.40 Relevant practice in this regard can be found in the Diallo case,
where the DRC itself advanced the standard of “credible and convincing”
evidence in the context of compensation claims. The DRC acknowledged,
for example, that it was incumbent upon the claimant in that case, Guinea,
“to provide the Court with … credible and convincing evidence of the
genuine, rather than imaginary, existence of Mr. Diallo’s [property],” with
“evidence of the real, rather than hypothetical, loss of [that property],” and
with “credible and irrefutable proof of [the property’s] financial value.”92
91 For general discussion of the Court’s evidentiary practice, see Jean-Flavien Lalive,
“Quelques remarques sur la preuve devant la Cour permanente et la Cour internationale
de Justice”, 7 Annuaire suisse de droit international 77 (1950). Vol. II, Annex 21; Keith
Highet, “Evidence, the Court, and the Nicaragua Case”, 81 American Journal of
International Law 1 (1987). Vol. II, Annex 24; Eduardo Valencia-Ospina, “Evidence
before the International Court of Justice”, 1 International Law Forum 202 (1999). Vol.
II, Annex 25; Maurice Kamto, “Les moyens de preuve devant la Cour internationale de
Justice à la lumière de quelques affaires récentes portées devant elle”, 49 German
Yearbook of International Law 259 (2006). Vol. II, Annex 27; Ruth Teitelbaum, “Recent
Fact-finding Developments at the International Court of Justice”, 6 Law and Practice of
International Courts and Tribunals 119 (2007). Vol. II, Annex 29; P. Tomka & V.-J.
Proulx, “The Evidentiary Practice of the World Court” in LIBER AMICORUM
GUDMUNDUR EIRIKSSON (J. C. Sainz-Borgo ed., forthcoming 2016). Vol. II, Annex 32.
For the evidentiary practice of other international courts and tribunals, see, generally,
J.C. Witenberg, “La théorie des preuves devant les juridictions internationales”, 56
Recueil des Cours 1 (1936-II). Vol. II, Annex 19; Durward Sandifer, Evidence Before
International Tribunals (1975). Vol. II, Annex 23; Chittharanjan Amerasinghe, Evidence
in International Litigation (2005). Vol. II, Annex 26.
92 Counter-Memorial on Compensation of the DRC, in Diallo (2012), para. 2.42
(emphasis added).
41
2.41 Likewise, the DRC contested Guinea’s claim by stating “that
Guinea has failed to show in a sufficient and convincing manner, beyond
all reasonable doubt” the loss of Mr. Diallo’s property,93 and that
Guinea’s claim for loss of potential earnings “is neither credible nor
justified.”94
2.42 The requirement to provide objective proof applies with particular
force to alleged lost profits, compensation for which tribunals have
typically been reluctant to provide due to their inherently speculative
nature.95 By definition, calculations of lost profits are vulnerable to
unquantifiable commercial and political risks, which only increase the
further into the future projections are made. To be compensable, lost
profits must therefore have “sufficient attributes to be considered a legally
protected interest of sufficient certainty.”96 They must be direct and
foreseeable, not merely possible.97
93 Ibid., para. 2.50 (emphasis added).
94 Ibid., para. 2.55 (emphasis added).
95 ARSIWA, Art. 36, cmt. 27.
96 Ibid.
97 In Percy Shufeldt the Arbitrator held that: “[L]ucrum cessans must be the direct fruit
of the contract and not too remote or speculative. … The contract at the date of its
cancellation or abrogation had been in existence for six years, and the extraction and
exportation of chicle was carried on as a going business which was producing substantial
profits, and there is nothing to show that these profits would not have been continued to
the expiration of the contract.” Percy Shufeldt Claim (U.S.A./Guatemala), Award
42
2.43 In this regard, Uganda observes that the Court’s approach to the
award of compensation has been premised on proof of actual loss, damage
or injury, and not on the techniques and evidentiary standards that operate
before mass claims commissions.
2.44 It follows that the scope of the Parties’ duty to compensation will
depend on the extent to which they establish damage in accordance with
the rules governing the burden and standard of proof.
C. Compensation Must Be Proportionate
2.45 Monetary compensation is intended to offset, in so far as possible,
damage suffered by the injured State as a result of a breach of an
international legal obligation.98 It must be proportionate to actual injury.99
This requirement can be met by taking into account the nature of the
wrongful act, the concrete circumstances surrounding each case, and the
(24 July 1930), reprinted in 2 U.N.R.I.A.A. 1079 (2006), p. 1099. See also Marjorie
Whiteman, Damages in International Law (1943), pp. 1836-1837. Vol. II, Annex 20.
98 ARSIWA, Art. 36, cmt. 4.
99 As the US-German Claims Commission held: “The fundamental concept of ‘damage’
is…reparation for a loss suffered; a judicially ascertained compensation for wrong. The
remedy should be commensurate with the loss.” Opinion in the Lusitania Cases (1 Nov.
1923), reprinted in 7 U.N.R.I.A.A. 32 (2006) (“Opinion in the Lusitania Cases”), p. 39
(emphasis added). See also Avena and Other Mexican Nationals, para. 119 (where the
ICJ also stated that reparation must correspond to the injury).
43
precise nature and scope of the injury.100 Two rulings of the EECC are
particularly instructive in this regard.
2.46 First, the EECC held that there must be a measure of proportion
between the character of a wrongful act and the compensation due.101 For
example, it concluded that even though “Eritrea’s violation of the jus ad
bellum … was serious, and had serious consequences,” that violation
nonetheless “was different in magnitude and character from the aggressive
uses of force marking the onset of the Second World War, the invasion of
South Korea in 1950, or Iraq’s 1990 invasion and occupation of
Kuwait.”102 The Commission thus held that the “determination of
compensation must take such factors into account.”103 Similar factors
should apply here.
2.47 Second, the EECC held that to avoid disproportionate
compensation, injury must be assessed by reference to the actual social
and economic conditions in the place of its occurrence. It explained:
“[C]ompensation must be assessed in light of the
actual social and economic circumstances of the
injured individuals in respect of whom the State is
100 Pulp Mills, para. 274; Avena and Other Mexican Nationals, para. 119.
101 Ethiopia’s Damages Claims, paras. 311-312.
102 Ibid., para. 312.
103 Ibid., para. 312.
44
claiming. The difficult economic conditions found
in the affected areas of Eritrea and Ethiopia must be
taken into account in assessing compensation there.
Compensation determined in accordance with
international law cannot remedy the world’s
economic disparities.”104
2.48 It follows that compensation that may be due to Uganda and the
DRC must be commensurate with the character of a wrongful act and the
Parties’ actual social and economic circumstances.
D. Compensation Must Not Be Punitive
2.49 The purpose of compensation is not to punish the responsible
State. Nor does compensation have an exemplary character. Its function is
purely compensatory.105 There is “not a single case in contemporary
practice in which an international court or tribunal has awarded punitive
damages.”106 Even where “serious breaches of international obligations
were involved, either due to the importance of the norm breached or
104 Eritrea’s Damages Claims, p. 508, para. 26; Ethiopia’s Damages Claims, para. 26
(emphasis added).
105 ARSIWA, Art. 36, cmt. 4. In Velásquez-Rodríguez v. Honduras, the case concerned
damages for disappearance of a person. The Inter-American Court of Human Rights held
that international law did not recognise the concept of punitive damages. Case of
Velásquez-Rodríguez v. Honduras, IACHR, Judgment of July 21, 1989, Series C, No. 7
(Compensation), para. 38. In Re Letelier and Moffit, claims concerned the assassination
in Washington DC by Chilean agents of a former Chilean Minister; the compromis
excluded any award of punitive damages, despite their availability under the United
States law. Dispute concerning responsibility for the deaths of Letelier and Moffitt
(United States, Chile), Award (11 Jan. 1992), reprinted in 25 U.N.R.I.A.A. 1 (2006).
106 Stephan Wittich, “Punitive Damages”, in THE LAW OF INTERNATIONAL
RESPONSIBILITY (J. Crawford et al. eds., 2010), pp. 669-671. Vol. II, Annex 31.
45
because of aggravating circumstances—or both—punitive damages were
not an issue.”107
2.50 As long ago as in 1923, the US-German Claims Commission flatly
rejected a request for punitive damages in the Lusitania Cases, in which
the Commission was called upon to assess the damages done to American
nationals when a German submarine torpedoed the British liner Lusitania
before America’s entry into the First World War. The Commission held
that the “remedy should be commensurate with the loss”108 and “no
exemplary, punitive, or vindictive damages can be assessed.”109
2.51 And in the Corfu Channel case, this Court emphasised the “grave
omissions” by Albania, yet treated the violation like any other wrongful
act and awarded damages that were purely compensatory in character.110
2.52 The same point was more recently reaffirmed by the EECC, which
stated that “compensation has a limited role which is remedial, not
punitive.”111 According to the EECC, the award of damages in inter-State
proceedings is aimed at “providing appropriate compensation within the
107 Ibid., p. 671.
108 Opinion in the Lusitania Cases, p. 39.
109 Ibid., p. 36.
110 Corfu Channel, para 23; see also Stephan Wittich, “Punitive Damages”, p. 671. Vol.
II, Annex 31.
111 Eritrea’s Damages Claims, para. 26.
46
framework of the law of State responsibility.”112 In this regard, the
Commission noted that “in situations involving unlawful use of force,
States and the United Nations have created regimes or accepted outcomes
involving compensation for far less than the damage caused by the
unlawful use of force.”113 The Commission followed this example by
dismissing various excessive compensation claims by the Parties where
their purpose appeared to be punitive, not remedial.
2.53 The DRC itself has acknowledged that the purpose of
compensation is not to punish but to provide for reparation that is
reasonable and proportionate to injury. In the Diallo case, the DRC argued
that it “contests and rejects this amount [sought by Guinea], which is
manifestly excessive and disproportionate in relation to the injury actually
suffered.”114 The DRC also asserted with respect to non-material damage
that “the Respondent recalls that the purpose of compensation for the nonpecuniary
damage suffered by Mr. Diallo is neither to enrich him,
enabling him to invest in commercial activities in Guinea, nor to enrich
112 Ethiopia’s Damages Claims, para. 308.
113 Ibid., para. 313 (emphasis added).
114 Counter-Memorial on Compensation of the DRC in Diallo (2012), para. 1.7.
47
Guinea. Rather, it is a form of financial relief, intended to compensate the
said injury.”115
2.54 It follows that neither Uganda nor the DRC can extract retribution
through compensation. They may claim only the actual losses incurred as
a result of the internationally wrongful acts.
E. Compensation Must Not Exceed the Payment Capacity of the
Responsible State
2.55 International law limits compensation in another critical respect: it
must not exceed the payment capacity of the responsible State; nor may it
cause serious injury to the paying State’s population.116 To the contrary,
compensation must be commensurate with a State’s ability to pay. In no
case may compensation have the effect of depriving the people of the
responsible State of their means of subsistence.117
2.56 These principles were most recently reaffirmed by the EECC.
Ethiopia claimed nearly US$ 14.3 billion for damages resulting from
115 Counter-Memorial on Compensation of the DRC in Diallo (2012), para. 1.48.
116 Ethiopia’s Damages Claims, para. 22; Eritrea’s Damages Claims, para. 22. See also
William Bishop, “State Responsibility”, 2 Recueil des Cours 384 (1965), p. 403. Vol. II,
Annex 22; Richard Falk, “Reparations, International Law, and Global Justice”, in THE
HANDBOOK OF REPARATIONS (P. de Greiff ed., 2006), p. 492. Vol. II, Annex 28;
Christian Tomuschat, “Reparations in Favour of Individual Victims of Gross Violations
of Human Rights and International Humanitarian Law”, in PROMOTING JUSTICE, HUMAN
RIGHTS AND CONFLICT RESOLUTION THROUGH INTERNATIONAL LAW, LIBER AMICORUM
LUCIUS CAFLISCH (M. Kohen ed., 2007), pp. 581 et seq. Vol. II, Annex 30.
117 Ethiopia’s Damages Claims, para. 19; Eritrea’s Damages Claims, para. 19.
48
Eritrea’s violations of both jus ad bellum and jus in bello. For its part,
Eritrea claimed approximately US$ 6 billion from Ethiopia for damages
resulting from breaches of jus in bello.118
2.57 The Commission expressed concern about the magnitude of these
claims, calling them “huge, both absolutely and in relation to the
economic capacity of the country against which they were directed.”119 It
observed further that claims of such magnitude raise “serious questions
involving the intersection of the law of State responsibility with
fundamental human rights norms”120 that required limiting compensation
so as to avoid imposing crippling burdens upon the paying State.
2.58 The Commission explained:
“Both Ethiopia and Eritrea are parties to the
International Covenant on Economic, Social and
Cultural Rights (“ICESCR”) and the International
Covenant on Civil and Political Rights. Both
Covenants provide in Article I(2) that ‘[i]n no case
may a people be deprived of its own means of
subsistence.’ During the hearings, it was noted that
early drafts of the International Law Commission’s
(“ILC”) Draft Articles on State Responsibility
included this qualification, but that it was not
retained in the Articles as adopted. That does not
alter the fundamental human rights law rule of
118 Ethiopia’s Damages Claims, paras. 18-19; Eritrea’s Damages Claims, para. 18.
119 Ethiopia’s Damages Claims, paras. 18; Eritrea’s Damages Claims, para. 18.
120 Ethiopia’s Damages Claims, para. 19; Eritrea’s Damages Claims, para. 19.
49
common Article I(2) in the Covenants, which
unquestionably applies to the Parties.
“Similarly, Article 2(1) of the ICESCR obliges both
Parties to take steps to achieve the ‘full realization’
of rights recognized by that instrument. The
Commission is mindful that in its General
Comments, the Committee on Economic, Social
and Cultural Rights has identified a range of steps
to be taken by States where necessary, inter alia, to
improve access to health care, education … and
resources to improve the conditions of subsistence.
These General Comments have been endorsed and
taken as guides to action by many interested
observers and the United Nations’ development
agencies.121
“Awards of compensation of the magnitude sought
by each Party would impose crippling burdens
upon the economies and populations of the other,
notwithstanding the obligations both have accepted
under the Covenants.”122
2.59 Ethiopia argued that the Commission need not be concerned about
these impacts because the obligation to pay would fall on the Government
of Eritrea, not its people. The Commission rejected the argument, stating:
“Huge awards of compensation by their nature would require large
diversions of national resources from the paying country—and its citizens
121 U.N. Committee on Economic, Social and Cultural Rights, Report on the Fifth
Session (26 Nov. – 14 Dec. 1990), Annex III, General Comment No. 3 (1990): the Nature
of States Parties’ Obligations (art. 2, para. 1 of the Covenant), U.N. Doc. E/1991/23
(1991), p. 86. Vol. II, Annex 17.
122 Ethiopia’s Damages Claims, paras. 19-21; Eritrea’s Damages Claims, paras. 19-21
(emphasis added).
50
needing health care, education and other public services—to the recipient
country.”123
2.60 Even though Eritrea was found responsible for violating both jus
ad bellum and jus in bello, the Commission nevertheless held that “an
award of compensation should be limited” to ensure that the financial
burden imposed on Eritrea “would not be so excessive, given its economic
condition and its capacity to pay, as to compromise its ability to meet its
people’s basic needs.”124 In reaching this conclusion, the EECC gave
significant weight Eritrea’s ranking among countries in the world in terms
of development in the U.N. Human Development Report.125
2.61 The Commission observed that its decision in this respect was
based on the “prevailing practice of States in the years since the Treaty of
Versailles [which] has been to give very significant weight to the needs of
the affected population in determining amounts sought as post-war
reparations.”126
123 EECC, Decision No. 7, pp. 6-7.
124 Ethiopia’s Damages Claims, paras. 22, 313.
125 Ethiopia’s Damages Claims, para. 18.
126 EECC, Decision No. 7, pp. 6-7.
51
2.62 Any Award of compensation either to Uganda or the DRC can
neither exceed the payment capacity of the responsible State or cause
serious injury to the paying State’s population.
F. Compensation Does Not Cover Damages the Injured State
Could Have Avoided
2.63 A further element affecting the scope of compensation is the duty
to mitigate damage.127 Even the wholly innocent victim of wrongful
conduct is expected to act reasonably when confronted by the injury.128 A
failure to mitigate by the injured State may preclude recovery to that
extent.129
2.64 This point was clearly articulated by the Court in Gabcikovo-
Nagymaros:
“It is a general principle of international law that a
party injured by the non-performance of another
contract party must seek to mitigate the damages he
has sustained. It would follow from such a principle
that an injured State which has failed to take the
necessary measures to limit the damage sustained
would not be entitled to claim compensation for
that damage which could have been avoided.”130
127 ARSIWA, Art. 31, cmt. 11.
128 Ibid.
129 Ibid.
130 Gabčíkovo-Nagymaros Project, para. 80.
52
2.65 Neither Uganda nor the DRC can therefore claim full
compensation for damage which could have been avoided had they
fulfilled their duty to mitigate.
G. A State May Not Recover Full Compensation for Damages to
Which It Contributed
2.66 In the determination of the extent of compensation, international
law requires that account be taken of “the contribution to the injury by
wilful or negligent action or omission of the injured State or any person or
entity” in relation to which compensation is sought.131 This is consonant
with the principle that compensation is due for only the damage directly
caused by an internationally wrongful act. It is also “consistent with
fairness as between the responsible State and the victim of the breach.”132
2.67 The relevance of contributory fault to determining the extent of
compensation is widely recognised.133 In S.S. Wimbledon, a question
arose as to whether there had been any contribution to the injury suffered
as a result of the ship harboring at Kiel for some time, following refusal of
131 ARSIWA, Art. 39.
132 Ibid., Art. 39, cmt. 2.
133 In Delagoa Bay Railway, the arbitrators noted that: “All the circumstances that can be
adduced against the concessionaire company and for the Portuguese Government
mitigate the latter’s liability and warrant…a reduction in reparation.” Delagoa Bay
Railway (Great Britain, USA/Portugal), Award (13 June 1891), cited in ARSIWA, Art.
39, cmt. 4.
53
passage through the Kiel Canal, before taking an alternative course. The
PCIJ implicitly acknowledged that the captain’s conduct could affect the
amount of compensation payable, although it held that the captain had
acted reasonably in the circumstances.134
2.68 In LaGrand, Germany delayed in asserting that there had been a
breach and in instituting proceedings. The Court noted that “Germany
may be criticized for the manner in which these proceedings were filed
and for their timing,” and stated that it would have taken this factor,
among others, into account “had Germany’s submission included a claim
for indemnification.”135
2.69 It follows that the amount of compensation to which either Party
may be entitled has to reflect the contribution to the injury by the injured
Party or any person or entity in relation to whom compensation is sought.
134 S.S. “Wimbledon”, p. 31.
135 LaGrand Case (Germany v. United States of America), Judgment, I.C.J. Reports
2001, paras. 57, 116.
54
55
CHAPTER 3
UGANDA’S REQUEST FOR REPARATION ON ITS COUNTERCLAIMS
3.1 In this Chapter, Uganda presents its request for reparation relating
to its counter-claims having regard to the relevant rules of international
law elaborated in Chapter II. This Chapter consists of four sections.
Section I discusses the Court’s findings pertinent to Uganda’s counterclaims.
Section II sets forth Uganda’s claim for reparation for the
mistreatment of Ugandan diplomats and other nationals. Section III
addresses reparation for physical damage caused to Uganda’s diplomatic
premises. Finally, Section IV deals with reparation for property seized
from the diplomatic premises.
I. The Court’s Findings with Respect to the DRC’s Wrongful Acts
3.2 In its 2005 Judgment, the ICJ upheld Uganda’s second counterclaim
relating to the attacks on and seizure of the Ugandan diplomatic
premises in Kinshasa, and the maltreatment of Ugandan diplomats and
other nationals. In paragraph 12 of the Dispositif, the Court unanimously
found that:
“the Democratic Republic of the Congo, by the
conduct of its armed forces, which attacked the
Ugandan Embassy in Kinshasa, maltreated
Ugandan diplomats and other individuals on the
56
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
from 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.”
3.3 In paragraph 13 of the Dispositif, the Court accordingly
determined “that the Democratic Republic of the Congo is under
obligation to make reparation to the Republic of Uganda for the injury
caused.”136
3.4 As with the DRC’s claims against Uganda, the Parties were first
afforded an opportunity to attempt to reach agreement on the question of
the reparation due. Failing such agreement, “the question of reparation
due to the Republic of Uganda shall be settled by the Court[.]”137 As
explained in Chapter 1, the Parties failed to reach any agreement.
3.5 The nature and extent of the reparation the DRC owes to Uganda
must, of course, be determined by reference to the findings of fact and
conclusions of law reached by the Court in the 2005 Judgment. There, the
Court expressly found that:
136 Armed Activities (2005), Dispositif, para. 13.
137 Ibid., Dispositif, para. 14.
57
• “[T]here is sufficient evidence to prove that there were attacks
against the Embassy and acts of maltreatment against Ugandan
diplomats at Ndjili International Airport.”138
• The Embassy of Uganda was the subject of a “long-term
occupation … by Congolese forces.”139
• “Acts of maltreatment by DRC forces of persons within the
Ugandan Embassy were necessarily consequential upon a
breach of the inviolability of the Embassy premises prohibited
by Article 22 of the Vienna Convention on Diplomatic
Relations. This is true regardless of whether the persons were
or were not nationals of Uganda or Ugandan diplomats.”140
• “[T]here is evidence that some Ugandan diplomats were
maltreated at Ndjili International Airport when leaving the
country.” 141
• “In summary, the Court concludes that, through the attacks by
members of the Congolese armed forces on the premises of the
Ugandan Embassy in Kinshasa, and their maltreatment of
persons who found themselves at the Embassy at the time of
the attacks, the DRC breached its obligations under Article 22
of the Vienna Convention on Diplomatic Relations. The Court
further concludes that by the maltreatment by members of the
138 Ibid., para. 334.
139 Ibid., para. 336.
140 Ibid., para. 338.
141 Ibid., para. 339.
58
Congolese armed forces of Ugandan diplomats on Embassy
premises and at Ndjili International Airport, the DRC also
breached its obligations under Article 29 of the Vienna
Convention.”142
• “[T]he Status Report on the Residence and Chancery, jointly
prepared by the DRC and Uganda under the Luanda
Agreement, provides sufficient evidence for the Court to
conclude that Ugandan property was removed from the
premises of the official residence and Chancery. It is not
necessary for the Court to make a determination as to who
might have removed the property reported missing. The
Vienna Convention on Diplomatic Relations not only prohibits
any infringements of the inviolability of the mission by the
receiving State itself but also puts the receiving State under an
obligation to prevent others—such as armed militia groups—
from doing so.”143
• “The Court notes that, at this stage of the proceedings, it
suffices for it to state that the DRC bears responsibility for the
breach of the inviolability of the diplomatic premises, the
maltreatment of Ugandan diplomats at the Ugandan Embassy
in Kinshasa, the maltreatment of Ugandan diplomats at Ndjili
International Airport, and for attacks on and seizure of
142 Ibid., para. 340.
143 Ibid., para. 342.
59
property and archives from Ugandan diplomatic premises, in
violation of international law on diplomatic relations.” 144
3.6 On the basis of these findings, all of which constitute res judicata
binding upon the Parties, the DRC has an obligation to make reparation
for categories of injury:
1. Loss, damage or injury arising from the maltreatment
of persons, in particular:
i. Ugandan diplomats and other nationals
mistreated by Congolese forces on its
diplomatic premises; and
ii. Ugandan diplomats at Ndjili Airport.
2. Loss, damage or injury to the buildings located on the
diplomatic premises as a result of their invasion,
seizure and long-term occupation by Congolese forces.
This includes renovation and repair costs.
3. The loss of public and personal property seized from
the diplomatic premises.
3.7 Uganda’s reparation claim in regard to each of these categories of
injury is set forth in the sections that follow.
144 Ibid., para. 344.
60
II. Loss, Damage or Injury to Ugandan Diplomats and Other
Persons Resulting from the DRC’s Wrongful Acts
3.8 Uganda considers the mistreatment of its diplomats and other
persons on its diplomatic premises in Kinshasa, as well as the
maltreatment of its diplomats at Ndjili Airport, to be a matter of singular
concern. The principle of the inviolability of the premises of diplomatic
missions and the persons of diplomatic agents is of a “fundamental
character.”145
3.9 In the Tehran Hostages case, the Court made a point of stressing
that “the obligations laid on States by [the Vienna Convention on
Diplomatic Relations] are of cardinal importance for the maintenance of
good relations between States in the interdependent world of today.”146
There is “no more fundamental prerequisite for the conduct of relations
between States,” the Court said, “than the inviolability of diplomatic
envoys and embassies, so that throughout history nations of all creeds and
cultures have observed reciprocal obligations for that purpose.” 147
145 United States Diplomatic and Consular Staff in Tehran (United States of America v.
Iran), Judgment, I.C.J. Reports 1980 (“United States Diplomatic and Consular Staff in
Tehran”), para. 86.
146 Ibid., para. 91.
147 Ibid.
61
3.10 “The institution of diplomacy,” the Court continued, “has proved
to be an instrument essential for effective co-operation in the international
community, and for enabling States, irrespective of their differing
constitutional and social systems, to achieve mutual understanding and to
resolve their differences by peaceful means.”148
3.11 Uganda considers that, because the injuries done to the individual
persons who suffered mistreatment at the hands of Congolese forces are at
least partially material in nature, they are potentially amendable to
monetary compensation. Nevertheless, Uganda recognises the inherent
difficulty in providing sufficiently clear and credible evidence,
particularly evidence that is contemporary to the events in question, to
quantify the extent of the damages with sufficient certainty. Under the
circumstances, Uganda considers that the Court’s formal findings of the
DRC’s international responsibility in the 2005 Judgment constitute an
appropriate form of satisfaction, providing reparation for the consequent
injury.
3.12 The injury suffered by the Ugandan State as a result of the DRC’s
mistreatment of its nationals on Uganda’s diplomatic premises and its
diplomats at Ndjili Airport is most appropriately viewed as non-material
148 Ibid.
62
in nature. These injuries constitute an affront to Uganda’s dignity and a
deprivation of the rights accorded it by the Vienna Convention on
Diplomatic Relations.
3.13 In this respect, they are comparable to those injuries inflicted by
Ethiopia’s unlawful searches of Eritrean diplomatic personnel as they
departed Ethiopia, and Eritrea’s unlawful searches of Ethiopian
diplomatic personnel as they departed Eritrea at issue before the EECC.149
Just as the Commission found satisfaction by way of a declaratory
judgment the appropriate form of reparation there, so too Uganda
considers it appropriate in this case.
3.14 Uganda observes further that its choice of satisfaction as an
appropriate and sufficient form of reparation in respect of these elements
of its counter-claim is also motivated by the desire to promote an
atmosphere conducive to the further improvement of bilateral relations
between the Parties, an important goal the Parties themselves repeatedly
emphasised during the course of their negotiations and again very recently
in the 4 August 2016 Joint Communiqué signed in Uganda.
149 Eritrea’s Damages Claims, para. 386 & IX(18); Ethiopia’s Damages Claims, paras.
387-88 & XII(C).
63
III. Loss, Damage or Injury Relating to Uganda’s Diplomatic
Premises Resulting from the DRC’s Wrongful Acts
3.15 This element of Uganda’s counter-claims consists of the
renovation and repair costs necessitated by the DRC’s invasion and longterm
occupation of the diplomatic premises.
3.16 When Congolese forces invaded, seized and occupied Uganda’s
diplomatic premises, it comprised two locations: (1) the Ambassador’s
Residence (at No. 12 Avenue de l’Ouganda) consisting of one two-story
building; and (2) the Chancery (at No. 17 Tombalbaye Avenue de
Travailure) consisting of a main, three-story building and two detached,
two-story buildings).
3.17 By the time Uganda regained access to the Embassy buildings in
April 2005, they were in a ruinous condition. Indeed, they were in that
condition long before 2005. During the pleadings at the merits phase, the
DRC did not object to Uganda’s statement that as of September 2002 the
Embassy buildings were already “in a state of total disrepair.”150 The
subsequent three years of the Congolese occupation caused further serious
structural and other damage of those buildings, as demonstrated by
150 Armed Activities (2005), para. 312.
64
contemporaneous photographs of the former Chancery included in
Annex 4.151
1. Renovation and Repair Costs Incurred for the Rehabilitation of the
Ambassador’s Residence
3.18 The costs Uganda incurred to repair the damage done to the
Ambassador’s Residence total US$ 93,585. Nevertheless, Uganda is
unable to present sufficiently clear, credible and convincing evidence
necessary to meet the relevant evidentiary standards to prove that amount.
3.19 Uganda has, and respectfully submits herewith, two bills of
quantities prepared by the construction company “GECODES” in the
amount of US$ 43,475152 and US$ 28,325,153 respectively. It does not
currently have two other bills of quantities that total another US$ 21,785.
3.20 Uganda also has a letter from GECODES to the Embassy of
Uganda dated 29 July 2008 requesting payment from Uganda in the
amount of US$ 93,585.154 Although this is the amount that Uganda in fact
151 Photographs of Damages to Uganda’s Chancery Located at No. 17 Tombalbaye
Avenue de Travailure, Gombe, Kinshasa, Vol. II, Annex 4.
152 GEOCODES sprl, Travaux de Rehabilitation de la Residence de l’Ambassadeur de la
Republique de l’Ouganda a Kinshasa (July 2007). Vol. II, Annex 12.
153 GEOCODES sprl, Devis Supplémentaire des Travaux de la Réhabilitation de la
Residence de l’Ambassadeur de l’Ouganda a Kinshasa - Gombe R.D.C. (Jan. 2008). Vol.
II, Annex 13.
154 Letter from GEOCODES sprl to the Ambassador of Uganda to Democratic Republic
of Congo (29 July 2008). Vol. II, Annex 14.
65
has paid, it has also been unable to locate wire transfer receipts to prove
the fact of payment.
3.21 Because requisite evidence is lacking to conclusively establish the
extent of the renovation and repair costs incurred and paid for the
rehabilitation of the former Ambassador’s residence, Uganda considers
that the Court’s formal findings of the DRC’s international responsibility
in the 2005 Judgment constitute an appropriate form of satisfaction,
providing reparation for the injury suffered.
2. Renovation and Repair Costs Incurred for the Rehabilitation of the
Chancery
3.22 The costs Uganda has incurred and paid to repair the three
damaged Chancery buildings total US$ 1,198,532.94. This amount is
evidenced by itemised invoices sent to Uganda by the construction
company M/S SAFRICAS for the renovation and repair work it performed
on the Chancery buildings, as well as wire transfer receipts confirming the
payment of those invoices by Uganda. These materials are submitted
herewith as Annex 15.
3.23 For the convenience of the Court, all itemised invoices and wire
transfer receipts are summarised in Table 1 on the following page.
66
Table 1: Summary of Payments by Uganda’s Embassy in Respect of
Renovation of the Ugandan Chancery Buildings located at No. 17
Tombalbaye Avenue de Travailure, Gombe, Kinshasa
Payee Dates of
Invoices
Payment
No.
Dates of
Payments
Payment
Description
Amount (US
Dollars)
Total Certificate
Amount
Safricas
Congo
S.A.R.L.
9/18/2013
PV-1503 9/26/2013 Certificate 1 for
Advance Payment
107,988.00
247,988.00
Safricas
Congo
S.A.R.L.
PV-1504 9/27/2013 Certificate 2 for
Advance Payment
140,000.00
Safricas
Congo
S.A.R.L.
1/24/2014 PV-1980 2/6/2014 Certificate 2 for
Work Done
80,809.98 80,809.98
Safricas
Congo
S.A.R.L
8/15/2014
PV-2712 9/2/2014 Certificate 3 for
Work Done
100,000.00
196,291.70
Safricas
Congo
S.A.R.L.
PV-2771 9/30/2014 Certificate 3 for
Work Done
96,291.70
Safricas
Congo
S.A.R.L.
3/05/2015
PV-3174 4/21/2015 Certificate 4 for
Work Done
130,000.00
291,740.28
Safricas
Congo
S.A.R.L.
PV-3184 4/27/2015 Certificate 4 for
Work Done
161,740.28
Safricas
Congo
S.A.R.L.
10/20/2015
PV-3492 10/30/2015 Certificate 5 for
Work Done
76,581.00
Safricas 267,861.88
Congo
S.A.R.L.
PV-3539 12/5/2015 Certificate 5 for
Work Done
95,000.00
Safricas
Congo
S.A.R.L.
PV-3722 3/9/2016 Certificate 5 for
Work Done
40,000.00
Safricas
Congo
S.A.R.L.
PV-3819 4/26/2016 Certificate 5 for
Work Done
56,280.88
Safricas
Congo
S.A.R.L.
6/15/2016
PV-3955 6/26/2016 Certificate 6 for
Work Done
101,253.07
113,841.98
Safricas
Congo
S.A.R.L.
PV-3956 6/30/2016 Certificate 6 for
Work Done
12,588.91
TOTAL 1,198,533.82 1,198,533.82
67
3.24 The evidence thus clearly and convincingly shows that Uganda’s
renovation and repair costs for the Chancery as of the time of the
Submission of this Memorial is US$ 1,198,532.94.
3.25 That said, while undertaking repair work to the Chancery, Uganda
expanded the available floor space beyond that of the original buildings.
Specifically, it added additional spaces measuring 238 sq metres155, or
18% of the current total area of the Chancery buildings. Because these
additions were not necessitated by the DRC’s wrongful acts, but rather
reflects an independent decision on the part of Uganda, Uganda does not
consider it legally appropriate to claim compensation for the costs related
to the addition of these spaces.
3.26 Deducting 18% from the total renovation and repair costs, the
actual amount Uganda incurred and paid to repair the three damaged
Chancery buildings as a result of the DRC’s wrongful acts totals
US$ 982,797.73.
*
155 Ministry of Foreign Affairs of Uganda, Letter to the Solicitor General, Ministry of
Justice and Constitutional Affairs, in regard to measurements for the Uganda renovated
building located at plot 17 avenue Tombalbaye, District of Gombe, City of Kinshasa,
Democratic Republic of Congo (26 Sep. 2016). Voll. II, Annex 5-A.
68
3.27 Finally, as described above, the DRC returned Uganda’s Chancery
and the Ambassador Official Residence in unusable condition.156 They
were unfit for any purpose. While they were being rehabilitated, Uganda
was therefore required to rent properties to serve as the Chancery, and to
house the Ambassador and other diplomats.
3.28 However, for the reasons explained in Chapter II, Uganda
considers that there is no “direct and certain causal nexus”, as required
under international law, between the DRC’s wrongful acts and the lease
expenses Uganda incurred. Because “the subject matter of reparation is,
globally, the injury resulting from and ascribable to the wrongful act,”157
and not “any and all consequences flowing from an internationally
wrongful act,”158 Uganda does not claim any compensation for those
consequential damages.
IV. Loss of Property Wrongfully Seized from Uganda’s
Diplomatic Premises
3.29 In its 2005 Judgment, the Court found that “Ugandan property was
removed from the premises of the official residence and Chancery” and
that the DRC bore international responsibility for “the seizure of property
156 See supra Chapter 3, para. 3.17.
157 ARSIWA, Art. 31, cmt. 1.
158 Ibid.
69
from Ugandan diplomatic premises.”159 The DRC is therefore obligated to
make reparation to Uganda for the losses caused.
3.30 The property removed from the premises of the official residence
and Chancery comprised both the state property of Uganda and the
personal property of Ugandan diplomats residing in the diplomatic
premises. Uganda previously prepared a detailed list that itemised all
seized items and stated their values. This list was submitted as Annex 92
to Uganda’s Counter-Memorial submitted to the Court in April 2001. For
convenience, it is attached again to this Memorial as Annex 3.160 The total
value of the items indicated is US$ 1,085,660 (all values stated are as of
1998).
3.31 Uganda accepts that the list of property is, on its own, insufficient
to prove the value of the listed property.161 Sufficient proof would require
the submission of invoices, receipts, insurance documents or other similar
documents showing the value of the listed property.
3.32 Uganda is, however, unable to provide such evidence due in large
measure to the circumstances surrounding the departure of Uganda’s
159 Armed Activities (2005), paras. 342, 344.
160 Loss of Uganda Government Property at Uganda Embassy, Kinshasa. Vol. II, Annex
3.
161 Diallo (2012), paras. 28, 32.
70
diplomatic personnel from Kinshasa in 1998 and the DRC’s removal of
documents from the “archives and working files” of Uganda’s diplomatic
premises “in violation of its obligations under Article 24 of the Vienna
Convention on Diplomatic relations.”162
3.33 Because requisite evidence is lacking to conclusively establish the
value of the property wrongfully seized by the DRC from Uganda’s
diplomatic premises, Uganda considers that the Court’s formal findings of
the DRC’s international responsibility in the 2005 Judgment constitute an
appropriate form of satisfaction, providing reparation for the injury
suffered.
*
3.34 For the foregoing reasons, Uganda respectfully submits that the
clear, credible and convincing evidence demonstrates that the DRC is
obligated to make monetary compensation to Uganda in the total amount
of US$ 982,797.73.
162 Armed Activities (2005), para. 343.
71
SUBMISSIONS
On the basis of the facts and law set forth in this Memorial, Uganda
respectfully requests the Court to adjudge and declare that:
1) With respect to the loss, damage or injury arising from (a) the
maltreatment of persons by Congolese forces on Uganda’s
diplomatic premises and of Ugandan diplomats at Ndjili Airport;
(b) the invasion, seizure and long-term occupation of the residence
of the Ambassador of Uganda in Kinshasa; and (c) the seizure of
public and personal property from Uganda’s diplomatic premises
in Kinshasa, the Court’s formal findings of the DRC’s
international responsibility in the 2005 Judgment constitute an
appropriate form of satisfaction, providing reparation for the injury
suffered.
2) With respect to the loss, damage or injury arising from the
invasion, seizure and long-term occupation of Uganda’s Chancery
compound in Kinshasa, the DRC is obligated to make monetary
compensation to the Republic of Uganda in the total amount of
US$ 982,797.73.

LIST OF ANNEXES
VOLUME II
TREATIES & AGREEMENTS
Annex 1 Ngurdoto-Tanzania Agreement between the Democratic
Republic of the Congo and the Republic of Uganda on Bilateral
Cooperation (8 Sept. 2007)
Annex 2 Joint Communiqué Issued by the Democratic Republic of the
Congo and the Republic of Uganda Held on 4th August 2016,
at Mweya Safari Lodge, Kasese District, Uganda (4 Aug. 2016)
UGANDA GOVERNMENT DOCUMENTS
Annex 3 Loss of Uganda Government Property at Uganda’s Embassy,
Kinshasa
Annex 4 Photographs of Damages to Uganda’s Chancery Located at
No. 17 Tombalbaye Avenue de Travailure, Gombe, Kinshasa
Annex 5 Government of Uganda, Response by Uganda on the Evaluation
of the Evidence Submitted by the Democratic Republic of Congo
in Support of Her Claim Arising out of the ICJ Judgment of
December 2005 (24-29 Nov. 2014)
Annex 5-A Ministry of Foreign Affairs of Uganda, Letter to the Solicitor
General, Ministry of Justice and Constitutional Affairs, in
regard to measurements for the Uganda renovated building
located at plot 17 avenue Tombalbaye, District of Gombe, City
of Kinshasa, Democratic Republic of Congo (26 Sep. 2016)
JOINT UGANDA-DRC DOCUMENTS
Annex 6 Government of Uganda and the Government of the Democratic
Republic of Congo, Agreed Minutes of the Ministerial Level
Meeting between the Republic of Uganda and the Democratic
Republic of Congo (25 May 2010)
Annex 7 Government of Uganda and the Government of the Democratic
Republic of Congo, Minutes of the Ministerial Meeting between
the Republic of Uganda and the Democratic Republic of Congo
(13-14 Sept. 2012)
Annex 8 Government of Uganda and the Government of the Democratic
Republic of Congo, Minutes of the 3rd Meeting of Uganda and
Congolese Experts on the Implementation of the Ruling of the
International Court of Justice of 19 December 2005 (14 Dec.
2012)
Annex 9 Government of Uganda and the Government of the Democratic
Republic of Congo, Agreed Minutes of the 2nd Ministerial
Meeting of the Ad Hoc Committee of Uganda/Democratic
Republic of Congo on the Implementation of the Ruling of the
ICJ (2005) (24-27 Nov. 2014)
Annex 10 Government of Uganda and the Government of the Democratic
Republic of Congo, The Joint Report of the Meeting of Experts
of the Democratic Republic of Congo and the Republic of
Uganda on the Implementation on the Judgment of the ICJ of
19th December 2005 (13-17 Mar. 2015)
Annex 11 Government of Uganda and the Government of the Democratic
Republic of Congo, The Agreed Minutes of the 4th Meeting of
Ministers of the Democratic Republic of Congo and the
Republic of Uganda on the Implementation of the Judgment of
the ICJ of 19th December 2005 (17-19 Mar. 2015)
THIRD PARTY DOCUMENTS, INCLUDING INVOICES
AND WIRE TRANSFER RECEIPTS
Annex 12 GEOCODES sprl, Travaux de Rehabilitation de la Residence de
l’ambassadeur de la Republique de l’Ouganda a Kinshasa
(July 2007)
Annex 13 GEOCODES sprl, Devis Supplementaire des Travaux de la
Rehabilitation de la Residence de l’Ambassadeur de l’Ouganda
a Kinshasa - Gombe R.D.C. (Jan. 2008)
Annex 14 Letter from GEOCODES sprl to the Ambassador of Uganda to
Democratic Republic of Congo (29 July 2008)
Annex 15 SAFRICAS Invoices and Wire Transfer Receipts of Payments
by Uganda’s Embassy in Respect of Renovation of the Ugandan
Chancery Located at No. 17 Tombalbaye Avenue de Travailure,
Gombe, Kinshasa (2013-2016)
Annex 16 Intentionally Omitted
UNITED NATIONS DOCUMENTS
Annex 17 U.N. Committee on Economic, Social and Cultural Rights,
Report on the Fifth Session (26 Nov. – 14 Dec. 1990), Annex III,
General Comment No. 3 (1990): the nature of States parties’
obligations (art. 2, para. 1 of the Covenant), U.N. Doc.
E/1991/23 (1991)
Annex 18 “Ban Welcomes Signing of Declaration between DR Congo-
M23”, United Nations News Centre (13 Dec. 2013)
ACADEMIC ARTICLES & BOOKS
Annex 19 J.C. Witenberg, “La théorie des preuves devant les juridictions
internationals”, 56 Recueil des Cours 1 (1936-II)
Annex 20 Marjorie Whiteman, Damages in International Law (1943)
Annex 21 Jean-Flavien Lalive, “Quelques remarques sur la preuve devant
la Cour permanente et la Cour internationale de Justice”,
7 Annuaire suisse de droit international 77 (1950)
Annex 22 William Bishop, “State Responsibility”, 2 Recueil des Cours 384
(1965)
Annex 23 Durward Sandifer, Evidence before International Tribunals
(1975)
Annex 24 Keith Highet, “Evidence, the Court, and the Nicaragua Case”,
81 American Journal of International Law 1 (1987)
Annex 25 Eduardo Valencia-Ospina, “Evidence before the International
Court of Justice”, 1 International Law Forum 202 (1999)
Annex 26 Chittharanjan Amerasinghe, Evidence in International Litigation
(2005)
Annex 27 Maurice Kamto, “Les moyens de preuve devant la Cour
internationale de Justice à la lumière de quelques affaires
récentes portées devant elle”, 49 German Yearbook of
International Law 259 (2006)
Annex 28 Richard Falk, “Reparations, International Law, and Global
Justice”, in THE HANDBOOK OF REPARATIONS (P. de Greiff ed.,
2006)
Annex 29 Ruth Teitelbaum, “Recent Fact-finding Developments at the
International Court of Justice”, 6 Law and Practice of
International Courts and Tribunals 119 (2007)
Annex 30 Christian Tomuschat, “Reparations in Favour of Individual
Victims of Gross Violations of Human Rights and International
Humanitarian Law”, in PROMOTING JUSTICE, HUMAN RIGHTS
AND CONFLICT RESOLUTION THROUGH INTERNATIONAL LAW,
LIBER AMICORUM LUCIUS CAFLISCH (M. Kohen ed., 2007)
Annex 31 Stephan Wittich, “Punitive Damages”, in THE LAW OF
INTERNATIONAL RESPONSIBILITY (J. Crawford et al. eds., 2010)
Annex 32 P. Tomka & V.-J. Proulx, “The Evidentiary Practice of the
World Court” in LIBER AMICORUM GUDMUNDUR EIRIKSSON
(J. C. Sainz-Borgo ed., forthcoming 2016)
NEWSPAPER REPORTS
Annex 33 “Eighth Pleinary Meeting Between the DR Congo Government
and M23”, International Conference on the Great Lakes Region
(11 Jan. 2013)