Counter-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
COUNTER-MEMORIAL OF UGANDA ON REPARATION
VOLUME I
6 FEBRUARY 2018

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Table of Contents
C HAPTER 1 INTRODUCTION ......................................................................... 1
I. The 2005 Judgment ............................................................. 1
II. Post-Judgment Efforts to Settle the Case ........................... 7
III. War Reparations in Historical and Economic
Perspective ........................................................................ 8
IV. Structure of the Counter-Memorial ................................ 17
CHAPTER 2 THE CONTEXT AND SCOPE OF UGANDA’S INTERVENION ........ 23
I. The Historical Background to the 1998 Conflict .............. 24
A. Colonisation and the Creation of Ethnic and Land
Conflicts ............................................................... 24
B. Post-Independence Authoritarian Rule and Economic
Decline ................................................................. 29
C. The Increase in Ethnic Tensions During the 1990s ... 37
D. The Impact of Civil Wars in the Region .................... 38
II. Uganda’s Role in the 1998 Conflict ................................ 40
A. The Parties to the Conflict ......................................... 40
B. Uganda’s Role in Ituri ................................................ 46
C. The Post-War Situation .............................................. 51
CHAPTER 3 SYSTEMATIC FLAWS IN THE DRC’S APPROACH TO EVIDENCE ............................................................................... 55
I. The DRC Bears the Burden of Proof .............................. 60
II. To Sustain Its Burden, the DRC Must Present Convincing
Evidence Proving Financially Assessable Harm with a
High Level of Certainty ................................................... 64
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A. The Requirement to Present Convincing Evidence
Proving Specific Harm with a High Level of
Certainty ..................................................................... 65
B. The Requirement That the Harm Be Financially
Assessable .................................................................. 73
C. The Distinction between Traditional Inter-State Claims
Proceedings and Specialised Techniques of
Contemporary Mass Claims Programs ...................... 75
III. The DRC Relies upon Evidence That Is Deeply Flawed
and Not Convincing ........................................................ 80
A. The DRC Systematically Fails to Present Evidence
Related to Specific Harms Caused by Uganda and the
Valuation of Such Harms ........................................... 80
B. The DRC’s Systematic Failure to Present Evidence
That Connects to and Supports Assertions Contained
in Its Memorial ........................................................... 84
C. Defects in the Main Types of General Information
Presented by the DRC ................................................ 85
1. United Nations Reports ..................................... 87
2. NGO Reports .................................................... 98
3. Materials Collected by the DRC for Purposes of
Litigation ...................................................... 101
CHAPTER 4 SYSTEMATIC FLAWS IN THE DRC’S APPROACH TO THE LAW ...................................................................................... 111
I. The DRC Ignores the Requirements to Prove Specific
Actions of Uganda and the Existence of a Causal
Connection between Those Actions and the Harm It
Alleges ........................................................................... 111
A. The DRC Must Prove the Specific Actions of Uganda
Falling within the Scope of the Court’s General
Findings in 2005 ...................................................... 112
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B. The DRC Must Also Prove the Causal Nexus between
Each Specific Action of Uganda and the Harm It
Alleges ..................................................................... 116
1. The Requirement of a Direct and Certain Causal
Nexus ........................................................... 116
2. The Causal Nexus Requirement Applies to
Violations of Obligations of Due Diligence ... 121
3. The Causal Nexus Requirement Also Applies to
Violations of the Principles Against the Use of
Force and Non-intervention ............................ 122
C. The DRC Memorial Fails to Prove Either Specific
Actions of Uganda Falling within the Scope of the
Court’s General Findings or the Required Causal
Nexus ....................................................................... 125
D. The Proper Approach to Attribution and Causality . 129
1. Acts of the Ugandan Military That Directly
Caused Harm ................................................ 129
2. Uganda’s Support to Rebel Groups ................ 129
3. Uganda’s Violations of Its Due Diligence
Obligations ................................................... 131
4. Uganda’s Violations of Use of Force and Nonintervention
Norms ...................................... 133
II. The DRC Essentially Asks the Court to Decide the Issue
of Compensation Ex Aequo et Bono, Which It Cannot
Do ................................................................................. 135
A. The DRC Disregards International Law regarding
Reparations for Inter-State Claims.......................... 135
B. The DRC’s Claims Systematically Rely on
Unexplained Percentages, Discounts or Multipliers
That Are Asserted to Be “Reasonable” or
“Equitable” ............................................................... 145
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C. The Court Lacks Power to Decide This Case Ex Aequo
et Bono ............................................................... 149
III. The DRC Essentially Asks the Court to Award Punitive
Damages, Which It Also Cannot Do ........................... 152
IV. The DRC Cannot Obtain Compensation That Exceeds
the Payment Capacity of Uganda ................................. 157
CHAPTER 5 THE DRC’S CLAIMS RELATING TO LOSS OF LIFE ARE METHODOLIGICALLY FLAWED AND UNSUPPORTED BY EVIDENCE ............................................................................. 161
I. The DRC’s Claims Are Not Based on the Standard
Method or Evidence for Proving the Existence and
Valuation of Deaths ...................................................... 163
II. The DRC Has Failed to Prove the Extent of the Injury It
Claims concerning the Alleged Loss of Life ............... 166
A. The DRC’s Claim that Uganda Caused 182,000
Deaths in the DRC Is Speculative and
Unsupported ............................................................. 169
The DRC’s Reliance on the IRC’s Retrospective
Mortality Surveys Is Misplaced ...................... 170
The DRC’s Claim that Uganda Is Responsible
for 45% of the the Alleged Deaths that Occurred
Throughout the DRC Is Wholly Arbitrary ...... 181
Other Sources, Including the DRC’s Own
“Evidence”, Disprove the DRC’s Claims
concerning the Number of Deaths in the
DRC ................................................................ 183
B. The Flawed Nature of the DRC’s Claims Are
Highlighted by the Way in Which It Attempts to
Allocate the Number of Deaths by Region. ............. 192
Locations Other than Ituri and Kisangani ....... 193
Ituri .................................................................. 196
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Kisangani ........................................................ 202
Congolese Soldiers.......................................... 211
III. The DRC’s Valuation of the Injury Related to Loss of
Life Is Methodologically Flawed ................................. 213
CHAPTER 6 THE DRC’S CLAIMS RELATING TO PERSONAL INJURIES OTHER THAN LOSS OF LIFE ARE UNSUPPORTED AND METHODOLOGICALLY FLAWED ............................................ 227
I. The DRC’s Claims Are Not Based on Standard Methods
or Evidence for Claiming Compensation for Personal
Injuries .......................................................................... 228
II. The DRC Has Failed to Prove the Extent Personal
Injuries That Were Suffered as a Result of Specific
Actions of Uganda ........................................................ 232
A. The DRC Has Failed to Prove the Number, Nature and
Extent of Physical Injuries That Were Suffered as a
Result of Specific Actions of Uganda ...................... 234
Ituri .................................................................. 235
Kisangani ........................................................ 243
Other Locations (Beni, Butembo and
Gemena) ....................................................... 248
B. The DRC Has Failed to Prove Incidents of Sexual
Violence That Were Suffered as a Result of Specific
Actions of Uganda ................................................... 249
C. The DRC Has Failed to Prove Injury with Respect to
Child Soldiers that was Suffered as a Result of
Specific Actions of Uganda ..................................... 257
D. The DRC Has Failed to Prove Injury with Respect to
Displaced Persons That Was Suffered as a Result of
Specific Actions of Uganda ..................................... 262
1. Ituri .................................................................. 263
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2. Kisangani ........................................................ 265
3. Other Locations (Beni, Butembo and
Gemena) ....................................................... 266
III. The DRC’s Valuation for Personal Injuries Is
Methodologically Flawed ............................................. 267
A. The DRC’s Valuation of Personal Injuries .............. 268
1. Physical Injuries .............................................. 268
2. Sexual Violence .............................................. 270
3. Child Soldiers.................................................. 272
4. Displacement................................................... 272
B. The DRC’s Approach to Valuation of Personal Injury
Damages Is Unsupported by Evidence and
Methodologically Flawed ........................................ 274
CHAPTER 7 THE DRC’S CLAIMS RELATING TO HARM TO PROPERTY ARE UNSUPPORTED BY EVIDENCE AND METHODOLOGICALLY FLAWED ................................................................................ 279
I. The DRC’s Claims Are Not Based on the Standard
Method or Evidence for Proving the Existence and
Valuation of Property Damage ..................................... 280
II. The DRC Has Failed to Prove the Extent of the Property
Damages It Claims, and Its Valuation of Those Damages
Is Methodologically Flawed ......................................... 282
A. Ituri ........................................................................... 285
Houses ............................................................. 286
Infrastructure ................................................... 292
Movable Property............................................ 297
B. Kisangani ................................................................. 300
1. Houses ............................................................. 301
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2. Movable Property............................................ 306
3. Educational and Medical Institutions.............. 308
4. Places of Worship ........................................... 311
5. Public Companies ........................................... 314
6. Private Companies .......................................... 324
C. Areas Other Than Ituri and Kisangan (Beni, Butembo
and Gemena) ............................................................ 328
D. The Congolese Army ............................................... 332
CHAPTER 8 THE DRC’S CLAIMS RELATING TO NATURAL RESOURCES ARE UNSUPPORTED BY ITS EVIDENCE AND METHODOLOGICALLY FLAWED ................................................................................ 339
I. The DRC’s Claims Are Not Based on Standard Methods
for Proving the Existence and Valuation of the Damages It
Claims ............................................................................ 340
II. The DRC Has Failed to Prove the Extent of the Harms to
Natural Resources It Claims, and Its Valuation of Those
Harms Is Methodologically Flawed ............................... 345
A. Mineral Resources ................................................... 348
1. The DRC Has Failed to Prove the Existence of
the Alleged Harms Relating to Mineral
Resources ........................................................ 348
2. The DRC’s Valuation of Alleged Damages is
Methodologically Flawed ............................... 382
B. Wildlife .................................................................... 384
1. The DRC’s Has Failed to Prove the Existence of
the Injury to Wildlife It Seeks to Ascribe to
Uganda ............................................................ 386
2. The DRC’s Valuation of Alleged Damages is
Methodologically Flawed ............................... 400
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C. Deforestation ............................................................ 406
1. The DRC’s Has Failed to Prove Any Specific
Acts Attributable to Uganda Resulting in
Deforestation in the DRC................................ 408
2. The DRC’s Valuation of Its Alleged Damages Is
Methodologically Flawed ............................... 417
CHAPTER 9 MACROECONOMIC INJURY .................................................... 421
I. Macroeconomic Injury Claims Like the DRC’s Have
Uniformly Been Rejected in Practice and Case-Law ...... 422
II. The Macroeconomic Injury Is Speculative and Causally
Remote .......................................................................... 427
III. Macroeconomic Injury Does Not Constitute Lucrum
Cessans ......................................................................... 429
IV. The DRC’s Macroeconomic Injury Claim Is Inconsistent
with the 2005 Judgment ............................................... 431
A. The Macroeconomic Injury Claim Fails to Meet the
2005 Judgment’s “Exact injury” Requirement ....... 432
B. The DRC’s Macroeconomic Injury Claim Disregards
the Requirement That It Must “Result” from “Specific
Actions” of Uganda.................................................. 434
C. The DRC’s Macroeconomic Injury Claim Is Premised
on Uganda Being Responsible for a “War of
Aggression”, Which It Is Not................................... 435
V. The DRC Macroeconomic Injury Claim Is Economically
and Methodologically Flawed in Any Event ................ 437
CHAPTER 10 THE DRC IS NOT ENTITLED TO THE OTHER REPARATION IT SEEKS ................................................................................... 445
I. The DRC Is Only Entitled to Simple Interest Calculated
from the Date of a Judgment Ordering Payment of
Compensation .................................................................. 446
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II. The DRC Is Not Entitled to the Additional Satisfaction It
Seeks ............................................................................. 458
A. Satisfaction in the Form of an Order to Investigate and
Prosecute UPDF Officers and Soldiers ................... 460
B. Satisfaction in the Form of an Order to Pay US$ 125
Million for Intangible Harm .................................... 463
III. The DRC Is Not Entitled to Its Costs, Including
Attorneys’ Fees ............................................................. 468
SUBMISSIONS ............................................................................................ 473
CERTIFICATION ............................................................................................ 474
LIST OF ACRONYMS ...................................................................................... 475
LIST OF ANNEXES ......................................................................................... 479

CHAPTER 1
INTRODUCTION
1.1 Pursuant to the Order of the Court dated 6 December 2016 fixing 6 February
2018 as the applicable time-limit, Uganda respectfully submits this Counter-
Memorial responding to the Memorial on reparation submitted by the Democratic
Republic of the Congo (“DRC”) in September 2016.
I. The 2005 Judgment
1.2 The DRC originally instituted these proceedings by Application dated 23
June 1999. In its Application, the DRC asserted a number of claims against Uganda
relating to its presence in and activities on the territory of the DRC. In its 21 April
2001 Counter-Memorial on the merits, 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 the breach of
international obligations it owed with respect to Uganda’s diplomatic mission in
Kinshasa. The Court subsequently authorised the exchange of a second round of
written pleadings.
1.3 After written pleadings, the Court held oral hearings on the merits of the
DRC’s claims and Uganda’s counter-claims in April 2005. The Court thereafter
issued its Judgment on the merits on 19 December 2005 (“2005 Judgment”). In the
2005 Judgment, the Court determined that both Parties were obligated to make
reparation to each other for the injury caused by their respective internationally
wrongful acts.
1.4 Insofar as relevant to this Counter-Memorial, the Court determined in the
dispositif of the 2005 Judgment that Uganda:
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1. “by engaging in military activities against the Democratic Republic of
the Congo on the latter’s territory, by occupying Ituri and by actively
extending military, logistic, economic and financial support to irregular
forces having operated on the territory of the DRC, violated the
principle of non-use of force in international relations and the principle
of non-intervention;”1
2. “by the conduct of its armed forces, which committed acts of killing,
torture and other forms of inhumane treatment of the Congolese civilian
population, destroyed villages and civilian buildings, failed to
distinguish between civilian and military targets and to protect the
civilian population in fighting with other combatants, trained child
soldiers, incited ethnic conflict and failed to take measures to put an end
to such conflict; as well as by its failure, as an occupying Power, to take
measures to respect and ensure respect for human rights and
international humanitarian law in Ituri district, violated its obligations
under international human rights law and international humanitarian
law;”2
3. “by acts of looting, plundering and exploitation of Congolese natural
resources committed by members of the Ugandan armed forces in the
territory of the Democratic Republic of the Congo and by its failure to
comply with its obligations as an occupying Power in Ituri district to
prevent acts of looting, plundering and exploitation of Congolese
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)”), para. 345(1).
2 Ibid., para. 345(3).
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natural resources, violated obligations owed to the Democratic
Republic of the Congo under international law;”3 and
4. “is under obligation to make reparation to the Democratic Republic of
the Congo for the injury caused”.4
1.5 At the outset, Uganda wishes to make clear that it regrets the human
suffering that occurred in the DRC during the troubled years that are the focus of
these proceedings, and looks forward to the consolidation of renewed friendly
relations with its neighbour in the spirit of African brotherhood.
1.6 Taking account of the reparation claims presented in the DRC Memorial,
Uganda also considers it important to underscore several important limitations in
the Court’s findings in 2005.
 First, the scope of the Court’s determinations ratione temporis is
expressly limited to the time period between 7 August 1998 (when
Uganda’s intervention began) and 2 June 2003 (after which Uganda had
left the DRC);5
 Second, the Court expressly declined to find the acts of Jean Pierre
Bemba’s Mouvement de libération du Congo (“MLC”) attributable to
Uganda.6 Nor did the Court find the acts of any other rebel group
operating in the DRC attributable to Uganda;
 Third, although the Court found Uganda responsible for failing to take
measures to ensure respect for human rights and international
3 Ibid., para. 345(4).
4 Ibid., para. 345(5).
5 See ibid., paras. 149, 264.
6 Ibid., para. 161.
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humanitarian law in Ituri, it did not find Uganda directly responsible for
acts committed by others;
 Fourth, while the Court found Uganda responsible for acts committed
by members of the Ugandan military that constituted exploitation of
Congolese natural resources, it declined to find that there was a
“governmental policy of Uganda directed at the exploitation of natural
resources of the DRC or that Uganda’s military intervention was carried
out in order to obtain access to Congolese resources”;7
 Fifth, although the Court found Uganda responsible for failing to
comply with its obligations as an occupying Power in Ituri district to
prevent the acts of others constituting the exploitation of Congolese
natural resources, it did not find Uganda directly responsible for those
acts;8 and
 Sixth, the Court declined to find Uganda even indirectly responsible for
acts constituting the exploitation of natural resources committed by
rebel groups outside Ituri.9
1.7 Uganda emphasises these limitations because, as will be discussed in the
chapters of this Counter-Memorial that follow, the DRC Memorial presses a
number of claims that exceed, in whole or in part, the limitations ratione materiae,
ratione temporis, ratione loci and ratione personae in the 2005 Judgment. For
example, with respect to claims relating to the alleged loss of life, the Memorial
proceeds on the (incorrect) basis that Uganda is responsible for acts of killing
committed by others anywhere in the DRC at any time during the conflict. Uganda
respectfully submits that the DRC cannot ignore the important limitations inherent
7 Ibid., para. 242.
8 Ibid., para. 345(4).
9 Ibid., para. 247.
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in the 2005 Judgment any more than Uganda can deny what the Court actually
decided. The Judgment and the limitations in it equally constitute res judicata.
1.8 Also significant is the Court’s plain statement of what the DRC would be
required to prove at this reparation phase in order to sustain a claim for reparation.
In particular, at paragraph 260 of the 2005 Judgment, the Court held:
“The Court further considers appropriate the request
of the DRC for the nature, form and amount of the
reparation due to it to be determined by the Court,
failing agreement between the Parties, in a
subsequent phase of the proceedings. The DRC
would thus be given the opportunity 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.”10
1.9 Uganda will show in Chapter 3 that this requirement to (1) prove (2) the
exact injury suffered (3) as a result of, (4) specific wrongful acts is entirely
consistent with the Court’s case law on reparation and international practice more
generally. Uganda, in presenting its own Memorial on reparation in respect of its
counter-claims, made every effort to satisfy these strict requirements. Where
Uganda considered that it could not meet these thresholds, it declined to make a
claim for reparation beyond the satisfaction it already received by virtue of the
2005 Judgment.11
1.10 The claims presented in the DRC Memorial, in contrast, fail to make any of
the requisite evidentiary showings. Uganda will demonstrate that the DRC largely
10 Ibid., para. 260 (emphasis added).
11 See, e.g., Memorial of Uganda (hereinafter “UM”), para. 3.33.
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eschews the particularised proof the Court indicated it would require in favour of
highly generalised claims of a speculative nature.
1.11 Using again as an example the DRC’s claims with respect to the alleged
loss of life, the DRC Memorial does not offer any particularised proof. Rather, its
claims are based principally on much-criticised epidemiological studies that
attempted to quantify the number of excess deaths, from all causes, that occurred
throughout the DRC during and after the conflict. The profound flaws in these
studies will be explained in Chapter 5. The point for current purposes is simply that
the DRC makes essentially no effort to prove that specific deaths occurred at
specific places at specific times as a result of specific internationally wrongful acts
of Uganda falling within the general headings identified by the Court in 2005.
Instead, the DRC adopts an approach that is disassociated from the kinds of
evidence the Court previously stated would be required at this reparation phase.
1.12 This failure to take seriously the requirement to prove its claims takes the
DRC into the realm of imaginary numbers, characterised by invented
“percentages”, “distribution keys”, and “multipliers”, all leading to the truly
staggering amount of compensation the DRC claims: roughly US$ 13.5 billion. A
claimant State must be expected to come forward with evidence proving a claim
for monetary compensation to a high degree of certainty in any case, but all the
more when that State claims compensation in such facially exorbitant sums. The
DRC Memorial entirely fails to come forward with any such evidence.
1.13 Moreover, it is apparent in various parts of the DRC Memorial that the DRC
itself does not take its own methodology seriously. It invites the Court instead to
come up with numbers that the Court views as “reasonable” or “equitable,” even
to the point of “fixing a lump sum”. Viewed as a whole, the DRC’s request is not
grounded in law; it is grounded either in a request that the Court decide this matter
7
ex aequo et bono or impose punitive damages on Uganda that have nothing to do
with the harm actually suffered.
1.14 Uganda is mindful of the seriousness of the Court’s determinations in the
2005 Judgment. By the same token, the very seriousness of those findings
underscores the fact that the Court has, in effect, already awarded the DRC
significant reparation in the form of satisfaction.
1.15 The Court did rule in the 2005 Judgment that Uganda is under an obligation
to make reparation for the injury caused. That obligation is, however, specifically
conditioned on the Court’s instruction to the DRC to prove the exact injury it
suffered as a result of specific wrongful acts by Uganda. As Uganda will
demonstrate in the remaining chapters of this Counter-Memorial, despite having
11 years to do so, the DRC has not complied with the Court’s instruction. The DRC
has provided the Court no legal basis to award the compensation it seeks, let alone
in the patently excessive amount requested.
II. Post-Judgment Efforts to Settle the Case
1.16 In its Memorial at this phase, Uganda recalled the Parties’ efforts to settle
the issue of reparation through direct negotiation.12 Uganda need not recapitulate
those efforts here. It does, however, consider it telling that the process of
articulating its claim before the Court has caused the DRC to reduce its demand for
compensation by over 40%, from the roughly US$ 23.5 billion it insisted on in the
negotiations to the approximately US$ 13.5 billion it now seeks. Such a dramatic
12 Ibid., paras. 1.16-1.52.
8
shift confirms that the numbers advanced by the DRC are rooted in tactics, not
reality.
1.17 Uganda also noted in its Memorial that it did not consider the Parties’
negotiations on the issue of reparation exhausted.13 In this respect, Uganda wishes
to advise the Court that negotiations have continued even after the Parties filed
their respective Memorials in September 2016. Specifically, representatives of the
Parties met in Pretoria, South Africa on 22 February 2017 and, very recently, on
30 January 2018. Uganda remains hopeful that it may be possible for the Parties to
settle their differences bilaterally without having to impose further on the Court.
1.18 Nevertheless, an agreed outcome is far from assured. In accordance with
the Court’s 6 December 2016 Order, Uganda therefore submits this Counter-
Memorial for the purposes of stating its position as a matter of law as clearly as
possible.
III. War Reparations in Historical and Economic Perspective
1.19 As stated, subparagraph (5) of the dispositif of the 2005 Judgment found
“that the Republic of Uganda is under obligation to make reparation to the
Democratic Republic of Congo for the injury caused”14 by the various violations
of international law for which Uganda was found responsible. Those violations
took place in the context of an international armed conflict. Said differently, “the
13 Ibid., para. 1.47.
14 Ibid., para. 345(5).
9
question of reparation… [to be] settled by the Court”15 now is properly
characterised as being about war reparations.
1.20 This is the first time in its 70-year history that the Court has been called
upon to address a claim for war reparations. Indeed, it is the first time that any
permanent international court has been confronted with the issue. Given the
unprecedented and exceptional character of this case, Uganda will endeavour
briefly to put the question of war reparations in historical perspective and address
some of the economic considerations that bear on the legal issues the Court must
decide.
1.21 Before the 20th century, many peace settlements included provisions for the
payment of large sums of money as a sign of subjugation of the defeated belligerent
to the victorious power. This practice of war indemnity (indemnité de guerre or
tribut de guerre) was founded on the idea that a price had to be paid for the
restoration of peace.
1.22 The 1919 Treaty of Versailles ending World War I approached “war
reparations” as a legal consequence of the responsibility of Germany for causing
the war. This is reflected in Article 231 of the Treaty, the (in)famous “Kriegschuld”
provision,16 which represented a paradigm shift according to which the purpose of
15 Ibid., para. 345(6).
16 The Versailles Treaty June 28, 1919 (“Treaty of Versailles”), Part VIII. Reparation, Section I (28
June 1919), Article 231: “The Allied and Associated Governments affirm and Germany accepts the
responsibility of Germany and her allies for causing all the loss and damage to which the Allied and
Associated Governments and their nationals have been subjected as a consequence of the war
imposed upon them by the aggression of Germany and her allies.”
10
the payment was to compensate the injured States for the injury suffered as a result
of Germany’s resort to war.17
1.23 The reparations scheme contained in the Treaty of Versailles proved
controversial throughout the interwar period, not only between Germany and the
Allied and Associated Powers, but also among the Allies themselves. It also fuelled
resentment and revanchist nationalism in Germany. Reflecting on the Versailles
war reparations experiment (before its evolution through the Dawes and Young
plans, and finally its collapse), John Maynard Keynes wrote prophetically:
“International morality, interpreted as a crude legalism, might be very injurious to
the world.”18
1.24 The failure of the Versailles reparations scheme loomed large at the end of
World War II. The settlements reached in 1945 and afterwards took a different
approach: they were marked by pragmatism, not the “crude legalism” of
Versailles.19 As the Court observed in the Jurisdictional Immunities of the State
case:
“[A]gainst the background of a century of practice in
which almost every peace treaty or post‑war
settlement has involved either a decision not to
require the payment of reparations or the use of lump
sum settlements and set‑offs, it is difficult to see that
international law contains a rule requiring the
payment of full compensation to each and every
17 See P. d’Argent, “Réparations” in DICTIONNAIRE DE LA GUERRE ET DE LA PAIX (B. Jeangène & F.
Ramel eds., 2002), pp. 1178-1182.
18 John Maynard Keynes, The Collected Writings, Vol. 3: A Revision of the Treaty (1978), p. 94.
On the Versailles war reparation settlement, the other World War I settlement and the interwar
period. See Pierre d’Argent, Les réparations de guerre en droit international public (Oct. 2002),
pp. 46-104, 105-119, 121-126.
19 Pierre d’Argent, “Reparations after World War II”, Max Planck Encyclopedia of Public
International Law (May 2009), p. 2.
11
individual victim as a rule accepted by the
international community of States as a whole as one
from which no derogation is permitted.”20
1.25 The establishment of the United Nations Compensation Commission
(“UNCC”) in the aftermath of Iraq’s 1990 invasion of Kuwait marked a major
contemporary war reparations scheme. The UNCC was a novel creation: it was
unilaterally established by the UN Security Council (SC Resolution 687 (1991)), a
complex mass-claims procedure was employed, and there was a mechanism for
governments, international organisations, individuals and corporations to pursue
their claims. The Commission designed various categories of claims, examined
most of them through a sampling process and resorted to flexible procedural rules,
reserving quasi-judicial adversarial proceedings only for the largest and most
complex claims.21 Concerns about the burdensomeness of the resulting financial
rewards were vitiated by the Security Council’s decision to create a special UNadministered
fund drawing on a percentage of Iraq’s export sales of petroleum,
20 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J.
Reports 2012, p. 141, para. 94.
21 As indicated by the Commission: “About 2.7 million claims, with an asserted value of $352.5
billion, were filed with the Commission. The Commission concluded claims-processing in 2005,
and the total compensation awarded was $52.4 billion to approximately 1.5 million successful
claimants. Nineteen Panels of Commissioners reviewed and evaluated the claims submitted by
governments, international organisations, companies and individuals. The panels reported their
recommendations to the Governing Council for approval. To date, the Commission had paid out
about $47.8 billion in compensation awards to successful claimants. There remains only one claim
that has not been paid in full, with a balance of about $4.6 billion outstanding. This claim was for
production and sales losses as a result of damages to Kuwait’s oil-field assets and represents the
largest award by the Commission’s Governing Council.” United Nations Compensation
Commission, Home, available at http://www.uncc.ch/ (last accessed on 7 May 2017).
On the UNCC, see notably Pierre d’Argent, Les réparations de guerre en droit international public
(Oct. 2002), pp. 352-418; V. Heiskanen, “The United Nations Compensation Commission”,
Collected Courses of the Hague Academy of International Law, Vol. 296 (2002); Alexandros
Kolliopoulos, La Commission d’indemnisation des Nations Unies et le droit de la responsabilité
internationale (2001), p. 2.
12
petroleum products and natural gas to finance the payments awarded by the
UNCC.22
1.26 By agreement between the two States, a claims commission was also
established following the 1998-2000 conflict between Ethiopia and Eritrea.23 Here,
too, it is unnecessary to review in detail the jurisdiction, procedure and findings of
the Eritrea and Ethiopia Claims Commission (“EECC”). For present purposes, it is
sufficient to note that to date it offers a contemporary example of a comprehensive
inter-State arbitral proceeding dealing with war reparations claims.24
1.27 This Counter-Memorial will rely on and refer to the EECC awards on
several crucial points of law where relevant. Uganda regrets that, for its part, the
DRC failed to take account of the valuable lessons learned from the EECC. Of
special note is the fact that the EECC proceeded mindful of the painful experience
of Versailles. The EECC paid special attention to the payment capacity of the
22 Under U.N. Security Council, 3004th Meeting, Resolution 705 (1991) (15 Aug. 1991), Annex 2,
and U.N. Security Council, 3519th Meeting, Resolution 986 (1995), U.N. Doc. S/RES/986 (14 Apr.
1995), Annex 6, 30% of the proceeds from Iraqi oil sales were to be retained for reparations
purposes. That percentage was reduced to 25% in 2000 under U.N. Security Council, 4241st
Meeting Resolution 1330 (2000), U.N. Doc. S/RES/1330 (2000) (5 Dec. 2000), Annex 10, and later
to 5% after the 2003 conflict and in light of the urgent need to rebuild Iraqi infrastructure and
services. See U.N. Security Council, Resolution 1483 (2003) 4761th Meeting, U.N. Doc.
S/RES/1483 (22 May 2003), Annex 18; U.N. Security Council, 4987th Meeting, Resolution 1546
(2004), U.N. Doc. S/RES/1546 (8 June 2004), Annex 20.
23 Agreement Between the Government of the State of Eritrea and the Government of the Federal
Democratic Republic of Ethiopia (“Agreement between Eritrea and Ethiopia”), Vol. 2138, I-37274
U.N.T.S. 94 (2001), entered into force 12 Dec. 2000.
24 On the EECC, see notably Sean D. Murphy et al., Litigating War: Mass Civil Injury and the
Eritrea-Ethiopia Claims Commission (2013); Pierre d’Argent & Jean d’Aspremont, “La
Commission des réclamations Erythrée-Ethiopie: un premier bilan”, Annuaire français de droit
international, Vol. 53 (2007), pp. 347-396; Pierre d’Argent, “La Commission des réclamations
Erythrée-Ethiopie: suite et fin”, Annuaire français de droit international, Vol. 55 (2009), pp. 279-
297.
13
parties, as well as the sociocultural and economic context in which the claims were
made.
1.28 Ethiopia sought approximately US$ 14.3 billion before the EECC; Eritrea
sought US$ 6 billion. In its award on compensation, the EECC awarded only a
small fraction of these claims: US$ 174,036,520 to Ethiopia and US$ 163,520,865
to Eritrea (including payments for individuals).
1.29 Uganda recognises that the customary rules on the international
responsibility of States for internationally wrongful acts apply equally in the
context of war reparations as in other settings. In other words, there is no lex
specialis to be applied in this case.25 Nevertheless, the customary rules on the
international responsibility of States cannot be applied blindly irrespective of the
context of the case. If history teaches anything, it is that questions of war
reparations must be treated with sensitivity and with due regard to the long-term
implications of any monetary award for relations between the States concerned, as
well as international peace and security more generally. That being the case, it is
impossible to ignore the economic implications of the facially exorbitant amounts
claimed by the DRC.
1.30 Uganda recalled in its September 2016 Memorial that, during negotiations
between the Parties after the 2005 Judgment, the DRC demanded, without support,
approximately US$ 23.5 billion in compensation.26 To put this claim in economic
and historical perspective, it helps to recall that:
25 Pierre d’Argent, Les réparations de guerre en droit international public (Oct. 2002), pp. 441-49,
830-831; Andrea Gattini, Le riparazioni di guerra nel diritto internazionale (2003), pp. 494-495,
510-511, 524-528.
26 See UM, paras. 1.22, 1.35.
14
 According to the World Bank, the entire GDP of Uganda in 2015 was
US$ 27.059 billion;27 and
 Under the 1921 London schedule of payments, Germany was obliged
to pay the equivalent of about US$ 450 billion in today’s dollars,28 an
amount approximating its entire GDP at the time.29
In other words, during the negotiations between the Parties, the DRC claimed an
amount roughly equivalent to Uganda’s entire GDP, exactly as the London
schedule of payments imposed a similar burden on Germany. The consequences of
the latter are well known to history.
1.31 Before the Court, the DRC has now reduced its claim by roughly US$ 10
billion, to approximately US$ 13.5 billion. Yet ordering Uganda to pay even this
reduced amount would mean that about half of Uganda’s GDP—i.e., half of the
market value of all final goods and services produced in Uganda in the course one
year—would need to be confiscated and transferred to the DRC. Simply put, the
Congolese claim remains staggering. Awarding such an amount would no less
impose on Uganda an “economic vivisection”30 than the Treaty of Versailles
imposed on Germany after World War I.
1.32 Viewing the amount sought by the DRC from a budgetary perspective is
equally sobering. The US$ 13.5 billion the DRC seeks equates to roughly twice the
27 The World Bank, Uganda, available at https://data.worldbank.org/country/uganda (last accessed
15 Jan. 2018).
28 United States Department of Labor, Bureau of Labor Statistics, CPI Inflation Calculator,
available at https://www.bls.gov/data/inflation_calculator.htm (last accessed 25 Jan. 2018).
29 Ibid.
30 John Wheeler Wheeler-Bennett, The Wreck of Reparations: Being the Political Background of
the Lausanne Agreement (1932), p. 255.
15
consolidated public spending of Uganda in 2016/17 (Shs 26.3 trillion, or US$ 7.2
billion).31 Granting the DRC’s claim would therefore mean that for two years, the
entirety of Uganda’s public spending would have to be turned over to the DRC,
necessitating the shutdown of all public services, including medical care, education
and welfare. The toll on the well-being of the Ugandan people would be enormous
and raise the prospect of instability. Of course, this is not what the DRC is expressly
seeking but the consequences are the same. Awarding the DRC’s claim would
deprive the Ugandan people of their means of existence and jeopardise Uganda’s
capacity to comply with its obligations under human rights law.
1.33 It also bears recalling that the DRC and Uganda are both recipients of
Official Development Assistance (“ODA”). During the period 2010-2014, the
DRC received a yearly average of US$ 3.4 billion, while Uganda’s yearly ODA
was US$ 1.66 billion.32 An important part of Uganda’s ODA is dedicated to the
implementation of an ambitious Peace, Recovery and Development Plan covering
55 districts and nine municipalities in northern Uganda.33 The plan establishes a
31 Parliament of the Republic of Uganda, Parliament Approves 2016/2017 National Budget,
available at http://www.parliament.go.ug/index.php/about-parliament/parliamentary-ne…-
parliament-approves-2016-2017-national-budget (last accessed 15 Jan. 2018); details available at
Ministry of Finance Planning and Economic Development of Uganda, Uganda Budget Information,
available at http://www.budget.go.ug/ (last accessed 25 Jan. 2018).
32 Both figures in 2013 value: Organization for Economic Development and Cooperation,
Development Aid at a Glance Statistics by Region, 2. Africa, available at
https://www.oecd.org/dac/stats/documentupload/2%20Africa%20%20Developme…
%20a%20Glance%202016.pdf (last accessed 15 Jan. 2018).
33 Republic of Uganda, Peace, Recovery and Development Plan for Northern Uganda (PRDP)
(2007-2010), available at https://www.brookings.edu/wpcontent/
uploads/2016/07/Uganda_PRDP-2007.pdf (last accessed 15 Jan. 2018), p. vii. In 2008,
Norway and Sweden concluded with the Government of Uganda an agreement of financial
assistance directed at funding the Plan, and were followed by Ireland and Denmark. Certain ‘special
projects’ also received the support of the World Bank and the European Union. See Government of
Uganda, Norwegian Ministry of Foreign Affairs & Swedish International Development
Cooperation Agency, Interim Joint Financing Arrangement between the Government of Uganda
and the Signatory Development Partners Concerning Support to the Peace, Recovery and
Development Plan for Northern Uganda (PRDP) (2007-2010) (18 Dec. 2008); and Republic of
16
national framework to address the socio-economic root causes of instability and
conflict. Its scope and purpose go far beyond what most development plans
encompass; it is in fact a comprehensive peace-building plan for a country afflicted
by many years of strife.34 This plan has been praised by the Security Council35 and
depends on the cooperation of several UN agencies that participate in
implementing it, including the High Commissioner for Refugees, UNICEF, and the
World Health Organization.
1.34 When deciding on the DRC’s claims, Uganda respectfully urges the Court
to be sensitive to these critical efforts to establish the foundations of long-term
stability and peace in the northern areas of the country most affected by conflict,
including regions bordering the DRC. Because money is fungible, any large
amount awarded by the Court would, in practice, mean that aid destined for
Uganda’s people would end up in the DRC treasury (and with no means available
to the Court to effectively control its spending).
Uganda, Peace, Recovery and Development Plan (PRDP 2) Grant Guidelines for Local
Governments) (June 2012), pp. 2-3.
34 Programme areas covered by the first stage of the Plan (July 2009-June 2012) related to
immediate post-conflict and emergency activities (such as the facilitation of peace initiatives, the
rationalisation of auxiliary forces, emergency assistance and IDP return). In its second phase (July
2012-June 2015), the programme developed under the Plan focused on economic recovery and
mitigating potential conflict drivers (through, inter alia, enterprise development, land
administration, community dispute resolution and reconciliation). Today, the third phase of the Plan
(July 2015-June 2021) is being implemented.
35 U.N. Security Council, Statement by the President of the Security Council 6058th Meeting, U.N.
Doc. S/PRST/48 (22 Dec. 2008), p. 2 (“The Security Council welcomes the re-establishment of
peace and security in northern Uganda. It encourages the Government of Uganda, with the support
of international partners, to honour its commitment to accelerate reconciliation, recovery and
development in that region through rapid implementation of its Peace, Recovery and Development
Plan (PRDP) and relevant Agenda items in the FPA and to disburse anticipated financing for the
PRDP without delay.”), Annex 23.
17
1.35 As will be demonstrated in the balance of this Counter-Memorial, the
DRC’s claims are deeply flawed both in fact and in law. There is therefore no legal
basis for the award of compensation the DRC seeks. Above and beyond these legal
failings, Uganda respectfully suggests that the Court should bear in mind the
historical and economic considerations recalled above, lest crude moralism, in the
guise of international legality, again prove injurious to international peace and
security.36
IV. Structure of the Counter-Memorial
1.36 Uganda’s Counter-Memorial consists of two volumes. Volume I contains
the main text of the Counter-Memorial. Volumes II and III contain additional
supporting material.
1.37 The main text of the Counter-Memorial consists of ten chapters, followed
by Uganda’s Submissions. After this Introduction, Chapter 2 sets forth a concise
history of the DRC and provides context for Uganda’s intervention between 1998
and 2003. The purpose of this overview is to provide the background necessary to
put the DRC’s compensation claims in context. It addresses, among other things,
the DRC’s portrayal of Uganda as being solely responsible for the conflict between
the Hema and Lendu ethnic groups in Ituri, and the DRC’s contention that Uganda
is responsible for nearly US$ 5.7 billion in macroeconomic damages. History
shows that conflict and chaos have long existed in the DRC, and that by the time
Uganda’s intervention began in 1998, the DRC economy was in a state of extended
decline resulting from decades of mismanagement and poor governance.
36 U.N. Security Council, Statement by the President of the Security Council 6058th Meeting, U.N.
Doc. S/PRST/48 (22 Dec. 2008), Annex 23.
18
1.38 History also shows that there were a large number of foreign actors in the
conflict in the DRC, and an even larger number of internal actors, including a
dizzying array of internal armed groups. Uganda cannot be made responsible for
virtually everything that happened during the conflict, as the DRC effectively seeks
to do with the exorbitant claim it has presented to the Court.
1.39 Chapter 3 addresses, at a general level, systematic flaws in the DRC’s
approach to the evidence. The Court’s jurisprudence makes clear that the DRC
bears the burden of establishing the facts it asserts in support of its claims. Further,
the DRC’s burden can only be sustained by presenting convincing evidence that
proves, with a high level of certainty, financially assessable harm. This chapter
demonstrates how, rather than accept and carry this burden, the DRC has
systematically failed to present evidence proving specific acts attributable to
Uganda that resulted in specific harm, and the valuation of such harm. What
“evidence” the DRC does submit often does not even support the claims advanced
in the DRC Memorial and, with some regularity, actually conflicts with them.
Rather than advance evidence concerning specific incidents of harm, the DRC has
resorted to various types of broad and vague information—reports of international
organisations, reports of non-governmental organisations (“NGOs”) or materials
collected by the DRC itself for purposes of this litigation—that do not prove the
DRC’s entitlement to the reparation it seeks.
1.40 Chapter 4 addresses, again at a general level, systematic flaws in the
DRC’s approach to the law relevant to this proceeding. Although the DRC
professes fidelity to the rules on State responsibility, it repeatedly ignores,
misstates or misapplies the rules on both the attribution of specific actions to
Uganda, and on the causal relationship between those actions and the harms the
DRC alleges. The DRC’s abandonment of these traditional rules shows that it is
essentially asking the Court to decide the issue of reparation ex aequo et bono,
19
which it cannot do, or to impose punitive damages on Uganda, which the Court
also cannot do. This chapter concludes by explaining that the DRC is
impermissibly seeking compensation in amounts that exceed Uganda’s payment
capacity.
1.41 The general discussion of systematic flaws in the DRC’s evidence and in
its approach to the law is developed further in the context of the general heads of
damages advanced by the DRC. Chapter 5 addresses the DRC’s claims for
compensation in respect of deaths allegedly caused by Uganda during the 1998-
2003 conflict. It begins by recalling the standard methods and forms of evidence
that are typically used in cases like this before international courts and tribunals,
for purposes of underscoring the gap between those standard methods and the
DRC’s approach in this case. It then shows that rather than trying to make the
particularised evidentiary showings the Court indicated that it would expect at this
phase, the DRC bases is claims relating to loss of life largely on information of a
highly general character. This general information is then supplemented by a series
of unfounded “percentages”, “distribution keys,” and “multipliers” that together
make the DRC’s claim entirely speculative. The chapter concludes by showing that
the DRC’s efforts to quantify the amount of compensation due in respect of loss of
life is both methodologically flawed and inconsistent with the prevailing economic
realities in the DRC.
1.42 Chapter 6 addresses the DRC’s claims relating to personal injuries other
than loss of life; that is, physical injuries, sexual violence, harm to child soldiers
and displacements. The chapter begins by describing the standard methods and
evidence used in these types of cases in international courts and tribunals, and
shows how the DRC has failed to provide comparable evidence in this case. As
was true with respect to its claims relating to loss of life, the DRC avoids making
specific evidentiary showings establishing the existence of the injuries it alleges or
20
the link to Uganda. Instead, it adopts an approach based on highly general
information that fails to meet the burden of proof the Court placed on the DRC in
2005. The chapter concludes by showing that the DRC’s attempts to place a value
on the personal injuries it claims are also deeply flawed.
1.43 Chapter 7 addresses the DRC’s request for compensation in respect of
property harm in Ituri, Kisangani and three other areas (Beni, Butembo and
Gemena). The chapter demonstrates that this claim has no support in evidence
showing with a high level of certainty—or indeed any level of certainty at all—
either the existence of alleged property damage or that it resulted from specific
wrongful acts attributable to Uganda. The chapter also shows that the DRC has
equally failed to adduce any evidence reliably proving the valuation of the damages
it claims. The only thing the DRC offers is a series of unverified tables of
information that are not anchored to evidence. This makes it impossible to
determine whether the compensation claimed corresponds to actual damages
caused by Uganda.
1.44 Chapter 8 addresses the DRC’s claim relating to the alleged illegal
exploitation of natural resources. This claim covers three categories of resources:
mineral resources (gold, diamonds and coltan); wildlife; and deforestation. The
chapter demonstrates that, in a vain attempt to circumvent its burden of proof, the
DRC presents a series of unsustainable propositions that are built upon
unconvincing evidence and speculation. As regards mineral resources, the DRC
relies entirely on a disproven theory advanced by the first UN Panel of Experts.
The chapter will show that the report on which the DRC bases it claim was widely
criticised (including by the DRC itself) and subsequently retracted.
1.45 As regards wildlife, the DRC equally avoids any kind of particularised
showing in favour of flawed wildlife surveys it says (but does not prove) were
21
conducted in its national parks that allegedly showed general population declines
among various species of animals. The chapter shows the would-be evidence on
which the DRC relies is unreliable and, indeed, contradicted by other sources the
DRC cites, and also that the DRC’s efforts to place a value on its wildlife is
unfounded. As regards deforestation, the chapter demonstrates that the basis of the
DRC’s claim is the same report of the first UN Panel of Experts it relied upon in
making its claim concerning mineral resources. Because that report was retracted,
it cannot support the DRC’s case.
1.46 Chapter 9 addresses the DRC’s claim relating to its alleged
“macroeconomic injury”. This claim, by itself, amounts to US$ 5.7 billion, more
than 40% of the total compensation the DRC claims. This chapter demonstrates
that the claim is unsustainable because (1) it is at odds with international practice
and case law; (2) it is purely speculative and incompatible with any notion of
causality; (3) it cannot be legally justified under the rubric of lucrum cessans put
forward by the DRC; and (4) its premise, as presented by the DRC, is inconsistent
with the 2005 Judgment.
1.47 Without prejudice to the foregoing, the chapter also demonstrates that the
methodology used by the experts on whom the DRC relies to quantify its alleged
“macroeconomic injury” suffers from multiple fatal flaws. The DRC’s economic
experts relied on the writings of Professor Sir Paul Collier and Dr Anke Hoeffler
from Oxford University. At Uganda’s request, Professor Collier and Dr Hoeffler
have reviewed DRC’s report and concluded that “it is a misguided use of our
approach, that the concept on which the authors base their estimation is flawed, and
that their technical analysis is incorrect”.
1.48 Finally, Chapter 10 addresses the DRC’s request that the Court order postjudgment
interest and certain forms of non-compensatory reparation. The chapter
22
first addresses the issues of interest raised in the DRC Memorial and then explains
that the DRC is not entitled to additional satisfaction in the form of an order that
Uganda investigate and prosecute Ugandan military personnel, or in the form of an
order that Uganda pay US$ 125 million for “intangible harm”. Lastly, Chapter 10
explains why the DRC is not entitled to its costs, including attorneys’ fees.
1.49 This Counter-Memorial concludes with Uganda’s Submissions.
CHAPTER 2
THE CONTEXT AND SCOPE OF UGANDA’S INTERVENION
2.1 This chapter sets forth a concise history of the DRC and provides context
for Uganda’s intervention between 1998 and 2003. The purpose of this brief
historical review is not to challenge any of the Court’s findings in the 2005
Judgment. It is merely to provide the background necessary to put the DRC’s
compensation claims in context.
2.2 For example, the DRC Memorial contends that Uganda is responsible for
nearly US$ 5.7 billion in macroeconomic damages allegedly resulting from its
intervention. As more fully explained in Chapter 9, this aspect of the DRC’s claim
presumes that the DRC’s economy would have grown from 1998 onwards. All
available data show, however, that as of 1998 the DRC’s economy was in a state
of extended decline resulting from years of mismanagement and poor governance.
The premise of the DRC’s argument is therefore inconsistent with history.
2.3 The DRC Memorial also portrays Uganda as being solely responsible for
the conflict between the Hema and Lendu ethnic groups in Ituri. Yet history shows
that this conflict is long-standing. It has been ongoing since at least the colonial
period and it continues to this day. It both pre-dates and post-dates Uganda’s
intervention.
2.4 The DRC’s claims for damages allegedly occurring during the conflict in
Ituri similarly presume that none of those damages would have occurred if Uganda
had not intervened and/or had fulfilled its responsibilities as an occupying Power
in that district. But here, too, the DRC’s claim fails to take adequate account of the
context. In the first instance, many of the problems in Ituri were also long-standing
24
and endemic; they existed wholly independent of Uganda’s intervention.
Moreover, Uganda’s presence in Ituri (and indeed in the DRC as a whole) was of
a limited nature. At the height of its deployment in the DRC, Uganda had no more
than 10,000 troops in the country, and a lesser amount in Ituri.
2.5 History also shows that there was a large number of foreign actors in the
conflict in the DRC, and an even larger number of internal actors, including a
complex array of internal armed groups. As a matter of international law on
reparation, Uganda is not responsible for everything that happened during the
conflict, as the DRC effectively asserts with the excessive claim it has presented to
the Court.
2.6 Uganda respectfully submits that its intervention and the DRC’s claims for
compensation cannot properly be evaluated without taking account of the fact that
the DRC, including the eastern DRC, has long been characterised by chaos.
*
2.7 The remainder of this Chapter is organised as follows. Section I discusses
certain critical aspects of DRC history leading up to the 1998-2003 conflict.
Section II provides relevant context for Uganda’s intervention in the DRC between
1998 and 2003.
I. The Historical Background to the 1998 Conflict
A. COLONISATION AND THE CREATION OF ETHNIC AND LAND CONFLICTS
2.8 The DRC has a long history of instability, misrule, violence and ethnic
conflict that extends back to the colonial period.
25
2.9 The area of what would become the DRC first drew the attention of
European colonisers, who sowed the seeds of conflict, more than 100 years ago.
On 7 August 1884, King Leopold II of Belgium and Henry Morton Stanley, a
Welsh-American explorer, sat down together in Oostende, Belgium to draw a
preliminary sketch of what would become the Congo.37 They marked off an area
larger than Western Europe based only on the location of concessions and
“stations” established by Stanley and his men, not any natural or historical
considerations.38 The area encompassed literally hundreds of ethnic groups.
2.10 King Leopold II established the so-called “Congo Free State” in 1885.39
Unlike other European colonies, the Congo Free State was the King’s personal
property,40 over which he ruled directly through a private entity known as the
“International Association of the Congo”.41 In order to exploit the country’s vast
natural wealth, including ivory, rubber and mineral resources, Leopold II legalised
forced labour. He also created a personal army known as the “Force Publique” to
compel people to work and pay taxes.42
2.11 The Force Publique is known to history for its extreme brutality. Beatings,
rape, torture, mutilations, murder and the burning of houses were common.43 These
37 David Van Reybrouck, Congo: The Epic History of a People (2015), pp. 58-59, Annex 89.
38 Ibid., p. 58.
39 Ibid., p. 57.
40 Ibid., pp. 57-58.
41 Ibid., p. 58 (Translation by Counsel, original in French: “Association Internationale du Congo”.).
42 Auguste Maurel, Le Congo de la Colonisation Belge à l’Indépendance (1992), pp. 28-30, Annex
72.
43 Van Reybrouck, Congo: The Epic History of a People (2015), pp. 90-91, Annex 89; Maurel, Le
Congo de la Colonisation Belge à l’Indépendance (1992), pp. 31-32, Annex 72.
26
excesses led to a number of bloody uprisings between 1895 and 1908, including in
Kasai, Kwango, Uele and Katanga.44
2.12 Ituri was one of the first areas in what is now the eastern DRC to come
under the rule of the Congo Free State.45 During an 1899 expedition, H.M. Stanley
encountered the Hema and the Lendu, whom he called the “Wahuma” and
“Balegga”, respectively. Stanley described the Hema as “fine-featured
herdsmen”,46 “amiable, quiet, and friendly neighbours”,47 “with almost European
features”.48 In contrast, he described the Lendu as “the dark flat-nosed negroid
tilling the land”.49 Stanley’s ill-informed generalisations about each group, which
were widely disseminated in his best-selling books, informed Belgian colonial
policies and left an enduring legacy of prejudice.50
2.13 The widespread humanitarian abuses of the Congo Free State, described in
literary works such as Joseph Conrad’s Heart of Darkness and Mark Twain’s King
Leopold Soliloquy, caused an international outcry. In 1908, the Congo Free State
disappeared as a separate State and its territory became a Belgian colony. Colonial
authorities chose local leaders, frequently based on ethnic stereotypes, to
44 Maurel, Le Congo de la Colonisation Belge à l’Indépendance (1992), p. 34, Annex 72.
45 François Emizet Kisangani, Guerres Civiles dans la République Démocratique du Congo 1960-
2010 (2015), p. 288, Annex 90.
46 Henry M. Stanley, In Darkest Africa: or the Quest, Rescue and Retreat of Emin, Governor of
Equatoria, Vol. II (1890), p. 387, Annex 69.
47 Ibid., p. 403.
48 Ibid., p. 384.
49 Ibid., p. 388.
50 Dan Fahey, Rift Valley Institute, “Ituri: Gold, Land, and Ethnicity in North-Eastern Congo”,
Usalama Project: Understanding Congolese Armed Groups (2013), p. 18, Annex 88; Johan Pottier,
“Representations of Ethnicity in the Search for Peace: Ituri, Democratic Republic of Congo”,
African Affairs Vol. 109, No. 434 (27 Nov. 2009), pp. 24, 47, Annex 83.
27
administer their vast territory. Their decision to favour certain ethnic groups over
others engendered conflict.51
2.14 In Ituri, for example, the colonial rulers perpetuated the myth of Hema
superiority. A 1920 account illustrates the Europeans’ stereotyped views of the two
groups: “It is only since the arrival of the European that the Bahema, always
ambitious and deceitful, has tried to dominate the Walendu in order to better exploit
him.”52 Europeans described the Lendu as “warlike” and “unruly”, and noted that
they “frequently tr[ied] to assert their independence… by defying Government
forces”.53
2.15 Colonial authorities put Hema in leadership positions and gave them unique
privileges. Lendu, on the other hand, were systematically excluded, and relegated
to working the mines and plantations.54 One result was the stratification of local
51 Maurel, Le Congo de la Colonisation Belge à l’Indépendance (1992), pp. 85-86, Annex 72;
Fahey, “Ituri: Gold, Land, and Ethnicity in North-Eastern Congo” (2013), pp. 18, 22, Annex 88.
52 Pottier, “Representations of Ethnicity in the Search for Peace: Ituri, Democratic Republic of
Congo” (2009), p. 43, Annex 83.
53 Fahey, “Ituri: Gold, Land, and Ethnicity in North-Eastern Congo” (2013), p. 21, Annex 88.
54 François Emizet Kisangani, Guerres Civiles dans la République Démocratique du Congo 1960-
2010 (2015), p. 289, Annex 90; U.N. Security Council, Special Report on the events in Ituri,
January 2002-December 2003, U.N. Doc. S/2004/573 (16 July 2004), para. 14, DRCM Annex 1.6.
28
society along ethnic lines.55 Another result was violence.56 Uprisings occurred in
Ituri in 1911, 1919, 1920 and 1929.57
2.16 Nationally, tensions grew as the colonial administration encouraged greater
European settlement.58 Throughout the Belgian Congo, colonial authorities seized
communal land to create space for the new settlers and introduced a new dual
system of property rights.59 For the most part, vacant land became State property
for European colons to turn into plantations. Where land was already under the
control of traditional authorities, the colonial administration institutionalised this
control based on ethnicity. People who did not belong to the traditional authorities’
ethnic group or who did not respect that authority were denied access to land.60
Land rights became the source of persistent and pernicious inter-ethnic conflicts
resulting in many tragedies.
55 François Emizet Kisangani, Guerres Civiles dans la République Démocratique du Congo 1960-
2010 (2015), p. 289, Annex 90.
56 Fahey, “Ituri: Gold, Land, and Ethnicity in North-Eastern Congo” (2013), p. 20. For example, in
1911, the Belgian district commissioner appointed a Hema chief named Bomera over all the
populations in present-day Irumu territory, where the capital, Bunia, is located. His nomination
caused an uprising. The Lendu revolted and killed him, along with 200 Hema villagers in December
1911. The Force Publique reacted brutally, and the colonial administration separated the Hema and
the Lendu into separate, defined administrative territories. Although the nominal purpose was to
stop ethnic hostilities, this only further exacerbated tensions between the groups, Annex 88;
François Emizet Kisangani, Guerres Civiles dans la République Démocratique du Congo 1960-
2010 (2015), p. 288, Annex 90; Thierry Vircoulon, “L’Ituri ou La Guerre Au Pluriel”, Afrique
Contemporaine, Vol. 2005/3, No. 215 (2005), p. 138, Annex 82.
57 François Emizet Kisangani, Guerres Civiles dans la République Démocratique du Congo 1960-
2010 (2015), pp. 288-289, Annex 90.
58 Fahey, “Ituri: Gold, Land, and Ethnicity in North-Eastern Congo” (2013), p. 22, Annex 88.
59 Koen Vlassenroot, “The Promise of Ethnic Conflict: Militarisation and Enclave-Formation in
South Kivu” in CONFLICT AND ETHNICITY IN CENTRAL AFRICA (D. Goyvaerts, ed., 2000), pp. 62-
63, Annex 74; François Emizet Kisangani, Guerres Civiles dans la République Démocratique du
Congo 1960-2010 (2015), p. 289, Annex 90.
60 Vlassenroot, “The Promise of Ethnic Conflict: Militarisation and Enclave-Formation in South
Kivu” (2000), p. 63, Annex 74.
29
2.17 In Ituri, the new system had a particularly significant impact on the Lendu.
Thousands of hectares of communal land on which the Lendu had worked for
centuries were confiscated in favour of Europeans and the Hema.61
B. POST-INDEPENDENCE AUTHORITARIAN RULE AND ECONOMIC DECLINE
2.18 The Congo’s turbulent transition to independence, followed by four
decades of poor governance, led to sharp economic decline, increased ethnic
tensions and further conflict.
2.19 After World War II, as colonial territories across the globe began to declare
independence, demands for Congolese independence grew.62 On 4 January 1959,
widespread rioting broke out in Kinshasa.63 The following week, Belgium
promised independence “without harmful procrastination but also without undue
haste”.64 Events forced Belgium’s hands and, at a conference in January 1960,
Belgium agreed that the Congo would become independent on 30 June 1960.65
2.20 Congo was ill-prepared for independence. As of 1959, the Congolese
people had no experience with self-rule, enjoyed few educational opportunities and
occupied very few leadership positions in the colonial regime. There was no
parliament and no culture of institutionalised deliberation or opposition.66 There
were only three Congolese managers in the civil service and no Congolese officers
61 François Emizet Kisangani, Guerres Civiles dans la République Démocratique du Congo 1960-
2010 (2015), p. 289, Annex 90.
62 Van Reybrouck, Congo: The Epic History of a People (2015), pp. 233-234, Annex 89.
63 Ibid., pp. 248-249.
64 Ibid., p. 250.
65 Ibid., pp. 256, 259.
66 Ibid., p. 283.
30
in the army.67 Moreover, the first public secondary schools had only been
established in 1938, the first university in 1954 and the first law school in 1958.68
At the time of independence, there were only 30 Congolese university graduates in
the entire country.69
2.21 Patrice Lumumba’s Mouvement National Congolais won national elections
held in late May 1960 in the run-up to independence70 but large-scale civil strife
quickly followed. Congolese soldiers in the Force Publique mutinied and rebellions
broke out.71 Katanga and South Kasai, which together accounted for one quarter of
Congo’s territory, tried to secede.72 The ensuing fighting between the Congolese
army and rebel forces led to massacres that claimed thousands of civilian lives.73
2.22 Lumumba was assassinated in 1961 and the new country fell deeper into
crisis over the next four years.74 In 1965, Mobutu Sese Seko seized power in a coup
d’état and began a 32-year reign.75 In 1971, he renamed the country the Republic
of Zaire. Like the colonial administration before him, Mobutu’s reign was
characterised by brutal authoritarianism and divide-and-rule tactics, the effect of
67 BBC, The Story of Africa, Independence, Case Study: Congo, available at
http://www.bbc.co.uk/worldservice/africa/features/storyofafrica/14chapt… (last accessed
15 Jan. 2018), Annex 101.
68 Van Reybrouck, Congo: the Epic History of a People (2015), p. 218, Annex 89.
69 BBC, The Story of Africa, Independence, Case Study: Congo, available at
http://www.bbc.co.uk/worldservice/africa/features/storyofafrica/14chapt… (last accessed
15 Jan. 2018), Annex 101.
71 Georges Nzongola-Ntalaja, Washington Office on Africa, “Appendix One: Historical
Background, From Leopold to Mobutu”, Zaire: A Nation Held Hostage (1992), p. 8, Annex 73. 72 Van Reybrouck, Congo: the Epic History of a People (2015), p. 302, Annex 89.
73 Ibid.
74 Nzongola-Ntalaja, “Appendix One: Historical Background, From Leopold to Mobutu” (1992), p.
9, Annex 73.
75 BBC, The Story of Africa, Independence, Case Study: Congo, available at
http://www.bbc.co.uk/worldservice/africa/features/storyofafrica/14, Annex 101.
31
which was to exacerbate ethnic and land conflicts.76
2.23 In Ituri, the Hema continued to occupy top administrative and political
positions;77 they dominated the administration, courts and police.78 The ethnic
violence continued. A year after independence, the provincial authorities, led by
Hema, brutally repressed a Lendu rebellion resulting in heavy casualties.79 Among
other incidents, additional outbreaks of violence occurred in 1971, 1981 and 1992,
as Hema landowners bribed Zairian security officials to attack Lendu communities
over land and livestock disputes.80
2.24 In the late 1960s and early 1970s, Mobutu passed two laws that had a major
impact on land ownership and the economy, and continued to increase ethnic
tensions. First, under a process known as “Zaireanization”, Mobutu expropriated
businesses and plantations owned by foreigners.81 Second, the 1973 General
Property Law declared all land to be State property.82 In practice, this meant that
Mobutu redistributed land and concessions to reward those loyal to him.83
76 Claude Kabemba, U.N.H.C.R., Centre for Documentation and Research, The Democratic
Republic of Congo: From Independence to Africa’s First World War, WRITENET Paper No.
16/2000 (June 2001), p. 3, Annex 12.
77 François Emizet Kisangani, Guerres Civiles dans la République Démocratique du Congo 1960-
2010 (2015), p. 290, Annex 90; Fahey, “Ituri: Gold, Land, and Ethnicity in North-Eastern Congo”
(2013), p. 23, Annex 88.
78 Fahey, “Ituri: Gold, Land, and Ethnicity in North-Eastern Congo” (2013), p. 28, Annex 88.
79 François Emizet Kisangani, Guerres Civiles dans la République Démocratique du Congo 1960-
2010 (2015), p. 290, Annex 90.
80 Vircoulon, “L’Ituri ou La Guerre Au Pluriel” (2013), p. 138, Annex 82; Jean-Pierre Bemba, Le
Choix de la Liberté (2002), p. 98, DRCM Annex 2.13.
81 Van Reybrouck, Congo: the Epic History of a People (2015), p. 357, Annex 89.
82 Vlassenroot, “The Promise of Ethnic Conflict: Militarisation and Enclave-Formation in South
Kivu” (2000), pp. 63-64, Annex 74.
83 Ibid., p. 64.
32
2.25 In Ituri, these new laws only further benefited the Hema, who had political
ties to the Mobutu regime.84 Hema acquired the majority of land concessions,
displacing many Lendu.85 Belgian property owners, whose property had been
nationalised, handed their properties to Hema managers in the hope that they would
be able return. (Their hope was in vain, as Hema registered the properties in their
own names.)86 The workers on these Hema-dominated lands were most often
Lendu.
2.26 In response to the Lendu community’s feeling of marginalisation and
exclusion, Soma Mastaki, a Lendu leader, created the Parti de libération des
Walendu (“PLW”) in 1974.87 This movement quickly turned to violence in which
many Hema civilians were killed.88
2.27 In addition to authoritarianism and ethnic favouritism, the Mobutu regime
was characterised by gross mismanagement of the economy and corruption at every
level. These internal factors were exacerbated by global economic factors. The
1970s oil crisis and a 40% drop in demand for copper in 1975 pushed the already
bad economy into steep decline.89
2.28 The mining of natural resources had long been a mainstay of the Congo’s
economy. But without investment, infrastructure decayed, equipment fell into
84 Fahey, “Ituri: Gold, Land, and Ethnicity in North-Eastern Congo” (2013), pp. 27-28, Annex 88.
85 François Emizet Kisangani, Guerres Civiles dans la République Démocratique du Congo 1960-
2010 (2015), pp. 290, 295, Annex 90.
86 Vircoulon, “L’Ituri ou la Guerre au Pluriel” (2005), p. 131, Annex 82.
87 François Emizet Kisangani, Guerres Civiles dans la République Démocratique du Congo 1960-
2010 (2015), p. 290, Annex 90; Fahey, “Ituri: Gold, Land, and Ethnicity in North-Eastern Congo”
(2013), p. 28, Annex 88.
88 Ibid.
89 Van Reybrouck, Congo: the Epic History of a People (2015), p. 370, Annex 89.
33
disrepair and production fell. By the mid-1980s, for example, the production of
copper was less than one tenth of its prior level.90 By the mid-1990s, State-owned
mining companies became insolvent.91 As of 1995, formal mining had declined so
much that agricultural production replaced it as the country’s top export.92
2.29 What was true of the DRC generally was true also in Ituri, where decaying
infrastructure discouraged investment, mining equipment deteriorated and profits
fell.93 Many miners responded by turning to artisanal mining.94 Although it was
initially illegal, Mobutu legalised the practice in 1981.95 Tens of thousands of
people in Ituri and elsewhere started to exploit and sell minerals on their own
wherever they could find a market, including in Uganda, Rwanda and Burundi.96
2.30 Uganda’s capital, Kampala, became one of the main transit points for the
private trade in minerals beginning in the mid-1990s. 97 This was due to a number
of factors. Conflict in North and South Kivu provinces in the DRC, as well as
90 G. Kiakwama & J. Chevallier, The World Bank, “Nonreformers: Democratic Republic of the
Congo”, Aid and Reform in Africa: Lessons from Ten Case Studies (S. Devarajan, D. Dollar, T.
Holmgren, eds., 2001), p. 637, Annex 76.
91 E. F. Kisangani & F. Scott Bobb, Historical Dictionary of the Democratic Republic of the Congo
(2010), pp. 355-357, Annex 84.
92 Ibid.
93 Fahey, “Ituri: Gold, Land, and Ethnicity in North-Eastern Congo” (2013), pp. 24-25, Annex 88.
94 Ibid.
95 Ibid.; F. Missier & O. Vallee, “Du Scandale Zaïrois au Congo Gemmocratique” in CHASSE AU
DIAMANT AU CONGO/ZAIRE (L. Monnier, B. Jewsiewicki, G. de Villers eds., 2001), pp. 27-28,
Annex 77.
96 Fahey, “Ituri: Gold, Land, and Ethnicity in North-Eastern Congo” (2013), pp. 24-25, Annex 88;
Sebastian Gatimu, Institute for Security Studies, The true cost of mineral smuggling in the DRC,
available at https://issafrica.org/iss-today/the-true-cost-of-mineral-smuggling-in-t… (11 Jan.
2016), Annex 91.
97 Fahey, “Ituri: Gold, Land, and Ethnicity in North-Eastern Congo” (2013), pp. 25-27, Annex 88.
34
Burundi and Rwanda, disrupted the usual trading routes.98 Uganda also had begun
to liberalise its economy and pursue export-driven economic growth in response to
pressure from the World Bank and the International Monetary Fund (“IMF”). In
1994, the government eliminated the Bank of Uganda’s monopoly on the purchase
of gold, abolished the gold export tax and reduced administrative burdens for
trading companies.99 The result was a significant increase in private exports of
Congolese minerals from Uganda starting around 1995.100
2.31 Two incidents known as the “pillages” weakened the DRC’s economy even
further and eroded mining companies’ revenues.101 In September 1991, soldiers
dissatisfied with their salaries began looting both private companies and public
buildings in Kinshasa. The local population followed suit and looting spread to the
rest of the country. Factories and businesses were stripped bare.102 In 1993, soldiers
began a similar rampage in Kinshasa.103
2.32 The general economic decline was so pronounced that, by 1996, the per
capita GDP of what was then still Zaire was less than 40% of what it had been in
1958.104 According to a World Bank report “[p]overty ha[d] become widespread,
and social indicators, which used to compare favorably with those in the rest of
98 Ibid.
99 Ibid.
100 Ibid.
101 F. Missier & O. Vallee, “Du Scandale Zaïrois au Congo Gemmocratique” (2001), pp. 27-28,
Annex 77.
102 E. F. Kisangani & F. Scott Bobb, Historical Dictionary of the Democratic Republic of the Congo
(2010), pp. 352, 425-426, Annex 84.
103 Ibid.
104 G. Kiakwama & J. Chevallier, “Nonreformers: Democratic Republic of the Congo” (2001), p.
637, Annex 76.
35
Sub-Saharan Africa, ha[d] steadily declined.”105 Further: “Without maintenance,
infrastructure has deteriorated to such an extent that most regions are now
completely isolated.”106 Steamboats had stopped operating and roads were
overtaken by the jungle.107 Uncollected garbage piled up. Public schools ceased to
operate. Poorly paid police and soldiers looted shops, held foreign journalists for
cash ransoms and used military trucks to run taxi services.108 The government had
completely withdrawn from providing healthcare and education, and the army was
insufficiently armed and demoralised.109
2.33 The weakness of the central government allowed local strongmen to gain
power and led to the formation of local militias.110 Increased violence and human
rights violations came hand-in-hand with the growing poverty.111
2.34 The Government of Zaire itself admitted that the situation was deteriorating
rapidly in a 1995 study by its Ministry of National Planning and Reconstruction
(Ministère du Plan et Reconstruction National), UNICEF, the UNDP and the
105 Ibid.
106 Ibid.
107 Adam Hochschild, “Congo’s Many Plunderers”, Economic & Political Weekly, Vol. 36, No. 4
(27 Jan.-2 Feb. 2001), pp. 287-288, Annex 78.
108 Van Reybrouck, Congo: the Epic History of a People (2015), pp. 370-371, Annex 89;
Hochschild, “Congo’s Many Plunderers” (2001), pp. 287-288, Annex 78.
109 E. Pay & D. Goyvaerts, “Belgium, the Congo, Zaire, and Congo: A Short History of a Very
Shaky Relationship”, in CONFLICT AND ETHNICITY IN CENTRAL AFRICA (D. Goyvaerts ed., 2000),
p. 30, Annex 75.
110 Vlassenroot, “The Promise of Ethnic Conflict: Militarisation and Enclave-Formation in South
Kivu” (2000), p. 71, Annex 74.
111 U.N. Human Rights, Office of the High Commissioner, Democratic Republic of the Congo,
1993-2003: Report of the Mapping Exercise documenting the most serious violations of human
rights and international humanitarian law committed within the territory of the Democratic
Republic of the Congo between March 1993 and June 2003 (hereinafter “U.N. Mapping Report”)
(Aug. 2010), para. 130, Annex 25.
36
WHO. 112 The study found that:
 Child and adult mortality rates had greatly increased between 1984 and
1995;113
 GDP was decreasing by 10% every year, at the same time the
population was growing by 3.1% per year;114
 The national debt had reached US$ 10 billion, nearly twice the
country’s GDP (approximately US$ 5.5 billion);115
 Real annual income per person had decreased from US$ 350 in 1959,
to US$ 240 in 1981, to just US$ 100 in 1995;116
 50% of the wealth was concentrated in the hands of five percent of the
population, mostly in Kinshasa and Shaba;117
 In order to survive, the Congolese population had developed a vibrant
informal economy that escaped taxes;118 and
 Violence and juvenile delinquency were increasing rapidly.119
112 République du Zaire, Ministère du Plan et Reconstruction Nationale, Enquête Nationale sur la
Situation des Enfants et des Femmes au Zaire en 1995, Rapport Final (Feb. 1996), p. 6, Annex 41.
113 Ibid., pp. 59-60.
114 Ibid., p. 6.
115 Ibid.
116 Ibid.
117 Ibid.
118 Ibid., pp. 6-7.
119 Ibid., p. 7.
37
C. THE INCREASE IN ETHNIC TENSIONS DURING THE 1990S
2.35 Several events in the 1990s contributed to heightening ethnic tensions
within the DRC, further sowing the seeds of instability, violence and conflict. After
the end of the Cold War, the pressure to democratise mounted. To alleviate this
pressure, Mobutu nominally began the process of democratisation, yet at the same
tried to sabotage it by using divide-and-rule tactics and stoking ethnic hostilities.
One observer noted, “ethnicity proved to be the main instrument” to “preoccupy,
destroy, or disorganise rivals.”120 Youth militias proliferated.121
2.36 In Ituri, both the Hema and the Lendu seized the opportunity to create
political parties to help safeguard their interests. The Hema created the ETE
(meaning “cattle” in Hema) party, while the Lendu created the party for Liberation
of the Oppressed Race in Ituri (“LORI”).122 Both groups mobilised youth and
encouraged violence.
2.37 Tensions were particularly high in the Djugu and Irumu regions of Ituri. In
Djugu, Lendu leaders in the Walendu Pitsi collectivité claimed customary rights
over land concessions held by Hema businessmen.123 At the same time, using their
political connections, the Hema expanded their concessions and annexed land from
neighbouring Lendu villages.124 The few disputes that appeared in front of the
courts were decided in favour of the Hema. The Lendu did not have the financial
120 Vlassenroot, “The Promise of Ethnic Conflict: Militarisation and Enclave-Formation in South
Kivu” (2000), p. 71, Annex 74.
121 Ibid.
122 François Emizet Kisangani, Guerres Civiles dans la République Démocratique du Congo 1960-
2010 (2015), p. 291, Annex 90.
123 Fahey, “Ituri: Gold, Land, and Ethnicity in North-Eastern Congo” (2013), p. 29, Annex 88.
124 Ibid.
38
means to contest the titles125 but they refused to leave. Armed clashes with the
police ensued.126 In one incident in Irumu, a dispute dating back to 1910 concerning
ownership of the villages of Lagabo, Lapka and Nombe led to 270 deaths.127 In the
chaos, the Mobutu battalion lost control and used heavy artillery against the Lendu,
killing more than 300 civilians.128
D. THE IMPACT OF CIVIL WARS IN THE REGION
2.38 The 1994 genocide in Rwanda spawned even greater instability in the DRC,
especially in the east.
2.39 Following the 6 April 1994 assassination of Rwandan President
Habyarimana, a Hutu, elements of the Hutu-dominated forces armèes rwandaises
(“FAR”) and the extremist Hutu militia known as the “Interahamwe” slaughtered
between 800,000 and 1 million Tutsi and moderate Hutu in just three months.129 In
response, the Tutsi-led Rwandan Patriotic Front (“RPF”) launched an offensive and
took power in July 1994.
2.40 Approximately 1.5 million refugees, including the defeated FAR,
Interahamwe and other “génocidaires” fled to the eastern part of Zaire. They took
much of the Rwandan government’s treasury and military arsenal with them, and
125 Vircoulon, “L’Ituri ou la Guerre au Pluriel” (2005), p. 131, Annex 82.
126 U.N. Mapping Report, para. 365, Annex 25.
127 François Emizet Kisangani, Guerres Civiles dans la République Démocratique du Congo 1960-
2010 (2015), p. 291, Annex 90.
128 Ibid.
129 Van Reybrouck, Congo: the Epic History of a People (2015), p. 414, Annex 89.
39
began to plan attacks against Rwanda. Mobutu and the rest of the international
community largely turned a blind eye.130
2.41 The Rwandan génocidaires joined at least ten other rebel groups in eastern
Zaire that were opposed to the regimes in neighbouring countries, including
Angola, Burundi and Uganda. The DRC itself acknowledged in a document
attached to its Application in this case that “[t]he massive influx of Rwandan Hutu
refugees into the eastern provinces of the Congo in 1994… further exacerbated the
security problem along the border between the Democratic Republic of the Congo
and Rwanda”.131 The DRC also emphasised that “[t]he actions of the Ugandan
rebels (the Lord’s Resistance Army) along the Congolese-Ugandan border [was]
also a source of instability in the Great Lakes Region”.132
2.42 In 1996, the Alliance of Democratic Forces for the Liberation of Congo
(“AFDL”), a coalition led by Laurent-Désiré Kabila, rebelled and ultimately ousted
Mobutu with the backing of Burundi, Rwanda and Uganda.133 On 25 May 1997,
Kabila declared himself President and renamed the country the Democratic
Republic of the Congo.134
130 Van Reybrouck, Congo: the Epic History of a People (2015), pp. 415, 417, Annex 89.
131 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda),
White Paper Vols. I and II, Annexed to the Application instituting proceedings of the Government
of the Democratic Republic of the Congo (hereinafter “DRC White Paper”), filed on 23 June 1999,
pp. 133-134, para. 8 (Translation by U.N. Secretariat, original in French: “L’afflux massif des
réfugiés Hutu rwandais dans les Provinces orientales du Congo en 1994… a davantage exacerbé le
problème de sécurité à la frontière commune entre la République Démocratique du Congo et le
Rwanda”.).
132 DRC White Paper, p. 134, para. 8 (Translation by U.N. Secretariat, original in French: “Les
actions de la rébellion ougandaise (“Armée du Seigneur”) aux abords de la frontière congoloougandaise
est également un facteur d’instabilité dans la région des Grands Lacs”.).
133 DRC White Paper, p. 134, para. 9.
134 U.N. Mapping Report, para. 180, Annex 25.
40
2.43 President Kabila came to power promising to democratise the country and
revive the economy. Within a few months, however, he lost both external and
internal support. Among other things, his refusal to cooperate with the UN
Secretary-General’s investigation into human rights abuses turned his international
backers against him.135
2.44 Kabila’s authoritarian measures also stirred internal dissent. On 22 March
1997, he announced a ban on all political parties until the end of the “war of
liberation”, and then suspended political activities of opposition parties for two
years.136 The new regime’s security forces targeted the leaders and activists of the
main opposition parties, and committed a number of atrocities, such as the torture
and killing of protesters, and the rape of opposition leaders’ family members.137
2.45 By the time conflict erupted again in 1998, the legacy of colonial rule and
four decades of bad governance left the Congolese people impoverished,
disenfranchised and more divided along ethnic lines than ever.
II. Uganda’s Role in the 1998 Conflict
A. THE PARTIES TO THE CONFLICT
2.46 Faced with criticism from all sides, President Kabila turned against his
erstwhile allies, especially Rwanda, which had maintained a major presence in the
135 Ibid.; U.N. Human Rights, Office of the High Commissioner, Statement by Mrs Mary
Robinson, U.N. High Commissioner for Human Rights, available at
http://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsI…
=E (last accessed 16 Jan. 2018), Annex 7.
136 François Ngolet, Crisis in the Congo (2011), pp. 6-7, Annex 86.
137 U.N. Mapping Report, para. 302, Annex 25.
41
DRC following Kabila’s rise to power. Senior Rwandan officials even held
positions of power in the new Kabila administration. The Chief of Staff for the
Congolese Army, for example, was a Rwandan general, James Kabarebe. In July
1998, Kabila summarily dismissed General Kabarebe and ordered all Rwandan
soldiers to leave DRC territory.138
2.47 On 2 August 1998, a coalition of Congolese rebel groups and Rwandan
forces launched a rebellion intended to overthrow Kabila.139 The Kabila
administration attempted to mobilise public support by inciting ethnic hostilities
against the Rwandans, and “embarked on a campaign of hunting down Tutsis,
Banyamulenge [Congolese Tutsis] and people of Rwandan origin in general.”140
The head of President Kabila’s cabinet, Mr Abdoulaye Yerodia Ndombasi, “stirred
up hatred against the Tutsis, comparing them to a ‘virus, a mosquito and filth that
must be crushed with determination and resolve’”.141
2.48 Unable to quell the rebellion alone, Kabila sought assistance from other
neighbouring States. Angola, Chad, Libya, Namibia, Sudan and Zimbabwe all sent
troops and provided assistance. The Court previously found that Uganda intervened
on 7 August 1998.142
2.49 Soon after the conflict erupted, the DRC was effectively divided into two
zones. One, in the east, was administered by the rebel group Rassemblement
Congolais pour la Démocratie (“RCD”) and its armed wing, the Armée nationale
138 Ibid., para. 308.
139 Ibid., paras. 308-309.
140 Ibid., para. 312.
141 Ibid., para. 313.
142 Armed Activities (2005), para. 149.
42
congolaise (“ANC”), with the assistance of Burundi, Rwanda and Uganda. The
other zone, in the west, was controlled by the DRC government with the support
of its external allies.143
2.50 In addition to the presence in the DRC of these national armies, at least 21
major irregular armed groups, and a larger number of smaller irregular groups,
were also embroiled in the conflict.144
2.51 Ever-shifting alliances made the conflict highly complex and difficult to
bring to a close. Kabila variously formed alliances with different rebel groups,
including the Mayi-Mayi armed groups, the ex-FAR/Interahamwe, the Burundian
Hutu armed group, the Forces pour la défense de la démocratie (“FDD”), and the
Armée de libération du Rwanda (“ALiR”).145 In November 1998, Jean-Pierre
Bemba created a new political and military movement, the MLC,146 which
controlled most of Equateur Province. And in March 1999, the RCD split into two
factions: the RCD-Goma and the RCD-ML.147 Each had its own armed group (the
ANC and the APC, respectively). There was still another rebel group called RCDNational
or RCD-N.
143 U.N. Mapping Report, para. 309, Annex 25.
144 Ibid., paras. 19-20, 38, note 36. Rebel groups included: the Rassemblement congolais pour la
démocratie–Goma (RCD-G), the Mouvement national de libération du Congo (MLC), the
Rassemblement congolais pour la démocratie/Kisangani–Mouvement de libération (RCD-K/ML),
the Rassemblement congolais pour la démocratie–National (RCD-N), the Hema militia [Union des
patriotes congolais (UPC) and Parti pour l’unité et la sauvegarde du Congo (PUSIC)], the
Lendu/Ngiti militia [Front nationaliste and intégrationniste (FNI) and Forces de résistance
patriotique en Ituri (FPRI)], the Forces armées populaires congolaises (FAPC), the Mayi-Mayi, the
Mudundu-40, the Forces de Masunzu and the ex-Forces armées rwandaises and Interahamwe (ex-
FAR /Interahamwe).
145 U.N. Mapping Report, para. 310, Annex 25.
146 Ibid.
147 Ibid.
43
2.52 In its 2005 Judgment, the Court observed that “the actions of the various
parties in the complex conflict in the DRC have contributed to the immense
suffering faced by the Congolese population.”148 While Uganda understands that
“the widespread responsibility of the States of the region cannot excuse the
unlawful military action of Uganda”,149 it nevertheless remains true that Uganda
was just one of a very large number of actors involved in the conflict.
2.53 A team deployed by the UN Office of the High Commissioner for Human
Rights to map serious violations of international humanitarian law and international
human rights that occurred in the DRC between 1993 and 2003 (“UN Mapping
Report”) found that all armed groups in the DRC were responsible for illegal acts,
including the DRC and its allies.150
2.54 Among other things, the UN Mapping Report found:
 The DRC security services and the Congolese army executed, tortured
and raped civilians, recruited more than 4,000 child soldiers and
specifically targeted humanitarian workers trying to rescue victims
from bombardments;151
 The Zimbabwean army conducted indiscriminate attacks with heavy
weapons that killed and wounded hundreds of civilians and caused
thousands more to be displaced. They also destroyed healthcare
institutions and places of worship;152
148 Armed Activities (2005), para. 221.
149 Ibid., para. 151.
150 U.N. Mapping Report, para. 525, Annex 25.
151 Ibid., paras. 312-313, 329, 334, 718.
152 Ibid., para. 334.
44
 The Chadian army burned civilians alive on multiple occasions;153 and
 The Angolan army pillaged homes, and killed and raped civilians on
such a massive scale that the UN Mapping Report suggested that the
Angolan military hierarchy condoned and planned the atrocities.154
2.55 In addition to Uganda, the DRC also brought Applications to the Court
instituting proceedings against Burundi and Rwanda alleging, inter alia,
widespread humanitarian abuses.155 Both cases were, however, ultimately removed
from the Court’s General List because, unlike Uganda, neither Burundi nor
Rwanda accepts the compulsory jurisdiction of the Court.
2.56 The UN Mapping Report documented a total of more than 339 serious
violations of human rights and international humanitarian law in the territory of the
DRC between August 1998 and June 2003.156 Yet only a small fraction of these
were linked to Uganda in any way.
2.57 In this respect, it is important to note that, at the height of its deployment,
the UPDF had no more than 10,000 troops in the DRC. By comparison, other
countries and rebel groups had much larger forces. According to MONUC, there
153 Ibid., para. 382.
154 Ibid., para. 332.
155 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda),
Application Instituting Proceedings, 1999, General List No. 117, filed on 23 June 1999; Armed
Activities on the Territory of the Congo (Democratic Republic of the Congo v. Burundi), Application
Instituting Proceedings, 1999, General List No. 115, filed on 23 June 1999; DRC White Paper, p.
134, para. 8.
156 U.N. Mapping Report, paras. 19, 21, Annex 25.
45
were approximately 23,400 Rwandan troops and 12,000 Zimbabwean troops,
among others.157
2.58 The roughly contemporaneous conflict between Eritrea and Ethiopia
provides a useful contrast. During the war ensuing from Eritrea’s invasion of
Ethiopia in 1998, the two sides each deployed at least 300,000 soldiers.158 Each
side ultimately was awarded approximately US$ 170 million in compensation by
the EECC for war-related harm caused to the other side. By contrast, the number
of Ugandan soldiers deployed to the DRC were some 30 times less than the number
of soldiers deployed by either Eritrea or Ethiopia.
2.59 Uganda reiterates that it does not raise these issues to dispute or otherwise
minimise its responsibility for its own acts as found by the Court in 2005.159 It is,
however, important to note that other actors too were responsible for contributing
to the conflict in the DRC and should thus bear responsibility for their own acts
(even if they cannot be brought before this Court).
2.60 It is important to note too that even though the Court found Uganda
responsible for certain acts committed by UPDF soldiers, it expressly found that
Uganda did not have a policy of terror.160 The Court also specifically found that
157 IRIN, 15,312 foreign forces withdrawn so far, says U.N., available at
http://www.irinnews.org/fr/node/203505 (2 Oct. 2002), Annex 93.
158 See, e.g., International Crisis Group, Ethiopia and Eritrea: War or Peace? ICG Africa Report
No. 68 (24 Sept. 2003), p. 9. In its decision on compensation, the Eritrea-Ethiopia Claims
Commission awarded a total of $161,455,000 to Eritrea and a total of US$ 174,036,520 to Ethiopia,
Annex 55.
159 Armed Activities (2005), para. 345.
160 Ibid., para. 212.
46
Uganda was not in control of, or responsible for, the conduct of other armed groups
to which it was providing assistance, such as the MLC and RCD.161
2.61 Reports also indicate that on numerous occasions Uganda actively took
steps to protect civilians from the consequences of hostilities. The UN Mapping
Report, for example, indicated that Uganda (unlike Rwanda) warned the local
population in Kisangani before the beginning of hostilities and, on multiple
occasions, asked that certain civilian areas be evacuated.162 On repeated occasions
in 2002 and 2003, UPDF troops also intervened in Ituri to stop rebel groups’
violence directed at civilians.163
B. UGANDA’S ROLE IN ITURI
2.62 In 2005, the Court found that Uganda was an occupying Power in Ituri and,
as such, was under the obligation “to take all the measures in its power to restore,
and ensure, as far as possible, public order and safety in the occupied area, while
respecting, unless absolutely prevented, the laws in force in the DRC”.164 The
Court also concluded that Uganda failed to comply with those obligations.165
2.63 In evaluating conditions in Ituri, it is important to recall the complex, deeply
rooted conflict that had afflicted the region for more than a century before 1998.
Uganda found itself in an impossible situation. Many of the illegal acts that
161 Ibid., paras. 160, 177.
162 U.N. Mapping Report, paras. 362-363, Annex 25.
163 See, e.g., ibid., paras. 413, 422.
164 Armed Activities (2005), para. 178.
165 Ibid., para. 345.
47
occurred in Ituri were beyond Uganda’s—or indeed anybody’s—power to control.
Uganda neither created the conflict in Ituri, nor was capable of resolving it.
2.64 Given its limited resources, Uganda’s footprint in the DRC remained
limited. According to one expert, “[i]n most rural areas, the UPDF did not station
troops, leaving ample political space for the formation and regulation of public
affairs by local militia groups.”166 These same factors, together with the equatorial
terrain, made it difficult for the UPDF to keep track of militias.167
2.65 Nevertheless, both Uganda and the RCD-ML took steps to mediate the
conflict between the Hema and the Lendu and restore peace. Ultimately, the RCDML’s
attempts to organise inter-community meetings led to the signing of peace
agreements in October 1999.168 This initiative was successful in restoring calm in
the north of Ituri, but tensions continued to break out between Hema and Lendu
militias in the south.169
2.66 In December, Ugandan President Yoweri Museveni invited 18 delegates,
including Lendu and Hema representatives, to Kampala.170 The talks led to the
appointment of Ernest Uringi Padolo, a DRC national who, as a member of the
166 Alex Veit, Intervention as Indirect Rule: Civil War and Statebuilding in the Democratic Republic
of Congo (2010), p. 122, Annex 85.
167 IRIN, Special Report on the Ituri Clashes Part II: The Ugandan position, available at
http://www.irinnews.org/report/12700/drc-irin-special-report-ituri-clas… (3 Mar. 2000),
Annex 92.
168 U.N. Mapping Report, para. 369, Annex 25.
169 Ibid.
170 Ibid., p. 370; Veit, Intervention as Indirect Rule: Civil War and Statebuilding in the Democratic
Republic of Congo (2010), pp. 114-115, Annex 85. IRIN, Special Report on the Ituri Clashes Part
II: The Ugandan position, available at http://www.irinnews.org/report/12700/drc-irin-specialreport-
ituri-clashes-part-two (3 Mar. 2000), Annex 92.
48
Alur community, was seen as neutral in the conflict as governor.171 Based on
complaints from residents of Ituri, Uganda also investigated and dismissed
Ugandan soldiers for misconduct, replacing them with new troops.172 According to
the UN Mapping Report: “These initiatives helped to restore calm to the district
over the course of 2000”.173
2.67 As in other areas of the DRC, shifting alliances and splits within rebel
groups protracted the conflict in Ituri. Internal divisions in the RCD-ML led to
renewed hostilities, which Uganda unsuccessfully tried to mediate.174 Uganda also
attempted to help unite the RCD-ML and MLC within a single movement, the
Front de Libération du Congo (“FLC”), under Jean-Pierre Bemba’s leadership. In
his book (on which the DRC relies in its Memorial175), Bemba emphasised the
limits of Uganda’s power to stop the cycle of violence in Ituri. According to
Bemba, “no political or administrative authority [was] capable of calming tensions
on the ground and to reason with the extremists.176
2.68 The FLC’s efforts to organise consultations with the traditional chiefs were
somewhat successful. The parties signed a memorandum agreement in February
2001 providing for an immediate cessation of hostilities, the disarmament of the
171 U.N. Mapping Report, para. 370, Annex 25.
172 IRIN, Special Report on the Ituri Clashes Part II: The Ugandan position, available at
http://www.irinnews.org/report/12700/drc-irin-special-report-ituri-clas… (3 Mar. 2000),
Annex 92.
173 U.N. Mapping Report, para. 370, Annex 25.
174 Ibid., para. 404.
175 Memorial of the Democratic Republic of the Congo (2016) (hereinafter “DRCM”), paras. 2.47,
2.48, note 129; DRCM, paras. 2.51, 2.52, note 132; DRCM, paras. 2.53, 2.55, 2.85, 5.16.
176 Bemba, Le Choix de la Liberté (2010), p. 100 (Translation by Counsel, original in French:
“Pendant plus de deux mois, aucune autorité politico-administrative n’est en mesure de calmer sur
terrain les tensions et ramener les extrémistes à la raison. Les commandants ougandais semblent
débordés par le déferlement de violences et de massacres.”), DRCM Annex 2.13.
49
militiamen and the dismantling of the training camps. According to the UN
Mapping Report, “the number of violations decreased significantly” during the
months that followed, though “inter-community tension” remained high and “the
militias continued to arm themselves.”177
2.69 Unfortunately, Uganda’s efforts to unite the RCD-ML and MLC and stem
the violence were soon thwarted by the RCD-ML’s alliance with the DRC
government.178 The involvement of the DRC and Rwanda governments, which
provided training and support to rebel groups, contributed to wide-spread abuses
in Ituri.179 In reaction, Thomas Lubanga and Hema soldiers of the APC broke away
from the APC/RCD-ML in February 2002 to form a new political and military
Hema group, the Union des patriotes congolais (“UPC”).180 In response to this, the
APC, supported by the Congolese government, encouraged members of the Lendu
militias to join forces in the Front National Intégrationiste (“FNI”) and the Forces
de résistance patriotique en Ituri (“FRPI”).181 At first, the UPC allied with Uganda
but, in late 2002, it formed an alliance with Rwanda and cut ties with Uganda.182
177 U.N. Mapping Report, para. 408, Annex 25.
178 Ibid., paras. 395, 409; Veit, Intervention as Indirect Rule: Civil War and Statebuilding in the
Democratic Republic of Congo (2010), p. 116, Annex 85.
179 U.N. Security Council, Special Report on the events in Ituri, January 2002 - December 2003,
U.N. Doc. S/2004/573 (16 July 2004), paras. 2-4, DRCM Annex 1.6; Veit, Intervention as Indirect
Rule: Civil War and Statebuilding in the Democratic Republic of Congo (2010), pp. 116-119, Annex
85.
180 U.N. Mapping Report, para. 409, Annex 25.
181 Ibid.
182 Ibid., para. 418.
50
2.70 On many occasions, UPDF soldiers tried to protect the victims of mass
attacks.183 In 2002, UPDF troops intervened in Mabanga, in the Djugu region of
Ituri, to provide cover for the flight of non-natives who were targeted by Hema-
Gegere militiamen.184 And on several occasions in 2003, UPDF soldiers in Kilo
and Bunia intervened to stop the FNI rebel group’s violence directed at civilians.185
2.71 Unable to control the various competing militias in Ituri, Uganda faced a
difficult choice: violate its undertakings under the Lusaka process, increase troop
levels and wade deeper into the turbulent waters of the conflict, or withdraw
altogether.
2.72 Uganda initially opted for the latter. When in April 2001 President
Museveni announced that Ugandan would withdraw its troops from the DRC
immediately, ahead of the schedule set forth in the Lusaka and related agreements,
the UN Secretary-General intervened and specifically asked Ugandan troops to stay
in the DRC and “adhere to the agreed timetable for orderly withdrawal”.186
Uganda’s presence was thus recognised as being, on balance, in the interests of
peace and stability in the region, and certainly better than any alternative.
2.73 Consistent with its Lusaka undertakings, Uganda began the process of
withdrawing from the conflict by participating in the Inter-Congolese dialogue,
183 IRIN, Special Report on the Ituri Clashes Part II: The Ugandan position, available at
http://www.irinnews.org/report/12700/drc-irin-special-report-ituri-clas… (3 Mar. 2000),
Annex 92.
184 U.N. Mapping Report, para. 413, Annex 25.
185 Ibid., paras. 421-422.
186 Armed Activities (2005), para. 97; Letter from Kofi Annan, U.N. Secretary General to Yoweri
Kaguta Museveni, President and Minister of Defence, Republic of Uganda (4 May 2001), Annex
36.
51
starting on 25 February 2002 in Sun City, South Africa.187 Uganda and the DRC
then concluded a final peace agreement in Luanda on 6 September 2002.188 Uganda
fully withdrew its troops by 2 June 2003.189
C. THE POST-WAR SITUATION
2.74 After Uganda’s withdrawal, the violence in the eastern DRC continued as
it had even before 1998.190 To this day, rebel groups in Ituri continue to attack
civilians.191
2.75 When the UPDF left Ituri, thousands of civilians, fearing for their safety,
followed the UPDF troops to Uganda.192 Some settled in Uganda. Others returned
home after fighting briefly subsided, only to come back to Uganda when fighting
erupted again.193
187 U.N. Mapping Report, para. 396, Annex 25.
188 Ibid., para. 397.
189 Armed Activities (2005), para. 264.
190 François Emizet Kisangani, Guerres Civiles dans la République Démocratique du Congo 1960-
2010 (2015), p. 301, Annex 90; U.N. Mapping Report, paras. 423-429, Annex 25.
191 Laurent Oussou, M.O.N.U.S.C.O., La Force de la MONUSCO Invite les Communautés en Ituri
à Dialoguer pour la Paix, available at https://monusco.unmissions.org/la-force-de-la-monuscoinvite-
les-communaut%C3%A9s-en-ituri-%C3%A0-dialoguer-pour-la-paix (11 Aug. 2017), p. 2,
Annex 100; U.N. Office for the Coordination of Humanitarian Affairs, DR Congo: Weekly
Humanitarian Update (19-23 June 2017), available at https://reliefweb.int/report/democraticrepublic-
congo/dr-congo-weekly-humanitarian-update-19-23-june-2017 (23 June 2017), Annex 30;
U.N. Security Council, 7998th Meeting, Security Council Members Stress Need for Democratic
Republic of Congo to Hold Fair, Free, Inclusive Elections without Further Delay, U.N. Doc.
SC/12907 (11 July 2017), Annex 32.
192 U.N. Mapping Report, para. 423, Annex 25; M. Mutuli, ed. V. Tan, U.N.H.C.R., Uganda counts
close to 20,000 new Congolese refugees from Ituri region, available at http://www.unhcr.org/enus/
news/latest/2003/5/3ec7977f4/uganda-counts-close-20000-new-congolese-refugees-ituriregion.
html (19 May 2003), Annex 94.
193 M. Mutuli, ed. V. Tan, U.N.H.C.R., Congolese march to Uganda: “Soldiers before us, death
behind us”, available at http://www.unhcr.org/en-us/news/latest/2003/5/3ecb770f9/congolese52
2.76 Since 2003, Uganda has been the primary host country for refugees from
the DRC.194 As of late 2017, there are more than 236,500 Congolese refugees
remaining in Uganda.195 Uganda’s refugee and asylum policies are widely
recognised as being among the most progressive in the world.196 Uganda provides
all refugees, including those from the DRC, land to farm and access to the same
public services as Ugandan nationals, including education. Refugees also have the
right to work and to establish their own businesses, and enjoy freedom of
movement.197
2.77 The UN Secretary-General stated in June 2017 that “Uganda has had an
exemplary refugee policy in the past and, even today faced with the largest refugee
in-flow of the past year, Uganda remains a symbol of the integrity of the refugee
protection regime.” 198 He called on the international community to support Uganda
march-uganda-soldiers-death-behind.html (21 May 2003), Annex 95; D. Nthengwe, ed. L. Dobbs,
U.N.H.C.R., 30,000 Congolese flee to escape fresh conflict in Ituri district, available at
http://www.unhcr.org/en-us/news/latest/2009/4/49db6d312/30000-congolese…-
ituri-district.html (7 Apr. 2009), Annex 24.
194 U.N.H.C.R., U.N.H.C.R. Global Appeal 2004, Uganda, available at
http://www.unhcr.org/3fc7548c0.html (31 Dec. 2003), p. 113, Annex 17.
195 U.N.H.C.R., U.N.H.C.R. warns of worsening displacement in Democratic Republic of Congo,
available at http://www.unhcr.org/en-us/news/briefing/2017/10/59eefe3e4/unhcr-warnsw…-
displacement-democratic-republic-congo.html?query=uganda (24 Oct. 2017), Annex
34.
197 Charles Yaxley, U.N.H.C.R., Uganda hosts record 500,000 refugees and asylum-seekers,
available at http://www.unhcr.org/567414b26.html (18 Dec. 2015), Annex 29; Catherine
Wachiaya, U.N.H.C.R., Eager refugees cram crowded classrooms in Ungandan school, available
athttp://www.unhcr.org/afr/news/stories/2017/9/59b686104/eager-refugees-c…-
ugandan-school.html (11 Sept. 2017), Annex 33.
198 U.N. Secretary-General, The Secretary-General’s opening remarks to the Uganda Solidarity
Summit on Refugees, available at https://www.un.org/sg/en/content/sg/statement/2017-06-
23/secretary-generals-opening-remarks-uganda-solidarity-summit-refugees (23 June 2017), Annex
31.
53
“because the circumstances in which these sacrifices are being made are extremely
challenging.”199
2.78 Since the end of the conflict, Uganda has also tried to promote peace in the
DRC and in the region more generally. For example, Uganda played an active role
in facilitating talks between the Government of the DRC and the M-23 rebel group,
which resulted in a December 2013 agreement to end hostilities between them.
2.79 The UN Security Council recognized Uganda’s role in a Statement on 14
November 2013 by the President of the Security Council200, which reads in part:
“The Council commends the efforts of President Museveni and Defense Minister
Kiyonga in facilitating the conclusion of these talks.”201 The UN Security Council
further echoed these views in Resolution 2147 (2014). Mary Robinson, Special
Envoy of the UN Secretary-General to the Great Lakes Region, and other UN
officials, also commended Ugandan President Museveni and his Defense Minister,
Crispus Kiyonga, for their “patient and determined leadership” in facilitating that
agreement.202
2.80 Even the DRC government itself has expressly recognised Uganda’s
contributions to stabilisation efforts in the region. At a ministerial meeting in
Johannesburg in 2012, for example, the DRC Minister of Justice and Human Rights
199 Ibid.
200 U.N. Security Council, 7150th meeting, The extension of the Mandate U.N. Stabilization Mission
in the Democratic Republic of the Congo (MONUSCO), U.N. Doc. S/RES/2147 (2014) (28 Mar.
2014), p. 2, Annex 28.
201 U.N. Security Council, Statement by the President of the Security Council 7058th Meeting, U.N.
Doc. S/PRST/2013/17 (14 Nov. 2013), Annex 27.
202 U.N. News Centre, DR Congo: U.N. envoy welcomes end of M23 rebellion, commitment to peace
talks, available at http://www.un.org/apps/news/story.asp?NewsID=46423#.Wl6eR6inGbh (5 Nov.
2013), Annex 26.
54
praised Uganda’s efforts and “expressed the gratitude of the Congolese
Government for the positive role played by Uganda in the stabilization of the Great
Lakes region”.203
*
2.81 Instability and violence have been a feature of life in the DRC since colonial
times. The significant problems the DRC faces did not start in 1998 at the time of
Uganda’s intervention and they did not end in 2003 at the time of its withdrawal.
Even during the period of the conflict, Uganda was just one of a large number of
international and national actors. The DRC therefore cannot hope to ascribe
responsibility to Uganda for everything that happened during the conflict, let alone
before and after the conflict, as it effectively tries to do with the exorbitant
compensation claim presented in its Memorial.
203 Republic of Uganda and Democratic Republic of the Congo, Minutes of the Ministerial Meeting
(13-14 Sept. 2012), p. 2, UM Annex 7.
CHAPTER 3
SYSTEMATIC FLAWS IN THE DRC’S APPROACH TO EVIDENCE
3.1 The Court stated in paragraph 260 of the 2005 Judgment that at this
reparations phase the DRC would have to: (1) “prove” (2) the “exact injury” that
was suffered (3) “as a result of” (4) “specific actions of Uganda” constituting
international wrongful acts for which it is responsible.204 The DRC Memorial fails
to take any of these elements seriously. It fails to sustain its burden of presenting
evidence making any of the required showings with a high degree of certainty.
Indeed, the evidence it offers does not prove the damages it claims to any degree
of certainty, much less to a high degree of certainty. It establishes neither the exact
injury allegedly suffered nor the existence of a causal connection to specific actions
of Uganda.
3.2 Rather than come forward with the requisite evidence, the DRC essentially
invokes the Court’s findings in the 2005 Judgment as, by themselves, proving that
Uganda must pay compensation in the excessive amount requested (US $13.4
billion). This approach is plainly inconsistent with the express wording of
paragraph 260 of the 2005 Judgment. It is also inconsistent with the DRC’s own
previous position. In the 2005 Judgment, the Court observed: “The DRC
acknowledges that ‘for purposes of determining the extent of reparation it must
specify the nature of the injury and establish the causal link with the initial
wrongful act’”.205
204Armed Activities (2005), para. 260.
205 Ibid., para. 258.
56
3.3 The DRC knows well what the Court decided in the 2005 Judgment and
what it did not. Noting the DRCs’ repeated assertion that it was seeking a judgment
“of principle” at the merits phase, the DRC’s Judge ad hoc, Judge Verhoeven,
characterised the Court’s Judgment as in the nature of a “declaratory” decision,206
meaning that it only generally passed upon the DRC’s claim that Uganda acted
wrongfully in certain categories, without addressing the specific unlawful conduct
of Uganda within those categories.
3.4 Thus, as Judge Verhoeven observed, “it is only in a subsequent phase of the
proceedings, once there has been a finding of unlawful conduct, that the Court is
called upon to decide the form and extent of the reparation, failing agreement
thereon between the parties”.207 He continued that in “the present case the existence
of the injuries is beyond doubt. What is distinctive here however is that the Court
has treated them by category, as it were, without ruling on each injurious
‘incident’”.208
3.5 Judge Verhoeven recognised that such detailed rulings would be necessary
at the reparations phase.
“In reality, the form and amount of reparation will
not be the only questions to be decided by the Court
if the Parties fail to agree on them; it will also be for
the Court to establish, in regard to those “incidents”
falling within the category on which the Court has
ruled, the causal nexus between an injury suffered
206 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Declaration of Judge ad hoc Verhoeven, I.C.J. Reports 2005 (hereinafter “Declaration of Judge ad
hoc Verhoeven”), para. 2.
207 Declaration of ad hoc Judge Verhoeven, para. 2.
208 Ibid., para. 2(a).
57
and an act by the Respondent engaging its
responsibility”.209
He also recognised that securing such rulings would be no easy task: “[I]n the
context of an armed conflict the causal connection between the injury and the
violation of the law will often be difficult to prove, at least under the standards
traditionally applied for this purpose”.210
3.6 Uganda wishes to make clear that it is not arguing that the DRC must relitigate
the findings made in 2005. The point is, however, that those findings were
made at a very general level; the Court had before it broad evidence that the
violations occurred, sufficient to establish that Uganda committed certain
categories of wrongful acts, over a general period of time, in certain general areas
of the DRC. Those findings were not specific to any particular incident involving
injury that occurred as a result of Uganda’s unlawful acts, including the scope and
valuation of such injury.
3.7 This is clear from the text of the 2005 Judgment itself, in which the Court
expressly stated that it was not making any findings of fact with respect to specific
incidents of harm: “In reaching its decision on the DRC claim, it is not necessary
for the Court to make findings of fact with regard to each individual incident
alleged”.211
3.8 As Judge Verhoeven recognised, it is therefore incumbent on the DRC at
this phase of the proceedings to present evidence with respect to specific
“incidents” falling within each category of wrongful acts on which the Court ruled
209 Ibid.
210 Ibid., para. 5.
211 Armed Activities (2005), para. 239.
58
in 2005. Just as was required of the applicant States in the Corfu Channel and
Diallo cases (discussed below), the DRC must prove, with convincing evidence,
the specific harm that the DRC suffered as a result of specific wrongful acts of
Uganda, as well as the valuation of that harm.
3.9 The DRC Memorial fails in this task. Although it pursues different tactics,
in most instances the DRC adopts the view that it is enough to provide a few
“illustrations” of circumstances where harm allegedly occurred, in combination
with various numbers appearing in a few reports by international organisations or
NGOs, which it then combines with arbitrary “multipliers”, “distribution keys” and
“percentages”, to come up with extraordinarily inflated compensation claims.
3.10 In fact, the DRC is remarkably candid in acknowledging that it makes no
meaningful effort to prove the exact injury suffered as a result of specific incidents
of internationally wrongful actions of Uganda. It states, for example, that it will not
“individualize and identify each specific injury caused during” the war.212
Likewise, it states that “acts of damage will not be distinguished based on the rule
of international law that was violated”.213
3.11 Rather than present evidence to the Court now demonstrating the exact
nature of harm to persons or property, and the connection of such harm to wrongful
acts by Uganda, the DRC proposes that it simply be given a large sum of money,
which will then be distributed later to persons through “a fund/commission” that
is “charged with establishing a procedure by which the victims will be able to
212 DRCM, para. 2.07.
213 DRCM, para. 2.05 (Translation by Counsel, original in French: “les dommages ne seront pas
distingués en fonction de la règle de droit international qui a été violée”.).
59
present their individual claims for restitution, reviewing these claims and
distributing the sums due as compensation”.214
3.12 Uganda considers this is an admission that the DRC’s current claims bear
no real relationship with the specific persons or property that purportedly suffered
harm. Uganda respectfully submits that the Court should not countenance this
“cart-before-the horse” approach, which is incompatible with the Court’s express
determination in 2005 as to what the DRC would have to prove at this reparation
phase.
*
3.13 The balance of this Chapter will expose the systemic flaws that characterise
the DRC’s approach to evidence throughout its Memorial. Section I begins by
demonstrating that the DRC bears the burden of proof on its claims for reparation.
Section II then shows that the DRC must carry that burden by presenting
convincing evidence proving, with a high level of certainty, (1) that financially
assessable injury occurred as the result of the violations of international law
committed by Uganda, and (2) the valuation of such injury. Finally, Section III
demonstrates that the DRC does not prove its damages systematically and that the
principal types of evidence on which it relies are deeply flawed. As such, the DRC
has not carried its burden of proof.
214 DRCM, para. 7.51 (Translation by Counsel, original in French: “chargée de la mise sur pied de
la procédure par laquelle les victimes pourront présenter leurs demandes de réparation individuelles,
de l’examen de ces demandes et de la répartition des sommes dues à titre d’indemnisation”.).
60
I. The DRC Bears the Burden of Proof
3.14 A fundamental principle of international procedural law—one that the
Court has repeatedly endorsed—is that the party claiming certain facts bears the
burden of establishing them through sufficient evidence (onus probandi incumbit
actori). In Temple of Preah Vihear, the Court stated that the “burden of proof in
respect of [facts and contentions which are asserted or put forward by one Party or
the other] will of course lie on the Party asserting or putting them forward”.215 More
recently, in Pulp Mills on the River Uruguay, the Court reiterated that “in
accordance with the well-established principle of onus probandi incumbit actori, it
is the duty of the party which asserts certain facts to establish the existence of such
facts. This principle has been consistently upheld by the Court”.216
3.15 These findings were made in the context of deciding facts at the merits
stage, yet the same principle holds true with respect to proving facts at the
215 Temple of Preah Vihear (Cambodia v. Thailand), Judgment, I.C.J. Reports 1962, p. 16.
216 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, para.
162. See also Case Concerning Military and Paramilitary Activities In and Against Nicaragua
(Nicaragua v. United States of America) Merits, Judgment, I.C.J. Reports 1986 (hereinafter
“Nicaragua v. United States of America (Merits, 1986)”), para. 101 (“[I]t is the litigant seeking to
establish a fact who bears the burden of proving it”.); 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 (hereinafter “Bosnia and Herzegovina v. Serbia and
Montenegro (2007)”), para. 204 (“On the burden or onus of proof, it is well established in general
that the applicant must establish its case and that a party asserting a fact must establish it”.);
Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge
(Malaysia/Singapore), Judgment, I.C.J. Reports 2008, para. 45 (“It is a general principle of law,
confirmed by the jurisprudence of this Court, that a party which advances a point of fact in support
of its claim must establish that fact”.); Maritime Delimitation in the Black Sea (Romania v.
Ukraine), Judgment, I.C.J. Reports 2009, para. 68 (“As the Court has said on a number of occasions,
the party asserting a fact as a basis of its claim must establish it”.); Ahmadou Sadio Diallo (Republic
of Guinea v. Democratic Republic of the Congo), Judgment, I.C.J. Reports 2012 (hereinafter “Diallo
(2012)”), para. 15 (“As a general rule, it is for the party which alleges a fact in support of its claims
to prove the existence of that fact”.); Application of the Interim Accord of 13 September 1995 (the
former Yugoslav Republic of Macedonia v. Greece), Judgment, I.C.J. Reports 2011, para. 72 (“[I]n
general, it is the duty of the party that asserts certain facts to establish the existence of such facts”.).
61
reparations stage. At the reparation phase, there are various types of facts that were
not at issue in the merits stage but that must be determined to support a claim for
reparation. These include the location and time of an incident during which harm
occurred, the number persons who died or were injured as a result of that incident
(or the property harmed), and the connection between that incident and the acts of
the respondent State that were in violation of international law. Likewise, to the
extent that national law might be relevant for demonstrating a particular
proposition, such as the amount typically paid for a wrongful death in a particular
country (the DRC has cited to its national case law for this purpose), establishing
the content of that national law is an issue of fact that must be proven.217
3.16 Thus, in the Corfu Channel case, the Court stated that a reparation phase
was necessary because “the United Kingdom Government had not submitted its
evidence” with regard to the various sums claimed and Albania had not yet
responded.218 Consequently, at the reparation phase, the Court expected the United
Kingdom to submit evidence in support of the three heads of damages it claimed:
(1) claims in respect of deaths and injuries of naval personnel; (2) damage to the
destroyer Volage; and (3) loss of the destroyer Saumarez.219
3.17 For each of these claims, the United Kingdom provided sworn affidavits
and documentary evidence directly supporting the sums requested. Notably, it did
not pursue reparation for more speculative or indirect harms. For example, it made
217 Certain German Interests in Polish Upper Silesia, Merits Judgment, 1926, P.C.I.J. Series A, No.
7, p. 19 (“From the standpoint of International Law and of the Court which is its organ, municipal
laws are merely facts which express the will and constitute the activities of States”.).
218 Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania),
Compensation Judgment, I.C.J. Reports 1949 (hereinafter “Corfu Channel (Compensation, 1949)”),
p. 245.
219 Corfu Channel (Compensation, 1949), pp. 248-250.
62
no claims for: sailors who were killed but had no dependents; the cost of training
other sailors to replace those killed; the loss of clothing and personal effects; the
loss of the use of the Saumarez during the period necessary to replace it; or the loss
of the use of Volage during its repairs.220
3.18 In the Diallo case, notwithstanding its findings on the merits that
international law had been violated, the Court framed the applicant State’s burden
at the reparations phase in terms of proving, for each “head of damage”, the facts
establishing three elements: (1) whether there exists specific injury falling under
that head of damage; (2) whether such injury is attributable to the respondent State;
and (3) the valuation of such injury.
3.19 The Court stated in Diallo that “the starting point in the Court’s inquiry will
be the evidence adduced by Guinea to support its claim under each head of
damage…”.221 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’. … If the existence of injury and causation is established, the Court
will then determine the valuation”.222
3.20 This is not to say that an applicant State must again prove the facts that
established the respondent State’s responsibility at the merits phase. But it must
prove the facts that establish an entitlement to the specific reparation sought by the
220 Observations submitted under the Order of the Court of 9th April 1949, by the Government of
the United Kingdom of Great Britain and Northern Ireland, in Corfu Channel (Compensation,
1949), p. 392.
221 Diallo (2012), para. 16.
222 Diallo (2012), para. 14 quoting to Bosnia and Herzegovina v. Serbia and Montenegro (2007).
63
applicant, notably with respect to the existence, causation and valuation of
particular injuries.
3.21 If the applicant State, for example, asserts that a general violation of
international law resulted in compensatory harm valued at US$ five million, it need
not again prove that the general violation occurred or that the respondent State
bears responsibility for it. What it must do is present facts proving (1) the specific
injury that occurred; (2) that the specific injury resulted from wrongful conduct
attributable to respondent State; and (3) that the specific injury is properly valued
at US$ five million. It is precisely for these reasons that the Court stated in its 2005
Judgment that the DRC must “prove the exact injury that was suffered as a result
of specific actions of Uganda constituting international wrongful acts for which it
is responsible”.223
3.22 The consequence of failing to discharge this burden at the reparation phase
is that the applicant State cannot receive a decision in its favor.224 For example, the
Court determined in the case concerning the Genocide Convention (Bosnia v.
Serbia) that Serbia violated its obligation of prevention under the Genocide
Convention. At the same time, it did not find proven that Serbia’s wrongful conduct
resulted in injury.
3.23 The Court stated: “Since it now has to rule on the claim for reparation, it
must ascertain whether, and to what extent, the injury asserted by the Applicant is
the consequence of wrongful conduct by the Respondent with the consequence that
223 Armed Activities (2005), para. 260. 224 Nicaragua v. United States of America (Merits, 1986), para. 101 (“it is the litigant seeking to
establish a fact who bears the burden of proving it; and in cases where evidence may not be
forthcoming, a submission may in the judgment be rejected as unproved”).
64
the Respondent should be required to make reparation for it…”.225 The Court
determined that there did not exist the degree of certainty needed to establish that
the harm would have been averted if Serbia had complied with its obligation.
Bosnia was therefore not entitled to any financial compensation for the wrongful
act. It was only entitled to reparation in the form of satisfaction.226
3.24 In that instance, the issue concerned an inability to prove a sufficient causal
nexus between the wrongful act and the alleged harm. Nevertheless, the principle
remains the same for all aspects of what must be proven at the reparation phase.
Notwithstanding having prevailed on the merits, the applicant State still bears the
burden of proving the facts showing whether and to what extent the alleged injury
is the consequence of the respondent State’s wrongful conduct, and its valuation.
3.25 Failure to do so does not alter the determinations on the merits. It means
only that the applicant State failed to produce the evidence necessary to satisfy the
Court as to the existence of a specific injury, the existence of a causal connection
between that injury and the actions of the respondent State, and the valuation of the
injury.
II. To Sustain Its Burden, the DRC Must Present Convincing Evidence
Proving Financially Assessable Harm with a High Level of Certainty
3.26 The prior section showed that the DRC bears the burden of proving that
specific injury occurred as a result of the violations of international law committed
by Uganda, as well as the valuation of such harm. This section will demonstrate
that to meet this burden, the DRC must present to the Court convincing evidence
225 Bosnia and Herzegovina v. Serbia and Montenegro (2007), para. 462 (emphasis added).
226 Ibid., para. 463.
65
that establishes, with a high level of certainty, the three key elements at issue in
this phase of the case: (1) the existence of specific harm; (2) the causal nexus
between Uganda’s wrongful act and that harm; and (3) the valuation of such
harm.227 These three requirements are addressed in turn below.
A. THE REQUIREMENT TO PRESENT CONVINCING EVIDENCE PROVING SPECIFIC HARM WITH A HIGH LEVEL OF CERTAINTY
3.27 The Court’s jurisprudence indicates that charges of “exceptional gravity”
require a “special degree of certainty”228 and that evidence must “suffice to
constitute decisive legal proof” or “conclusive evidence”.229 In Genocide
Convention (Bosnia v. Serbia), the Court stated:
“The Court has long recognized that claims against
a State involving charges of exceptional gravity must
be proved by evidence that is fully conclusive. …
The Court requires that it be fully convinced that the
allegations made in the proceedings … have been
clearly established. The same standard applies to the
proof of attribution for such acts”.230
3.28 Even in situations not involving charges of exceptional gravity, the Court
has stated that it “requires proof at a high level of certainty appropriate to the
seriousness of the allegation”.231
227 Armed Activities (2005), para. 260.
228 Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits
Judgment, I.C.J. Reports 1949 (hereinafter “Corfu Channel (Merits, 1949)”), p. 17.
229 Corfu Channel (Merits, 1949), pp. 16-17.
230 Bosnia and Herzegovina v. Serbia and Montenegro (2007), para. 209 (emphasis added).
231 Bosnia and Herzegovina v. Serbia and Montenegro (2007), para. 210 (emphasis added)
(indicating the appropriate standard in assessing whether Serbia had violated its obligation to
prevent genocide and to extradite persons charged with genocide).
66
3.29 At the merits stage of this case, the Court likewise proceeded on the basis
that allegations of exceptional gravity must be proven with convincing evidence.
The Court declined to reach findings when “it has not been presented with evidence
that can safely be relied on in a court of law to prove” the allegation,232 or when
the evidence was not “convincing,”233 “probative,”234 or “sufficient”.235
3.30 Although the present proceedings concern reparation, not the merits, many
of the DRC’s allegations―such as the number of persons allegedly killed as the
result of Uganda’s wrongful acts―nevertheless constitute assertions of
“exceptional gravity”. There is, for example, exceptional gravity in alleging that
Uganda is responsible for the deaths of 180,000 people, rather than, say, 100
people. The DRC must therefore be expected to establish these new facts with a
high level of certainty through convincing evidence.
232 Armed Activities (2005), para. 130 (declining to find proven “that there was an agreement
between the DRC and the Sudan to participate in or support military action against Uganda; or that
any action by the Sudan (of itself factually uncertain) was of such a character as to justify Uganda’s
claim that it was acting in self-defence”.).
233 Ibid., para. 91 (“The Court makes no findings as to the responsibility of each of the Parties for
any violations of the Lusaka Agreement. It confines itself to stating that it has not received
convincing evidence that Ugandan forces were present at Mobenzene, Bururu, Bomongo and
Moboza in the period under consideration by the Court for purposes of responding to the final
submissions of the DRC”.).
234 Ibid., para. 123 (“The Court has next examined the evidence advanced to support the assertion
that the Sudan was supporting anti-Ugandan groups which were based in the DRC, namely FUNA,
UNRF II and NALU. This consists of a Ugandan political report of 1998 which itself offers no
evidence, and an address by President Museveni of 2000. These documents do not constitute
probative evidence of the points claimed”.).
235 Ibid., para. 173 (“In order to reach a conclusion as to whether a State, the military forces of which
are present on the territory of another State as a result of an intervention, is an ‘occupying Power’
in the meaning of the term as understood in the jus in bello, the Court must examine whether there
is sufficient evidence to demonstrate that the said authority was in fact established and exercised by
the intervening State in the areas in question”.).
67
3.31 In its prior cases involving reparation, the Court has always insisted that
States fulfill their obligation to prove specific harm, causation and valuation
through convincing evidence. It has also not countenanced extravagant and
unsustainable claims. The Court’s approach to evidence at the reparation phase in
the Corfu Channel case is instructive. Although Albania did not appear in the case,
the Court stated that it was required to decide whether the U.K. submissions on
reparation were “well founded in fact and law”.236 The Court observed that this
approach that “does not compel the Court to examine their accuracy in all their
details; for this might in certain unopposed cases prove impossible in practice. It is
sufficient for the Court to convince itself by such methods as it considers suitable
that the submissions are well founded”.237 In determining the United Kingdom’s
claims were “well-founded” and “proved”,238 the Court had before it detailed
evidence from the United Kingdom speaking directly to the compensation
claimed.239
3.32 With respect to death and injury of naval personnel, the United Kingdom
submitted a sworn affidavit and list prepared by the U.K. Ministry of Pensions
specifically identifying the individual sailors killed, along with information
regarding the exact pensions and awards paid to their dependents, the costs of
administering those pensions and awards, costs of medical and surgical treatment
236 Corfu Channel (Compensation, 1949), p. 248.
237 Ibid.
238 Ibid., pp. 249-250.
239 The Court also benefited from an experts’ report of 1 Dec. 1949 in Annex 2 of the Compensation
Judgment. See Corfu Channel (Compensation, 1949), p. 258.
68
in the case of disabled seamen, and an allowance to cover the probability of future
increases of individual pensions.240
3.33 With respect to damage to the U.K. destroyer Volage, the United Kingdom
submitted both an initial estimate of the cost of repairing Volage 241 and a sworn
affidavit from the Civil Assistant to the Director of Dockyards of the Admiralty
detailing the specific costs of labor, materials, contract supplies and other charges
actually incurred for the repairs.242
3.34 With respect to the loss of the U.K. destroyer Saumarez, the Court was
provided a sworn affidavit and a detailed report as to the specific damage by an
official of the U.K. Naval Construction Department as the Admiralty.243
3.35 The Court also had a sworn affidavit from an official of the Material
Finance Branch of the Admiralty showing the specific value of stores and
equipment lost on both destroyers.244 For both vessels, the U.K. also provided
240 United Kingdom Memorial, in Corfu Channel (Compensation, 1949), Annex 12. See also
Observations submitted under the Order of the Court of 9th April 1949, by the Government of the
United Kingdom of Great Britain and Northern Ireland, in Corfu Channel (Compensation, 1949),
pp. 392-397.
241 United Kingdom Memorial, in Corfu Channel (Compensation, 1949), Annex 14.
242 Observations submitted under the Order of the Court of 9th April 1949, by the Government of
the United Kingdom of Great Britain and Northern Ireland, in Corfu Channel (Compensation,
1949), pp. 393, 398.
243 United Kingdom Memorial in Corfu Channel (Compensation, 1949), Annex 10. See also
Observations submitted under the Order of the Court of 9th April 1949, by the Government of the
United Kingdom of Great Britain and Northern Ireland, in Corfu Channel (Compensation, 1949),
pp. 393, 399.
244 Observations submitted under the Order of the Court of 9th April 1949, by the Government of
the United Kingdom of Great Britain and Northern Ireland, in Corfu Channel (Compensation,
1949), pp. 393, 398-99.
69
photographs taken shortly after the October 1946 explosions showing the damage
to the vessels and the mines that caused the damage.245
3.36 Likewise, in the Diallo case, the Court required convincing evidence of the
specific harm to support the Republic of Guinea’s request for damages. In that
instance, the Court’s task was more complex than in Corfu Channel because the
respondent, the DRC, contested the extent of the specific injury (for example, what
items existed in Mr Diallo’s apartment), whether the specific harm was the result
of the DRC’s unlawful acts (for example, whether Mr Diallo was prevented from
transferring such items back to Guinea), and the valuation of such harm (for
example, the value of the items).
3.37 In Diallo, with the shoe on the other foot, the DRC repeatedly and
unequivocally insisted on the need for convincing evidence of specific harm.246
Notwithstanding its prior general finding of liability against the DRC, the Court
agreed and declined to award compensation in many instances where Guinea failed
245 United Kingdom Memorial, in Corfu Channel (Compensation, 1949), Annex 8.
246 See, e.g., Counter-Memorial of the Democratic Republic of the Congo, Question of
Compensation Owed to Guinea by the DRC, in Diallo (2012), para. 2.36 (“[T]he Applicant must
either produce documentary evidence in support of its financial claims or withdraw those claims for
lack of evidence”.); Ibid., para. 2.35 (“[I]n the present case, Guinea has failed to produce any
evidence attesting to the existence of Mr. Diallo’s alleged professional income or to his loss of
earnings in respect of that income”.); Ibid., para. 2.42 (“It is thus now for Guinea, at the present
stage of the proceedings, to provide the Court with evidence under three heads: (1) credible and
convincing evidence of the genuine, rather than imaginary, existence of Mr. Diallo’s personal
belongings; (2) evidence of the real, rather than hypothetical, loss of those belongings following his
expulsion; and (3) credible and irrefutable proof of their financial value”.); Ibid., para. 2.60 (“[I]t
fails to produce to the Court two certificates of registration — the only documents of title recognized
under Congolese law—in respect of these two plots of land, in order to prove their existence”.);
Ibid., para. 2.64 (“Guinea has not justified to the satisfaction of the Court, through probative
documents filed by it, the amount of the compensation”.).
70
to present convincing evidence concerning the specific extent of the alleged harm,
whether such harm was attributable to the DRC or the valuation of such harm.
3.38 Guinea advanced two general heads of damage for the relevant violation of
international law with respect to a specific, identified individual, Mr Diallo, who
had been wrongfully expelled from the DRC: material damage (loss of personal
property, bank assets and earnings) and non-material damage (which Guinea
referred to as “mental and moral damage” and the DRC referred to as “nonpecuniary
injury”).247 With respect to material damage, Guinea sought US$
550,000 for the loss of certain high value items and furnishings in Mr Diallo’s
apartment, as well as the loss of bank account assets. It also sought roughly US$
6.5 million for loss of earnings during Mr Diallo’s detention and subsequent
expulsion. The DRC contested the high amounts sought, arguing they were
unsupported by convincing evidence. The Court agreed.
3.39 For the alleged loss of items and furnishings in the apartment, Guinea
presented an inventory that specifically listed some furnishings and other items,
but without any evidence as to what happened to them after Mr Diallo’s
expulsion.248 Consequently, the DRC argued that no compensation should be
awarded. The Court largely agreed, finding that “taken as a whole, Guinea has
failed to prove the extent of the loss of Mr Diallo’s personal property listed on the
inventory and the extent to which any such loss was caused by the DRC’s unlawful
conduct”.249
247 Diallo (2012), para. 18.
248 Ibid., para. 31.
249 Ibid.
71
3.40 Moreover, even assuming that Guinea could establish “that the personal
property on the inventory was lost and that any such loss was caused by the DRC’s
unlawful conduct, Guinea offers no evidence regarding the value of the items on
the inventory (either with respect to individual items or in the aggregate)”.250 The
Court did, however, award US$ 10,000 for loss of such personal property,
explaining that regardless of the amount or value of such property, Mr Diallo would
have incurred costs in moving his personal property back to Guinea after his
unlawful expulsion.251
3.41 With respect to the high value items, which were not listed in the inventory,
the DRC argued that no evidence had been presented in support of Guinea’s request
for compensation. Here, too, the Court agreed, stating that “Guinea has put forward
no evidence whatsoever that Mr Diallo owned these items at the time of his
expulsion, that they were in his apartment if he did own them, or that they were
lost as a result of his treatment by the DRC”.252 As such, no compensation was
awarded.
3.42 As for the alleged loss of bank assets, the DRC again argued that no
compensation could be awarded due to a lack of evidence providing any specifics
about the alleged accounts. Here, once again, the Court agreed, finding:
“Guinea offers no details and no evidence to support
its claim. There is no information about the total sum
held in bank accounts, the amount of any particular
account or the name(s) of the bank(s) in which the
account(s) were held. Further, there is no evidence
demonstrating that the unlawful detentions and
250 Ibid., para. 32.
251 Ibid., paras. 33, 36, 55, 60(2).
252 Ibid., para. 34.
72
expulsion of Mr. Diallo caused the loss of any assets
held in the accounts”.253
Accordingly, no compensation was awarded.
3.43 The Court likewise accepted the DRC’s position that no compensation
should be awarded for Mr Diallo’s alleged loss of earnings, finding that “Guinea
offers no evidence to support the claim. There are no bank account or tax records.
There are no accounting records [of companies] showing [they] had made such
payments [to Mr Diallo that were disrupted]”.254
3.44 The situation with respect to non-material damage was different because
facts proved at the merits stage showed specific harm to a particular individual.
The Court had before it direct evidence that Mr Diallo was detained for 66 days
(from 5 November 1995 until 10 January 1996) and again for 6 days (25 to 31
January 1996), before being expelled by the DRC on 31 January 1996. Moreover,
the fact that such harm was the result of the DRC’s violation of international law
was uncontested at the reparation phase. Consequently, based on the proven
existence of specific harm at a particular time and in a particular place to an
identified person, the Court found that “the DRC’s wrongful conduct caused Mr
Diallo significant psychological suffering and loss of reputation”.255 Although
Guinea sought US$ 250,000 for such harm, the Court awarded US$ 85,000.256
3.45 Thus, although the Court at the merits stage had found the DRC liable for
violating international law in its detention and expulsion of Mr Diallo, that alone
253 Ibid., para. 41.
254 Ibid.
255 Diallo (2012), para. 21.
256 Ibid., paras. 25, 61(1).
73
neither constituted evidence as to the specific harm resulting from such violation,
nor evidence of the valuation of such harm. The Court still expected Guinea to
produce convincing evidence concerning the extent of the alleged harm, the
connection of that harm to the DRC’s wrongful act and the valuation of such harm.
3.46 Having appeared as respondent in the Diallo case, and having itself insisted
on these evidentiary requirements in those proceedings, the DRC know them well.
Its failure to satisfy them in this case (as will be shown in subsequent chapters of
this Counter-Memorial) is thus particularly curious.
B. THE REQUIREMENT THAT THE HARM BE FINANCIALLY ASSESSABLE
3.47 The DRC Memorial principally advances claims for monetary
compensation. Under the rules relating to State responsibility for internationally
wrongful acts, obtaining compensation for a harm requires that the harm be
financially assessable. Article 36 of the ILC Articles on Responsibility of States
for Internationally Wrongful Acts (“Articles on State Responsibility”) provides, in
paragraph 1, that reparation for damage caused may be in the form of compensation
and then, in paragraph 2, provides: “The compensation shall cover any financially
assessable damage including loss of profits insofar as it is established”.257
3.48 One element of this rule is that the alleged harm must be capable of being
quantified in financial terms. The ILC’s commentary states: “The scope of this
257 International Law Commission, Draft Articles on Responsibility of States for Internationally
Wrongful Acts, with commentaries (2001) (hereinafter “ARSIWA”), Art. 36(2).
74
obligation is delimited by the phrase ‘any financially assessable damage’, that is,
any damage which is capable of being evaluated in financial terms”.258
3.49 Another element of this rule is that a State cannot advance a claim that, in
essence, seeks compensation for abstract and unspecified damages. It must target
its compensation request to specific damage to persons or property. Hence, the
ILC’s commentary also states: “The qualification ‘financially assessable’ is
intended to exclude compensation for what is sometimes referred to as ‘moral
damage’ to a State, i.e., the affront or injury caused by a violation of rights not
associated with actual damage to property or persons: this is the subject matter of
satisfaction, dealt with in article 37”.259
3.50 The approach to evidence the DRC takes in its Memorial is not oriented
toward financially assessable harm. While it refers to harm to persons, property,
mineral resources, animals and the economy in general, the DRC makes little
attempt to focus its evidence on any specific aspects of such harms (as discussed
in greater detail in Section C below and in the following chapters). Persons on
whose behalf the DRC’s claim is purportedly based are not identified with any
degree of specificity, and there is no evidence with respect to their location, age,
income and so on. Property on whose behalf the DRC’s claim is based is also not
identified in any degree of specificity, including its location, date of harm, extent
of harm, book value or liquidation value.
3.51 Instead, while paying lip service to such financially assessable harms, the
DRC’s claims are actually based on highly-generalised “evidence” that invites the
258 ARSIWA, Art. 36, cmt. 5.
259 ARSIWA, Art. 36, cmt. 1.
75
awarding of lump-sum amounts,260 an approach that cannot be viewed as assessing
“actual damage to property or persons”. As such, the evidence the DRC presents
demonstrates that its claims are, in reality, a massive claim for moral damage to the
DRC itself. But, as stated, this type of claim is not financially assessable and should
be addressed through satisfaction, not compensation.
C. THE DISTINCTION BETWEEN TRADITIONAL INTER-STATE CLAIMS PROCEEDINGS AND SPECIALISED TECHNIQUES OF CONTEMPORARY MASS CLAIMS PROGRAMS
3.52 The DRC cannot avoid its obligation to present convincing evidence of
financially assessable harm through a crude resort to lump-sum amounts that are
characteristic of mass claims programs. In a mass-claim setting, States may agree
to approach the award of damages for injuries sustained in a very different manner
from that followed by international courts and tribunals, including through the use
of a claims commission mandated to process claims through expedited procedures,
which may involve specialised techniques such as data-matching, statistical
sampling and regression analysis.
3.53 In such instances, fixed levels of compensation are utilised for particular
categories of claims, which requires at the outset: (1) defining the class of claimants
entitled to receive compensation; (2) establishing a level of fixed-amount
compensation for that class with respect to a specific type of injury; (3) developing
the evidentiary threshold necessary for an individual to prove membership in the
class; (4) designing claims forms to be completed by or on behalf of each individual
260 DRCM, para. 1.18. See also DRCM, para. 6.76 (“In this respect, there is nothing preventing the
Court from fixing a lump sum, which covers both compensation for the various damages suffered
and the exemplary satisfaction which is required”.) (Translation by Counsel, original in French: “A
cet égard, rien n’interdit à la Cour de fixer une somme globale qui recouvre à la fois l’indemnisation
des différents dommages subis et la satisfaction exemplaire qui est requise”.).
76
along with the necessary evidence; and (5) establishing a sampling mechanism to
verify the submitted evidence, thereby avoiding the examination of the evidence
submitted for every claim.
3.54 When this is done, claims forms, sampling techniques and regression
analysis are used as a surrogate for traditional international law and procedure. Yet,
while such mass claims techniques can allow for the expedited processing of claims
based on a minimal evidentiary showing, they typically require a very extensive
administrative structure to process the claims. They also typically result in levels
of fixed-amount compensation that are lower than would likely be the case if actual
damages were assessed.261
3.55 The UNCC established by the UN Security Council262 to address the
injuries resulting from Iraq’s invasion of Kuwait in 1990-1991 is a good example
of such a commission. The UNCC operated for approximately 15 years, employing
261 See generally M. Frigessi di Rattalma & T. Treves, The United Nations Compensation
Commission: A Handbook (1999); Hans Van Houtte, “Mass Property Claim Resolution in a Post-
War Society: The Commission for Real Property Claims in Bosnia and Herzegovina”, in
INSTITUTIONAL AND PROCEDURAL ASPECTS OF MASS CLAIMS SETTLEMENT SYSTEMS (Permanent
Court of Arbitration ed., 2000); Redressing Injustices Through Mass Claims Processes: Innovative
Responses to Unique Challenges (Permanent Court of Arbitration ed., 2006); H. Holtzmann & E.
Kristjánsdóttir, International Mass Claims Processes (2007); H. Van Houtte, et al., Post-War
Restoration of Property Rights Under International Law, Vol. I: Institutional Features and
Substantive Law (2008); H. Van Houtte, et al., Post-War Restoration of Property Rights Under
International Law, Vol. 2: Procedural Aspects (2008); Roger P. Alford, “The Claims Resolution
Tribunal” in THE RULES, PRACTICE, AND JURISPRUDENCE OF INTERNATIONAL COURTS AND TRIBUNALS (Giorgetti ed., 2012); L. Brilmayer et al., International Claims Commissions: Righting
Wrongs After Conflict (2017).
262 See U.N. Security Council, 2981st Meeting, Resolution 687 (1991), U.N. Doc. S/RES/687, (8
Apr 1991), para. 16, Annex 1.
77
(at its height) roughly 300 lawyers, accountants, loss adjusters and information
technology specialists to dispose of a total of about 2.7 million claims.263
3.56 To do its work, the UNCC adopted a highly complex system in which
claims were divided into categories, with certain fixed amounts to be used for the
expedited processing of claims on the basis of minimal evidence, and with higher
amounts awarded for less expedited claims based on greater evidence.264 Individual
claimants presented claims to the UNCC through their governments (or through
international organisations in the case of individuals who were not in a position to
have their claims filed by governments). Payments were sent by the UNCC to the
governments (or international organisations) that originally submitted the claims,
which were then responsible for distribution of the compensation to successful
claimants.
3.57 While such an approach has its merits,265 it is not appropriate in the context
of a traditional State-State proceeding like this one where mass claims procedures
263 See United Nations Compensation Commission, Home, available at http://www.uncc.ch/home
(last accessed 22 Jan. 2018).
264 For Category A claims (individuals who had to depart from Kuwait or Iraq), successful claims
were set at a maximum of US$ 4,000 for individuals and US$ 8,000 for families, so long as recovery
was not sought in any other category. For Category B claims (individuals who suffered serious
personal injury or whose spouse, child or parent died as a result of Iraq’s invasion and occupation
of Kuwait), successful claims were set at US $2,500 for individuals and up to US$ 10,000 for
families. Category C claims covered individual claims below US$ 100,000 with fixed amounts for
twenty-one types of losses, including: departure from Iraq or Kuwait; personal injury; mental pain
and anguish; loss of personal property; loss of bank accounts, stocks and other securities; loss of
income; loss of real property; and individual business losses. Category D claims were similar to
Category C but for individual claims above US$ 100,000. Category E claims were for claims of
corporations, other private entities and public sector enterprises. Category F claims were claims of
governments and international organisations for various types of damages.
265 Other mass claims programs that, to one degree or another, have utilised such techniques include:
Commission for Real Property Claims for Displaced Persons and Refugees in Bosnia and
Herzegovina; House and Property Claims Commission in Kosovo; German Forced Labor
Compensation Program; International Commission on Holocaust Era Insurance Claims; Claims
Resolution Tribunal for Dormant Accounts; and Holocaust Victim Assets Program.
78
do not operate. The DRC has alleged a large amount of harm resulting from
Uganda’s conduct but that alone does not create a basis for using rough
approximations, speculative estimates and lump-sum amounts as the DRC does.
The traditional approach of requiring convincing evidence with a high level of
certainty as to the existence of harm resulting from Uganda’s unlawful acts, as well
as the valuation of such harm, must still apply.
3.58 A more relevant precedent in this regard is the EECC, which operated from
2001 to 2009 and addressed largely inter-State claims arising from the highintensity
armed conflict between Eritrea and Ethiopia between 1998 and 2000.266
Although the EECC’s precise mandate must be borne in mind when considering it
as a precedent, the Commission was confronted, like the Court now, with violations
of international law during an armed conflict between two African States. The
conflict between Eritrea and Ethiopia involved fighting along three different fronts
in both States, the occupation of territory throughout the war, the internment of
thousands of civilians and prisoners of war, and the displacement or expulsion of
thousands of civilians.
3.59 In reaching its conclusions, the EECC did not use fragmentary and
uncorroborated evidence; nor did it resort to “multipliers”, “distribution keys” and
“percentages” of the kind the DRC proposes in its Memorial. Rather, the
Commission closely analysed and relied upon considerable amounts of wellgrounded
and corroborated evidence, including: documentary evidence; medical
and hospital records; receipts of expenditures; photographs and satellite imagery;
and signed and sworn declarations. Such evidence was then corroborated in some
266 The preliminary decisions and the awards of the Commission are collected in U.N.
Codification Division Publications, Reports of International Arbitral Awards, Volume XXVI,
available at http://legal.un.org/riaa/vol_26.shtml (last accessed 22 Jan. 2018).
79
instances by government publications and publications by international
organisations.
3.60 Both Eritrea and Ethiopia advanced claims seeking billions of dollars for
damages allegedly occurring during the nearly three-year war. Ethiopia, which
ultimately prevailed on its claim that Eritrea started the war by unlawfully invading
it, claimed damages totaling approximately US$ 14.3 billion. Eritrea sought
damages of US$ 6 billion. After carefully assessing the evidence, the Commission
awarded a total of US$ 161,455,000 to Eritrea267 and US$ 174,036,520 to Ethiopia.
3.61 Other traditional inter-State tribunals have also addressed large numbers of
claims arising in the context of chaotic conditions, such as those before the Iran-
U.S. Claims Tribunal created in the aftermath of Iran’s 1979 revolution. Despite
the difficulties in proving thousands of claims for damages relating to the loss of
property or breach of contract that occurred in the wake of the Iranian revolution,
the Iran-U.S. Claims Tribunal received and carefully reviewed a wide range of
evidence specific to the alleged harms, and their valuation, including documentary
evidence (such as financial records, titles to property, sales invoices or
contemporary memoranda), affidavits, expert reports and photographs.268
3.62 The DRC has made no effort to present analogous evidence in this case.
Instead, as discussed in the next section, the “evidence” on which it attempts to rely
is irredeemably flawed.
267 A small number of claims filed directly by wealthy individuals were also awarded, totaling US$
2,065,865.
268 George H. Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal (1996), pp.
343-359; Charles N. Brower & Jason D. Brueschke, The Iran-United States Claims Tribunal (1998),
pp. 183-198.
80
III. The DRC Relies upon Evidence That Is Deeply Flawed and Not
Convincing
A. THE DRC SYSTEMATICALLY FAILS TO PRESENT EVIDENCE RELATED TO SPECIFIC HARMS CAUSED BY UGANDA AND THE VALUATION OF SUCH HARMS
3.63 Uganda will discuss specific flaws in the DRC’s evidence in subsequent
chapters of this Counter-Memorial dealing with particular categories of damage
claimed. For present purposes, Uganda will confine itself to showing more
generally that the DRC has not provided to the Court the types of evidence
normally expected in an inter-State proceeding to prove: (1) the existence of the
harm alleged; (2) the connection of the harm to Uganda’s wrongful actions; and (3)
the valuation of that harm.
3.64 The DRC Memorial does not purport to assess the specific harm it suffered
on an incident-by-incident or locality-by-locality basis, in which it demonstrates
particular fatalities or injuries, or specific property losses, shown to be the result of
specific unlawful acts by Uganda. Had the DRC done so, it would be expected to
have presented to the Court: death certificates or medical, clinical or hospital
records for those killed or injured; lists of deceased, indicating their age, occupation
and surviving family members; contemporaneous documentation as to the
existence of property; receipts establishing the value of such property when
acquired; invoices for the restoration or reconstruction of property; other
documentary evidence that should be available even in times of war; sworn
statements by victims or their families; and sworn statements by public officials
(such as mayors of towns, church leaders or others) in a position to speak to harms
within the community.
3.65 Although not arising in the context of an inter-State claim, the order of the
International Criminal Court (“ICC”) on reparations in the Katanga case usefully
81
demonstrates the types of evidence that should be available for personal and
property harm occurring in the eastern DRC even in times of armed conflict.
Various types of evidence were presented to and used by the ICC Chamber in
awarding compensation with respect to a specified group of 341 individuals for the
2003 attack by the Nationalist and Integrationist Front and the Front for Patriotic
Resistance of Ituri on the village of Bogoro in the eastern DRC. These included:
death certificates; medical reports; medical certificates from NGOs; hospital
records; forensic reports; certificates of family relationship (attestation de lien de
parenté); or signed residence and habitation certificates (“residence certificates”)
bearing the DRC official seal.269
3.66 The DRC presents no analogous evidence to this Court.
3.67 Instead of attempting to make a systematic presentation of evidence, the
DRC takes an different approach: it arbitrarily selects uncorroborated numbers
from a few reports (that typically do not address wrongful acts of Uganda) and
combines those numbers with invented “percentages”, “distribution keys” and
“multipliers” to produce compensation claims in amounts that can only be
characterised as contrived.
3.68 For example, as discussed in detail in Chapter 5, to determine the number
of deaths “caused by Uganda’s invasion”, the DRC cites to the uncorroborated and
much-criticised reports of an NGO for the proposition that there were 3.9 million
more deaths in the DRC between 1998 and 2004 than there would have been in the
269 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07-
3728, Order for Reparations pursuant to Article 75 of the Statute (ICC Trial Chamber II, 24 Mar.
2017). Much of the evidence is recounted in Annex II to the order. See Version publique expurgée
de l’Annexe II, en Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui,Case No. ICC-
01/04-01/07-3728 (3 Aug. 2017).
82
absence of the conflict. Next, without supporting evidence, the DRC discounts that
number to 400,000 to reach the number of deaths allegedly due to violence. And
then, again without any supporting evidence, the DRC applies a “distribution key”
of 45% to apportion responsibility for 180,000 civilian deaths to Uganda.
3.69 That is not all. The DRC goes on to divide this number, again without any
basis in evidence, into 40,000 persons who were allegedly victims of “deliberate”
violence and 140,000 persons who were not victims of such violence. And then it
arbitrarily proposes that to calculate the quantum of compensation due the number
in the first group be multiplied by US$ 34,000 (a number purportedly derived from
DRC national cases on compensation for deaths), while the second group be
multiplied by US$ 18,913 (a number purportedly derived from lost future income
of every person in the group).
3.70 At every step of the way, the DRC’s numbers are driven not by evidence,
let alone evidence of specific harms to specific persons that occurred at particular
times and places due to the actions of Uganda, but rather speculation built atop
guesswork.
3.71 In an effort to make it appear that its speculations are grounded in reality,
the DRC points to information concerning a few, frequently uncorroborated
incidents that allegedly occurred in certain times and places for “illustrative
purposes”. To do this, the DRC draws principally upon general reports issued by
the UN or NGOs, along with a collection of “summary tables” prepared by the
DRC ostensibly based on “claims forms” gathered by the DRC years after the
Court’s 2005 Judgment. To be clear, this information regarding specific incidents
is not being used to support a compensation claim with respect to those specific
incidents but rather simply “illustrate” the harm that the DRC says occurred on a
much more massive scale.
83
3.72 The DRC itself concedes that this approach is not systematic in nature. It
admits that these general reports “do not go into a degree of detail that allows them
to establish the injuries suffered from an individual standpoint”, and that its
investigations on the ground “were limited and did not allow [the investigators] to
map the damage suffered in that context exhaustively”.270 Yet, at the same time,
these handful of “illustrations” are somehow supposed to buttress the DRC’s
arbitrary and excessive numbers, manipulated through unexplained “percentages”,
“distribution keys” and “multipliers”, so as to come up with billions of dollars of
alleged harm caused by Uganda.
3.73 As explained, history shows that it is entirely possible to make serious,
substantiated evidentiary showings before international courts or tribunals. This
has happened, for example, before the EECC and ICC (the latter involving a case
from the eastern DRC). While it is understandable that there might be some gaps
in the ability to produce such evidence, such as perhaps a lack of evidence about
the specific number of deaths that occurred in a particular town or village, or the
age of certain victims. Yet, in this instance, the DRC essentially provides no
documentary or other evidence of the type normally expected. Instead of gaps,
there is simply a void.
3.74 As a result, the DRC not only fails to establish the existence of its injury
with a high degree of certainty, it fails to do so with any degree of certainty. The
result is a series of claims that are wholly unsubstantiated.
270 DRCM, para. 1.39 (Translation by Counsel, original in French: “ils n’entrent pour autant pas
dans un degré de détails tels qu’ils permettent d’établir les préjudices subis sur un plan individuel”;
“étaient limités et ne leur ont pas permis de dresser une cartographie exhaustive des dommages
subis dans ce contexte”.).
84
B. THE DRC’S SYSTEMATIC FAILURE TO PRESENT EVIDENCE THAT CONNECTS
TO AND SUPPORTS ASSERTIONS CONTAINED IN ITS MEMORIAL
3.75 As indicated in the prior-subsection, the DRC does not present evidence
related to specific harms allegedly caused by Uganda or their valuation. Rather, it
attempts to support its claims through much more general information. A recurring
flaw in the DRC’s approach is its failure to connect the claims advanced in the text
of the Memorial with the general information contained in the annexes to the
Memorial. This problem manifests itself in various ways.
3.76 First, assertions are often made in the text of the Memorial that are sourced
to “evidence” contained in an annex. Yet when the annex is read, there is nothing
that supports the assertion made in the Memorial.271
3.77 Second, assertions are often made in the Memorial that purportedly are
supported by a number of annexes. Yet when those annexes are read together, they
often contradict each other, and contradict the assertion made in the Memorial.272
3.78 Third, in trying to support its assertions, the DRC often cites to one type of
evidence but does not grapple with other types of evidence that it has submitted, or
that is available to it, that contradicts its assertions.273 Indeed, the DRC often relies
on a particular piece of information, such as a report by an organisation, as though
it is the final word on a particular matter. Yet, in many instances, there is
subsequent information, such as a later report by the same or another organisation,
that corrects or refutes the earlier information. The DRC invariably fails to note the
271 See, e.g., Chapter 5, Section II(A).
272 See, e.g., Chapter 6, Section II(A).
273 See, e.g., Chapter 7, Section II(A).
85
existence of such subsequent information, let alone explain why its reliance on the
earlier information remains credible.
C. DEFECTS IN THE MAIN TYPES OF GENERAL INFORMATION PRESENTED BY
THE DRC
3.79 As discussed above, rather than systematically present evidence in support
of its compensation claims, the DRC pursues an alternative strategy. It pretends to
base its claims on credible sources, such as various United Nations reports, the
report of the Judicial Commission of Inquiry into Allegations into Illegal
Exploitation of Natural Resources and Other Forms of Wealth in The Democratic
Republic of Congo 2001 (“Porter Commission”),274 and its own investigation of
victims’ losses.275 Yet those sources are cited only for “illustrative” purposes; they
themselves do not support―and indeed often contradict―the extraordinarily high
numbers claimed by the DRC. Instead of relying upon those sources, the DRC
either presents no evidence directly supporting the numbers on which it actually
bases its claims, or relies on uncorroborated and partisan sources for its
calculations.276
3.80 As a general matter, the relatively few reports of international organisations
or NGOs cited by the DRC often provide no detail as to the specific harms that
occurred in particular places and at particular times. Nor are they specific as to
whether any particular harm is attributable to the actions of Uganda, nor probative
as to the alleged harm’s valuation. Such reports do provide some general
274 Republic of Uganda, Judicial Commission of Inquiry into Allegations into Illegal Exploitation
of Natural Resources and Other Forms of Wealth in the Democratic Republic of the Congo 2001,
Final Report (hereinafter “Porter Commission, Final Report” (Nov. 2002), p. 53, Annex 52.
275 DRCM, paras. 1.27-1.37.
276 Ibid., para. 2.07.
86
information which may have been pertinent at the merits stage. But such
information does not constitute evidence of the kind needed at this reparation
phase, showing, for example: the numbers of persons killed, injured or otherwise
harmed; whether such harm was the result of conduct by Uganda (as opposed to
one of the other belligerents in the war); the average earnings of such persons and
their life expectancy; average property damage in the affected areas; average
property values; etc.
3.81 As such, the reports relied on by the DRC do not provide convincing
evidence as to the existence of specific harms on the scale claimed by the DRC, or
whether such harms were the result of Uganda’s actions. Moreover, such
information provides no evidence of valuation, leaving the DRC instead to present
to the Court rather extraordinary numbers, “multipliers”, “distribution keys” and
“percentages” that appear to have been selected at random.
3.82 In some limited instances, the reports and other information submitted by
the DRC do identify specific harm. In theory, such information might be used to
prove compensation with respect to the specific incident addressed. Yet, as
demonstrated below and in subsequent chapters, such information typically does
not serve even that limited purpose because of the method of its collection, the time
lag in its creation after the injury occurred, the connection of it to one of the Court’s
liability findings, the lack of any corroboration from other sources of evidence or
subsequent refutation by other credible sources. 277 In any event, such information
is too scant to support the exorbitant levels of compensation the DRC seeks.
277 See Armed Activities (2005), para. 61.
87
3.83 The DRC uses three main types of information to support its damages
claims: (1) reports by UN agencies; (2) reports by NGOs; and (3) materials
compiled by the DRC for purposes of these proceedings long after the events at
issue. The DRC characterises its reliance on these sources as being both “inductive”
(through “investigations conducted on the ground after the end of the conflict”) and
“deductive” (through more general reports “published during or after the war”).278
3.84 The inadequacy of these sources will be addressed in relation to specific
types of harm alleged in subsequent chapters. The following discussion is intended
to indicate generally why these sources should not be viewed as either inductively
or deductively supporting the DRC’s claims.
1. United Nations Reports
3.85 The first main type of information that the DRC seeks to use in support of
its claims are reports issued by the UN. In most instances, the DRC’s reliance on
UN reports is solely for “illustrative” purposes. They are used as a means of
demonstrating that some harms occurred in some locations, not to support that such
harms were the result of a violation of international law by Uganda, or to support
the magnitude of that harm or its valuation.
3.86 The DRC uses UN reports to directly support only a small portion of its
claims, notably for loss of life or injuries in Kisangani and Ituri, or for the number
of allegedly damaged schools and houses. When doing so, the DRC typically seizes
upon the highest numbers in these reports, even though they are uncorroborated
278 DRCM, para. 1.38 (Translation by Counsel; original in French: “enquêtes réalisées sur le terrain
après la fin du conflit”; “publiées pendant ou après la guerre”.).
88
and sometimes even contradicted by other credible sources, while ignoring lower
numbers that do not fit the DRC’s narrative.
3.87 This Court has previously treated even UN reports with caution,
recognising that their probative value may differ depending, in particular, on two
factors: (1) the underlying evidence used to prepare them; and (2) whether they are
corroborated.
3.88 With respect to underlying evidence, the Court refused in its 2005 Judgment
to rely, for example, on passages from the Secretary-General’s 4 September 2000
report on the UN Mission in the DRC (“MONUC”) because of the report’s
“reliance on second-hand reports”.279
3.89 Reliance on reports that are merely derivative of other information is
problematic because they typically are not themselves attesting to accuracy of the
original information; they are simply repeating or synthesising that information
without testing its accuracy. As the Court explained in Croatia v. Serbia, derivative
“[e]vidence of this kind and other documentary material (such as press articles and
extracts from books) are merely of a secondary nature and may only be used to
confirm the existence of facts established by other evidence…”.280 Likewise, the
Court in Nicaragua v. United States cautioned: “Widespread reports of a fact may
prove on closer examination to derive from a single source, and such reports,
279 Armed Activities (2005), para. 159.
280 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), I.C.J. Reports 2015 (hereinafter “Croatia v. Serbia (2015)”), para. 239 citing
to Nicaragua v. United States of America (Merits, 1986), para. 62.
89
however numerous, will in such case have no greater value as evidence than the
original source”.281
3.90 Despite these admonitions, the DRC cites UN reports without any
consideration as to the underlying source of information upon which the report is
based, such as whether it draws upon media accounts or information obtained from
an NGO.
3.91 With respect to corroboration, the Court noted in the 2005 Judgment that it
would “take into consideration evidence contained in certain United Nations
documents to the extent that they are of probative value and are corroborated, if
necessary, by other credible sources”.282 Indeed, the Court emphasised that it “will
treat with caution evidentiary materials … emanating from a single source”.283 This
approach is consistent with the Court’s use of other types of evidence, where a
single, uncorroborated source is approached with skepticism.284
3.92 Here, too, the DRC typically cites to UN reports without any consideration
as to whether the information contained in in them is corroborated (or contradicted)
by any other source.
(a) UN Mapping Report
3.93 One UN report that features in the DRC Memorial is the “Report of the
Mapping Exercise of the Office of the UN High Commissioner for Human Rights”
281 Nicaragua v. United States of America (Merits, 1986), para. 63.
282 Armed Activities (2005), para. 205 (emphasis added).
283 Ibid., para. 61.
284 Croatia v. Serbia (2015), paras. 344-345.
90
(“UN Mapping Report”).285 On close inspection, however, the DRC relies on this
report very little for the actual numbers it presents concerning the scope and
valuation of the damages it claims. Rather, the report is used mostly to provide
vignettes of a few incidents where specific harm allegedly occurred. The DRC’s
unwillingness to rely on the UN Mapping Report to directly support its claims
stems from the fact that that report provides no evidence corroborating the DRC’s
numbers. Indeed, it fundamentally contradicts the DRC’s claims.
3.94 Published in August 2010, the UN Mapping Report is the result of an effort
to “map” the most serious violations of human rights and international
humanitarian law committed within the territory of the DRC between March 1993
and June 2003. More than twenty UN human rights officers were deployed across
the DRC between October 2008 and May 2009 to gather documents and
information from witnesses.286 This UN Mapping Team reviewed 1,500 documents
from many different sources, including the United Nations, the DRC government
and NGOs.287 The team also met with more than 200 NGO representatives and
DRC authorities.288
3.95 All of the sources cited in the DRC Memorial were considered by the UN
Mapping Team, except only for materials that the DRC prepared for purposes of
litigation.289 The UN Mapping Team assessed the reliability of the information it
obtained through “a two-stage process involving evaluation of the reliability and
credibility of the source, and then the validity and veracity of the information
285 U.N. Mapping Report, Annex 25.
286 Ibid., para. 3.
287 Ibid., para. 14.
288 Ibid., paras. 11-12.
289 Ibid., Annex II, pp. 510-534.
91
itself”.290 The report also “identif[ies] the armed group[s] to which the alleged
perpetrator[s] belong[ed]”.291
3.96 In some instances, the UN Mapping Report identifies Ugandan military
forces as the perpetrator of a violation of human rights or international
humanitarian law. Yet, in most instances, the report does not make any such
identification. When the UN Mapping Report does not identify Uganda as the
perpetrator, this is significant: it shows that the UN Mapping Team, in most
instances, based on all the information available to it, was unable to verify that the
incident at issue was attributable to acts of Uganda.
3.97 In some instances, the UN Mapping Report also identifies a specific (or
estimated) number of persons who were killed or injured as a result of Ugandan
action. Yet, in most instances, the report does not provide any such specificity.
Again, it is significant that the report lacks such specificity, for it shows that the
UN Mapping Team in most instances, based on all the information available to it,
was unable to verify such numbers through what it regarded as credible evidence.
3.98 Notably, although the UN Mapping Report sought to determine the loss of
life in this time-period from violations of international law, the DRC does not rely
on the UN Mapping Report for its calculation of damages for loss of life. The
reason is simple: the UN Mapping Report disproves the DRC’s claims. For
example, the DRC claims that Uganda is responsible for causing the deaths of
180,000 civilians in the DRC. Yet, based on its investigation, the UN Mapping
Team could only attribute a miniscule fraction of this number to Uganda.
290 Ibid., para. 7.
291 Ibid., para. 8.
92
3.99 Rather than rely on the UN Mapping Report’s conclusions to support its
overall claim concerning the loss of life, the DRC uses those conclusions in direct
support of just two types of damages it claims: loss of life and injury in Kisangani,
and harm to child soldiers. Yet, even here, the DRC’s use of the UN Mapping
Report is often misleading and must be approached with caution.
3.100 For example, in the 2005 Judgment, the Court found that Uganda
unlawfully “trained child soldiers”.292 To calculate the number of such child
soldiers (which the DRC claims is 2,500), the DRC cites the UN Mapping Report’s
statement that “in 2001, the MLC admitted to having 1,800 [child soldiers] within
its ranks”.293 In other words, the DRC is claiming that simply by pointing to the
number of child soldiers nominally in the ranks of the MLC, that proves how many
child soldiers were trained by Uganda.
3.101 Yet evidence of the presence of child soldiers in the MLC (even if accepted)
is not proof of their training by Uganda. Further, even if it is assumed that the MLC
trained that number of child soldiers, such training cannot be attributed to Uganda,
given the Court’s 2005 finding that Uganda did not exercise effective control over
the MLC.294 The UN Mapping Report therefore provides no evidence as to the
number of child soldiers that Uganda trained.
292 Armed Activities (2005), para. 345(3).
293 U.N. Mapping Report, para. 697.
294 Armed Activities (2005), para. 160.
93
(b) Other UN Reports
3.102 The other UN reports on which the DRC relies295 all preceded the 2010 UN
Mapping Report and must be evaluated in the context of the latter. Simply put, the
UN Mapping Team carefully reviewed296 all of these earlier UN reports, including
295 See U.N. Economic and Social Council, Report on the situation of human rights in the
Democratic Republic of the Congo, submitted by the Special Rapporteur, Mr. Roberto Garretón, in
accordance with Commission on Human Rights resolution 1999/56, U.N. Doc. E/CN.4/2000/42 (18
Jan. 2000), DRCM, Annex 1.5; U.N. Security Council, Special Report on the events in Ituri,
January 2002-December 2003, U.N. Doc. S/2004/573 (16 July 2004), DRCM Annex 1.6; U.N.
Security Council, Report of the Panel of Experts on the Illegal Exploitation of Natural Resources
and Other Forms of Wealth of Democratic Republic of the Congo, U.N. Doc. S/2001/357 (12 Apr.
2001), (hereinafter “U.N. Panel of Experts, first report of 12 Apr. 2001”), Annex 11; U.N. Security
Council, Final report of the Panel of Experts on the Illegal Exploitation of Natural Resources and
Other Forms of Wealth of the Democratic Republic of the Congo, U.N. Doc. S/2002/1146 (16 Oct.
2002) (hereinafter “U.N. Panel of Experts, report of 16 Oct. 2002”), Annex 15; U.N. Security
Council, Letter dated 15 Oct. 2003 from the Chairman of the Panel of Experts on the Illegal
Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the
Congo addressed to the Secretary-General, U.N. Doc. S/2003/1027 (23 Oct. 2003), Annex 19; U.N.
Security Council, Addendum to the report of the Panel of Experts on the Illegal Exploitation of
Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, U.N. Doc.
S/2001/1072 (13 Nov. 2001) (hereinafter “U.N. Panel of Experts, Addendum to the first report of
12 April 2001”), Annex 13; U.N. General Assembly, Report of the Special Rapporteur on the
situation of human rights in the Democratic Republic of Congo, U.N. Doc A/55/403 (20 Sept. 2000),
DRCM Annex 3.1; U.N. Security Council, Special report of the Secretary-General on the United
Nations Organization Mission in the Democratic Republic of the Congo (MONUC), U.N. Doc.
S/2002/1005 (10 Sept. 2002), DRCM Annex 3.2; U.N. Security Council, Sixth report of the
Secretary-General on the United Nations Organization Mission in the Democratic Republic of the
Congo (MONUC), U. N. Doc. S/2001/128 (12 Feb. 2001), DRCM Annex 3.4; U.N. Security
Council, Second special report of the Secretary-General on the United Nations Organization
Mission in the Democratic Republic of the Congo (MONUC), U.N. Doc. S/2003/566 (27 May
2003), DRCM Annex 3.6; U.N. General Assembly, Question of the violation of human rights and
the fundamental freedoms in any part of the world, with particular reference to colonial and
dependent countries and territories, U.N. Doc. A/54/361 (17 Sept. 1999), DRCM Annex 4.12;
Organization of African Unity, Report of the Secretary-General on the Situation in the Democratic
Republic of Congo (6-10 July 1999), DRCM Annex 4.16 U.N. Security Council, Third report of the
Secretary-General on the United Nations Organization Mission in the Democratic Republic of the
Congo (MONUC), U.N. Doc. S/2000/566 (12 June 2000), DRCM Annex 4.22; U.N. Economic and
Social Council, Report on the situation of human rights in the Democratic Republic of the Congo,
submitted by the Special Rapporteur, Mr. Roberto Garretón, in accordance with Commission on
Human Rights resolution 2000/15, U.N. Doc. E/CN.4/2001/40 (1 Feb. 2001), DRCM Annex 4.23
U.N. Security Council, Report of the inter-agency assessment mission to Kisangani, U.N. Doc.
S/2000/1153 (4 Dec. 2000), DRCM Annex 4.24.
296 U.N. Mapping Report, Annex II pp. 510-534.
94
MONUC reports, reports of the UN Special Rapporteur on the situation of human
rights in the DRC and the report of the Inter-Agency Assessment Mission to
Kisangani, and only adopted information that it found to give rise to a reasonable
suspicion that an incident had occurred.
3.103 As stated, the Court has ruled that it “will treat with caution evidentiary
materials… emanating from a single source”.297 Instead of analysing the
underlying information used for each of these reports, or analysing these reports
collectively so as to see what evidence is independently corroborated, the DRC
consistently chooses the highest number it can find in any of these UN reports. As
a consequence, it fails to consider whether the numbers it chooses are contradicted
by later reports.
3.104 The DRC, for example, alleges that Uganda caused 60,000 deaths in
Ituri.298 It bases this claim on the 2003 Second special report of the Secretary-
General on MONUC, which states: “Since the first major onslaught of violence in
June 1999, the death toll has been estimated at more than 60,000”.299 Quite apart
from the fact that the report never identifies Uganda as responsible for these deaths,
the report does not state either the source(s) on which this assertion is based or the
methodology for calculating the number stated. The number could therefore be
based on media reports, reports of NGOs or extrapolations of some kind from
disparate second-hand estimates.
297 Armed Activities (2005), para. 61.
298 DRCM, para. 3.23.
299 U.N. Security Council, Second special report of the Secretary-General on the United Nations
Organization Mission in the Democratic Republic of the Congo, U.N. Doc. S/2003/566 (27 May
2003), DRCM Annex 3.6.
95
3.105 Equally telling is the fact that since the issuance of the 2003 Second special
report, no other source has corroborated the stated number of deaths. In fact,
subsequent reports have estimated the number of deaths at a much lower level. For
example, the MONUC Special Report on the Events in Ituri, which was published
a year later in 2004, not only did not mention the number 60,000 but quoted
estimates amounting to less than half that level.300
3.106 Perhaps most important, the 2010 UN Mapping Report, which benefited
not just from prior UN reports but also from the deployment of the UN Mapping
Team to the region, also never refers to 60,000 deaths but instead found there to be
a reasonable suspicion that there were “hundreds of deaths” in Ituri.301
3.107 The DRC Memorial thus selects the highest number it can find to support
its claims concerning the loss of life. This number, moreover, emanates from a
single source that provides no information concerning the provenance of such
information and is not only uncorroborated but actually contradicted by subsequent
sources.
300 The report refers to a Congolese government estimate of 20,000 deaths between 1999 and 2001
and another estimate of 8,000 deaths between 2002 and 2003. U.N. Security Council, Special Report
on the events in Ituri, January 2002- December 2003, U.N. Doc. S/2004/573 (16 July 2004), pp.
56, 16, DRCM, Annex 1.6.
301 U.N. Mapping Report, para. 366. Another example is the DRC’s reliance on the UN Secretary
General’s sixth report on MONUC of 2001 to calculate the number of child soldiers Uganda is
responsible for, specifically the following statement: “As the present report was being finalized,
information was received that 600 children would be transferred to the custody of humanitarian
organization next week”. DRCM, para. 3.35. The UN Mapping Report, which analysed the UN
Secretary General’s sixth report on MONUC, was unable to verify the number and concluded
instead that “at least 163…children were sent to Uganda to undergo military training at a UPDF
camp in Kyankwanzi before finally being repatriated to Ituri by UNICEF in February 2001”. U.N.
Mapping Report, para. 429. The number of 600 children appears only in the UN Secretary General’s
sixth report on MONUC of 2001.
96
3.108 Similarly, for its natural resources claims, the DRC relies on the initial
reports of a five-person “panel of experts” appointed in 2000 by the UN Secretary-
General to investigate allegations concerning the illegal exploitation of gold,
diamonds, coltan and other resources in the DRC.302 Yet the DRC makes no effort
to analyse the information upon which those reports were based or to determine
whether they were independently corroborated.
3.109 Had the DRC done so, it would have found that the Panel’s initial reports
were severely criticised by other independent sources,303 including the Porter
Commission convened by Uganda.304 Indeed, controversy over the panel resulted
in it being reconstituted with new members for an extended mandate so as to verify
the earlier findings.305 In a subsequent “addendum” to the earlier report, the
reconstituted panel reversed several of the initial panel’s earlier findings.306 Thus,
the DRC is pressing upon this Court findings that it must know were later retracted.
302 Ultimately, five reports were issued as U.N. Security Council. See, e.g., U.N. Panel of Experts,
first report of 12 Apr. 2001, Annex 11; U.N. Panel of Experts, report of 16 Oct. 2002, Annex 15;
U.N. Security Council, Letter dated 15 October 2003 from the Chairman of the Panel of Experts
on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic
Republic of the Congo addressed to the Secretary-General, U.N. Doc. S/2003/1027 (23 Oct. 2003)
(hereinafter “U.N. Panel of Experts, final report of 23 Oct. 2003”), Annex 19; UN. Security Council,
Letter dated 17 June 2003 from the Chairman of the Panel of Experts on the Illegal Exploitation of
Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo addressed
to the Secretary-General U.N. Doc. S/2002/1146/Add.1 (20 June 2003).
303 See U.N. Panel of Experts, report of 23 Oct. 2003, para. 9 (“As Council members are aware, the
publication of the annexes in the Panel’s last report (S/2002/1146) created strong reactions by
entities named therein”.), Annex 19.
304 Porter Commission, Final Report, Annex 52.
305 On 24 January 2003, the Security Council, by resolution 1457 (2003), renewed the mandate of
the Panel of Experts for another six months, requesting it to verify, reinforce and update its earlier
findings and, as necessary, revise the lists attached to its previous reports. U.N. Security Council,
4691st Meeting, Resolution 1457 (2003), U.N. Doc. S/RES/1457 (24 Jan. 2003), p. 2, Annex 16.
306 U.N. Panel of Experts, Addendum to the first report of 12 April 2001, Annex 13. See Porter
Commission, Final Report, pp. 161, 168, Annex 52.
97
3.110 In reviewing the DRC’s claims regarding natural resources at the merits
stage, the Court found more credible the report of the Porter Commission,307 a
source upon which the DRC only very selectively relies (often extracting
information out of context and ignoring other information that contradicts its
position) in advancing its natural resources claims. The Porter Commission was
particularly critical of the UN Panel’s methodology and findings, determining that
the Panel had relied on “inflammatory figure[s]” and failed to deal with “suspicions
of exaggeration by informants”.308
3.111 Importantly, the Porter Commission found that the UN Panel had wrongly
attributed smuggling by private actors and rebels to Uganda,309 had made serious
allegations based on hearsay evidence from a single uncorroborated witness
without further investigation,310 and had criticised acts that were entirely legal,
were recognised by the DRC government and complied with all the regulations in
effect.311 The Porter Commission also criticised the UN Panel for making
allegations against Uganda that the Panel was unable to confirm, and for failing to
respond to (or ignoring) Uganda’s comments and information responding to the
Panel’s first report.312
307 Armed Activities (2005), para. 61 (“The Court moreover notes that evidence obtained by
examination of persons directly involved, and who were subsequently cross-examined by judges
skilled in examination and experienced in assessing large amounts of factual information, some of
it of a technical nature, merits special attention. The Court thus will give appropriate consideration
to the Report of the Porter Commission, which gathered evidence in this manner. The Court further
notes that, since its publication, there has been no challenge to the credibility of this Report, which
has been accepted by both Parties”.).
308 Porter Commission, Final Report, p. 161, Annex 52.
309 Ibid., pp. 163-164, 167.
310 Ibid., p. 166.
311 Ibid., pp. 158, 168.
312 Ibid., pp. 156-157.
98
2. NGO Reports
3.112 The second main type of information that the DRC seeks to use in support
of its claims are reports by NGOs, both those located outside the DRC (such as
Human Rights Watch) or those located within the DRC (such as the Groupe Lotus).
As with UN reports, these reports lack probative value when they are based on
second-hand information and when they are uncorroborated. Moreover, such
reports typically use poorly-sourced information for advocacy purposes, not for the
purpose of providing evidence sufficient to support a finding before a court of law.
Thus, in its 2005 Judgment, the Court refused to rely on reports by the International
Crisis Group and Human Rights Watch because they were uncorroborated and
because they were not, in fact, saying what the DRC was alleging.313
3.113 The evidence cited by the DRC to support its claim for damages relating to
loss of life, for example, consists primarily of reports from an NGO, the
International Rescue Committee (“IRC”). Based very loosely on IRC reports,
which were conducted as part of an advocacy campaign to draw attention to the
DRC, the DRC contends that Uganda is responsible for 180,000 civilian deaths.314
Had the DRC analysed the IRC reports with care, it would have revealed doubts
about relying upon them. Among many other things, neither the underlying
information nor the reports themselves sought to identify perpetrators of the deaths.
313 Armed Activities (2005), para. 159. Other courts and tribunals are similarly cautious. The Eritrea
Ethiopia Claims Commission, for example, appears to have been very careful with respect to reports
and other documents issued by non-governmental organisations, perhaps due to a concern that they
were based on incomplete information or information derivative of unsubstantiated claims being
made by one or the other government.
314 DRCM, para. 2.64. As discussed in Chapter IV of this Counter-Memorial, the IRC estimated
that 3.9 million people had died in the DRC between 1998 and 2007 and that “less than 10 percent
of all deaths were due to violence”. International Rescue Committee, Burnet Institute, Mortality in
the Democratic Republic of Congo: An Ongoing Crisis (2007), p. ii, Annex 60. Without any
explanation, the DRC argues that it is “reasonable” to use “a minimum estimate of 400,000 victims,
one tenth the IRC’s figure”, and picks an arbitrary and unexplained “distribution key of 45%” so as
to assert that Uganda was responsible for 180,000 deaths. DRCM, paras. 2.70-2.71.
99
Indeed, the IRC never attributed even a single loss of life to Uganda, even as it did
note some data on violent deaths caused by others.315
3.114 Moreover, as discussed in greater detail in Chapter 5, the IRC’s
methodology and calculations have been severely criticised by a number of
academics and independent organisations. The Health and Nutrition Tracking
Service (“HNTS”), an interagency initiative hosted by the WHO,316 concluded that
the IRC’s number of deaths were “difficult to substantiate”.317 The Human Security
Report Project (“HSRP”), an independent research center affiliated with Simon
Fraser University in Vancouver, Canada, similarly criticised the IRC’s methods in
its 2009-2010 report.318 And, on the DRC’s own admission, the results of the IRC’s
studies were refuted by André Lambert and Louis Lohlé-Tart, two demographers
who work for the Association for the Development of Applied Research, a Belgian
organisation.319 In their estimation, the number of deaths attributable to the conflict
315 See, e.g., International Rescue Committee, “Mortality in Eastern DRC: Results from Five
Mortality surveys by the IRC” (May 2000), p. 11, Annex 50; International Rescue Committee,
“Mortality in the DRC: Results from a Nationwide Survey” (2003), p. 6, Annex 54.
316 The Health and Nutrition Tracking Service (HNTS), an interagency initiative hosted by WHO,
was created in response to a request made by the United Nations Emergency Relief Coordinator as
part of the Humanitarian Reform process. Established in late 2007 by the Inter-Agency Standing
Committee (IASC), HNTS aims to provide impartial, credible and timely information on mortality
and nutrition rates in populations affected by crises and emergencies, especially the least funded
and publicised ones, using standardised data collection and analysis methods wherever possible.
The HNTS has two main functions: (1) Offering operational support to humanitarian staff in the
field by peer-reviewing guidelines and other documents, participating in assessment missions,
advising on the design of surveys, and providing technical advice to various agencies; and (2)
Developing standards for data collection and measurement through its Expert Reference Group,
collecting, analysing and disseminating data, and providing independent technical advice on various
issues related to method development and validation studies.
317 Health and Nutrition Tracking Service (HNTS), Peer Review Report: Re-Examining mortality
from the conflict in the Democratic Republic of Congo, 1998-2006 (2009), p. 21, Annex 63.
318 Human Security Report Project, “Part II, The Shrinking Costs of War”, in Human Security
Report 2009/2010, p. 128. Annex 64.
319 DRCM, para. 2.68.
100
could be no higher than 200,000―just 5% of the IRC number―though these
demographers regarded even that number as too high.320
3.115 The DRC also relies on a number of reports by NGOs local to the DRC,
such as the Groupe Lotus, Groupe Justice et libération, and Collectif des
organisations et associations des jeunes du Sud-Kivu en RDC (“COJESKI”). These
local NGOs provide numbers of casualties without explaining their sources or
methodology, and without providing any underlying evidence or means of
verification.
3.116 These NGO reports are also not corroborated. As with the earlier UN
reports, the UN Mapping Team took account of these NGO reports when producing
the 2010 UN Mapping Report, but did not accept the numbers cited by these NGOs.
The DRC nevertheless seeks to reply upon them to calculate its damages.321
3.117 For example, the DRC seeks to ascribe to Uganda responsibility for 100
civilian deaths resulting from the August 1999 confrontations in Kisangani. The
DRC bases this number on statements by two Congolese NGOs: the Groupe Lotus
and COJESKI.322 The Groupe Lotus makes two statements in this regard: “If we
are to believe the humanitarian organization sources, 63 civilians allegedly died,”
and “other sources, on the other hand, provide a provisional assessment of at least
100 civilians killed”.323 Thus, the Groupe Lotus itself is not asserting that such
information is correct and is not providing any indication about who or what
320 See infra Chapter 5.
321 U.N. Mapping Report, Annex II, pp. 510-534, Annex 25.
322 DRCM, para. 4.27.
323 Groupe Lotus, Report on “Les conséquences de la contraction des alliances et factions rebelles
au nord-est de la RDC – La guerre de Kisangani”, Sept. 1999 (emphasis added) (op. cit.), DRCM
Annex 4.18.
101
calculated these numbers and on what basis. As for COJESKI, it claims that 175
persons were killed but does not identify the names of any of those killed, the
locations of killings or the perpetrators. Nor does it explain its methodology or
whether it verified the numbers.324
3.118 In contrast, the UN Mapping Report, which had full access to these NGO
reports as well as its own on-the-ground investigation, concluded that these same
incidents “allegedly caused the deaths of over 30 civilians”.325 But rather than cite
to the UN Mapping Report, the DRC chooses a higher number from an NGO that
is unsubstantiated, is uncorroborated and conflicts with other reports.
3. Materials Collected by the DRC for Purposes of Litigation
3.119 The third main type of information that the DRC seeks to use to support its
claims are materials prepared by the DRC itself for the purposes of the reparation
phase of this litigation. There are both general flaws with such information and
flaws specific to the particular materials prepared by the DRC.
3.120 As a general matter, this type of information must be viewed as having little
probative value. Not only is such evidence prepared by a self-interested party, it
lacks any of the indicia of clear and convincing evidence. By way of example, the
only evidence of material damages allegedly suffered by the Congolese army is a
summary list of military items, with nominal values, allegedly destroyed in military
confrontations.326 No underlying data or other corroborating evidence as to either
324 COJESKI, Dans les provinces occupées de la République Démocratique du Congo: les
violations massives des droits de l’homme et du droit international humanitaire au seuil du
paroxysme (Oct. 1999), p. 58, DRCM Annex 4.17.
325 U.N. Mapping Report, para. 361, Annex 25.
326 “Evaluation des dégâts militaires dans les rangs des FARDO par l’armée ougandaise et alliés”
(31 Aug. 2016), DRCM Annex 7.4.
102
the extent or valuation of the alleged damages is provided. Moreover, this list was
prepared not by an independent expert or other third-party but by a high-ranking
officer of the Congolese army on 31 August 2016―about two weeks before the
DRC’s submission of its Memorial on damages.
3.121 The Court has been quite cautious in relying upon such self-serving
information. Indeed, at the merits phase of this case, the Court indicated that it “will
treat with caution evidentiary materials specially prepared for this case…”. 327
Among other things, the Court noted that “a member of the government of a State
engaged in litigation before this Court―and especially litigation relating to armed
conflict―will probably tend to identify himself with the interest of his country’”.328
Also, the Court emphasised that it preferred “contemporaneous evidence from
persons with direct knowledge”329 rather than documents prepared long after the
events in question by persons not involved in those events.
3.122 In addition to these general flaws, there are also flaws specific to the
particular materials the DRC presents. For present purposes, Uganda will focus on
one particular kind of material for purposes of demonstrating the gravity of these
flaws: lists created by the DRC that are purportedly based on information contained
in “claims forms” completed by victims sometime after 2005. (Uganda will
address, where relevant, the specific flaws in other materials prepared by the DRC
in subsequent chapters of this Counter-Memorial.)
327 Armed Activities (2005), para. 61.
328 Ibid., para. 65 citing to Nicaragua v. United States of America (Merits, 1986), para. 70.
329 Armed Activities (2005), para. 61.
103
3.123 The annexes to the DRC Memorial contain several lists that purport to be
based on “claims forms” completed by victims.330 As was the case for the UN
reports and NGO reports discussed above, the DRC does not actually use these lists
as a means of systematically and directly supporting its claims for compensation
but instead uses them solely for “illustrative” purposes.331
3.124 The DRC Memorial asserts332 that sometime after 2005 the DRC created a
“Commission of Experts” that engaged in “extensive data collection,” which
included developing a “victim identification form” and dispatching “teams” to
various locations to gather signed “claims forms” from victims setting out the
injury they allegedly suffered. The DRC claims that nearly 10,000 forms were
gathered and those “forms are annexed to this Memorial”.333
330 “Tableau de Synthèse Effectif Décès”, DRCM Annex 2.1; “Rapport Fréquence Type Lésions de
1998 à 2003”, DRCM Annex 2.2; “Tableau de Synthèse Effectif Fuite”, DRCM Annex 2.3;
“Tableau de Synthèse Effectif Perte Biens”, DRCM Annex 2.4; “Tableau Synthèse du
Dépouillement Manuel des Fiches Individuelles de Victimes de la Guerre de Six Jours à Kisangani
du 5 au 10 juin 2000 Entre les Forces Armées Ougandaises et Celles du Rwanda”, DRCM Annex
4.8.
331 DRCM, para. 4.16 (“[T]he DRC will use, for the purposes of illustration and not an effort to be
exhaustive, the results of the work of the Commission of Experts created for the purpose of these
proceedings”.) (Translation by Counsel, original in French: “la RDC utilisera, à titre illustratif et
non exhaustif, les résultats des travaux des commissions d’experts créées aux fins de la présente
procedure.”); DRCM, para. 4.59 (“[A]n impressive amount of documentation has been gathered,
on the basis of the forms completed by the victims, which has been processed in the form of lists or
data sheets. It includes, for illustrative purposes and not for the purpose of being exhaustive,
information regarding the victims and the various types of damages which they suffered”.)
(Translation by Counsel, original in French: “A ainsi été rassemblée une documentation imposante,
sur la base des formulaires remplis par les victimes, qui a été traitée sous forms de listes ou de
fiches. Elle rassemble, à titre illustratif et non exhaustif, des renseignements sur les victimes et les
divers types de dommages qu’elles ont subis.”).
332 Ibid., paras. 1.30-1.35. Two ministerial decrees relating to this Commission of Experts appear
as Annexes 1.1 and 1.2 of the DRC Memorial.
333 Ibid., para. 1.35 (Translation by Counsel, original in French: “Ces fiches sont annexées au
présent mémoire.”).
104
3.125 The entirety of the DRC’s presentation drawing on the “claims forms” is
deeply, indeed irretrievably, problematic.
3.126 First, although the DRC says otherwise, no “claims forms” are in fact
annexed to the Memorial. Nor is there, as the DRC says, any “[s]oftware for
examining individual victim records (only in digital form)”.334 The Court cannot
be expected to rely on information, or any lists derived from that information, as
evidence if the information itself has not been presented to the Court.
3.127 Assuming that these claims forms are similar to those the DRC provided to
Uganda during the course of bilateral settlement negotiations, the reason for the
DRC holding them back is understandable. The claims forms that Uganda has seen
were typically not signed or witnessed; they often referred to harm caused by actors
other than Uganda; they rarely indicated any valuation of the alleged harm; they
included multiple forms filled out by the same person; and they were accompanied
by no supporting documentation. If the DRC had presented them to the Court, they
would be demonstrably unreliable.
3.128 Second, the “claims forms” were apparently collected years after the events
in question―and the DRC’s lists derived from them even later.335 Indeed, the DRC
itself admits that the “work of gathering information from the victims was
334 Ibid., para. 1.27 (Translation by Counsel, original in French: “[l]ogiciel permettant de consulter
les fiches individuelles des victims (uniquement en format électronique)”.). The DRC’s claimed
software for examining claims forms is just a folder entitled (Pièce 1.3 format électronique), Annex
1.3, that contains folders with summary tables on deaths, injuries, displacement, and property
damages in Ituri, Kisangani, Beni, Butembo, and Gemena. The summary tables in those folders are
the same as those stated in other Annexes (for example Annexes 2.4bis, 2.4quater, 2.4ter relating
to property damages in Beni, Gemena and Butembo and Annexes in the folder titled “Dommage
Perte Biens”, or Property loss in Annex 1.3.) Such duplications only add confusion to already
confusing and confused claims.
335 Ibid., paras. 1.28-1.35.
105
conducted several years after the end of the war and proved to be particularly
difficult and delicate” because victims had “difficulty… in recalling specific
circumstances” and “finding official documents”.336 In this respect, Uganda recalls
that, at the merits phase, the Court did not find probative the testimonials of certain
DRC nationals because they were prepared “more than three years after the alleged
events and some 20 months after” the DRC lodged its Application with the Court,
and were not signed.337 The same conclusion applies a fortiori to the various lists
the DRC presents that purport to be based on the claims forms.
3.129 Third, the DRC has failed to explain in any detail its methodology for
collecting the alleged “claims forms”. The concern is obvious: when a government
official approaches someone and indicates that an international court may render
compensation in his/her favor provided that he/she fills out a form, there are
reasonable doubts as to whether objective information is actually being gathered.
3.130 The EECC was extremely cautious in giving weight to claims forms
prepared specifically for those proceedings, especially claims forms that were not
tailored to the underlying liability findings.338 For example, the Commission stated
that
336 Ibid., para. 1.33 (Translation by Counsel, original in French: “Ce travail de collecte des
informations auprès des victimes elles-mêmes, réalisé plusieurs années après la fin de la guerre,
s’est révélé particulièrement difficile et délicat. Plusieurs éléments ont rendu complexe la récolte
de preuves sur le terrain, comme:- le faible niveau d’instruction de la majorité des victimes;- la
difficulté pour ces dernières de se remémorer les circonstances précises d’événements à la fois
profondément traumatisants et parfois déjà anciens;- les difficultés de retrouver les documents
officiels comme les pièces d’identités, certificats de décès, etc. pour toute la période de guerre qui
s’est caractérisée par une désorganisation profonde de tous les services administratifs et publics”.).
337 Armed Activities (2005), para. 64.
338 The preliminary decisions and the awards of the Commission are collected in U.N.
Codification Division Publications, Reports of International Arbitral Awards, Volume XXVI,
available at http://legal.un.org/riaa/vol_26.shtml (last accessed 22 Jan. 2018).
106
“the claims forms process that Eritrea designed and
implemented for these property claims has
significant weaknesses. Inspection of the forms
confirms that they are not correlated to the
Commission’s findings of liability, and that they
address significant elements of damages for which
the Commission did not find liability. Some
questions are phrased in ways that may have invited
inflated damage claims or otherwise elicited
unreliable information”.339
3.131 Further, the EECC stated that the “process for determining these property
loss claims also seems to have been largely divorced from any underlying evidence.
Persons who filled out claims forms were not required to provide any supporting
evidence or documentation, and any narrative information they did offer apparently
was not considered in assessing the amounts claims”.340
3.132 As discussed more fully in Chapters 5 to 9, the DRC relies on lists derived
from these “claims forms”, even though such forms appear to suffer from exactly
the same kinds of problems: they are not obviously related to the underlying
liability findings of the Court; they were filled out for the purpose of supporting
this litigation; they do not appear to have included supporting evidence; and they
are being used to support claims that appear to have no connection to the
information contained in the form.
3.133 If one reviews the lists ostensibly based on the claims forms presented by
the DRC, the problems only deepen. For example, with respect to deaths, the DRC
provides three lists of persons allegedly killed: (1) a DRC Commission of Experts
339 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) (hereinafter “Eritrea’s Damages Claims
(Final Award, 2009)”), para. 66.
340 Ibid., para. 67.
107
list (Annex 4.5a); (2) a list of unknown provenance entitled “List of the Victims of
Various Wars in Kisangani (14-17 August 1999, 5 May 2000, and 5-10 June 2000)”
(Annex 4.6); (3) and a list of claims forms (Annex 4.7a). None of these lists indicate
that Uganda was responsible for the acts that lead to any of the deaths nominally
recorded. And none of these lists indicates anything about the age of the deceased
or whether he or she was a wage-earner.
3.134 The DRC notably did not use any of these lists when calculating its damages
for loss of life. This suggests one of two possibilities, neither of which helps the
DRC: either the DRC itself does not find its lists reliable or it finds the lists reliable
but is unhappy that they do not support the exorbitant damages that it claims.
3.135 Consider as well the DRC’s list with respect to looting in the Ituri region.
Here, the DRC relies on “a detailed list of the property looted” that it says was
“prepared on the basis of the data sheets put together by the DRC”.341 Although the
DRC asserts that the detailed list of looted property is attached in an annex to
Chapter 3 of the Memorial,342 in fact there is no such annex to that chapter. The
reference instead appears to be to Annex 1.3, which contains a file entitled
“Victimes PerteBien_ITURI”. That file does list persons who allegedly suffered
property damages, describes property allegedly damaged and assigns values to that
property,343 but the list is not supported by any underlying evidence as to the
occurrence of the harm or its valuation.
341 DRCM, para. 3.48 (Translation by Counsel, original in French: “[U]ne liste détaillée des biens
pillés relevant de différentes catégories (bétail, véhicules, marchandises, etc.), établie sur la base
desdites fiches”.).
342 Ibid., para. 3.48.
343 “Evaluation Pertes des Biens” in Victimes_PerteBien_ITURI, DRCM Annex 1.3.
108
3.136 In fact, the values assigned on the list to particular types of property is
typically the same no matter where in the DRC the alleged property harm occurred.
For example, the value of a vehicle is indicated as an even US$ 10,000 across
nearly all times and all places. This suggests that these numbers were not based on
particularised claims forms but were arbitrarily selected by the DRC itself. There
is equally no evidence showing that the listed property was looted by UPDF
soldiers or as a result of Uganda’s failure to comply with its obligations as an
occupying Power.
3.137 The lists prepared by the DRC purportedly based on the claims forms also
often provide no means for linking a listed entry to a particular claims form. Out
of the DRC’s claimed 4,164 victims of deaths in the lists contained in Annex 4.7,
the vast majority (3,827) are not even identified by name; they are simply
mentioned as “non signalé”.344 But, as the EECC held, “[t]here can be no
assessment in a claim involving huge numbers of hypothetical victims”.345
*
3.138 In conclusion, the Court was clear in its 2005 Judgment that, at this
reparation phase, it would be incumbent upon the DRC to prove the exact injury
that it suffered as a result of specific actions of Uganda that were internationally
wrongful. This chapter has explained why, as a general matter, the DRC has failed
to present any such evidence.
344 “Evaluation Décès”, DRCM Annex 4.7.a.
345 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) (hereinafter “Ethiopia’s Damages Claims
(Final Award, 2009)”), para. 64.
109
3.139 Although it pursues different tactics, in most instances, rather than prove
exact injury relating to specific incidents, the DRC simply provides a few
“illustrations” of incidents where harm allegedly occurred, based on various types
of evidence that are deeply flawed. The DRC then plucks large numbers from a
few reports, which themselves are flawed, and manipulates those numbers using
arbitrary “multipliers”, “distribution keys” or “percentages” to come up with
compensation claims that can only be characterised as excessive in the extreme.
3.140 Uganda respectfully submits that the DRC’s casual approach to proving its
claims should not be countenanced. The DRC bears the burden of proving its
claims for reparation. It must carry that burden by presenting convincing evidence
that establishes, with a high level of certainty, that specific financially assessable
harm occurred as the result of particular wrongful actions of Uganda, as well as the
valuation of such harm. The DRC Memorial fails to make those showings.

111
CHAPTER 4
SYSTEMATIC FLAWS IN THE DRC’S APPROACH TO THE LAW
4.1 The previous chapter demonstrated the systematic flaws in the DRC’s
approach to evidence. This chapter demonstrates the legal flaws that pervade the
DRC Memorial.
4.2 Section I demonstrates how the DRC has ignored, misstated or misapplied
the rules on both the attribution of specific actions to Uganda, and the causal
relationship between those actions and the harms allegedly suffered by the DRC.
Section II shows that the DRC is essentially asking the Court to decide the issue
of compensation ex aequo et bono, which it cannot do. Section III explains that
the DRC is effectively asking the Court to impose punitive damages on Uganda,
which it also cannot do. Finally, Section IV demonstrates that the DRC is
impermissibly seeking compensation in amounts that exceed Uganda’s payment
capacity.
I. The DRC Ignores the Requirements to Prove Specific Actions of Uganda
and the Existence of a Causal Connection between Those Actions and the
Harm It Alleges
4.3 Uganda has recalled that the Court made clear in the 2005 Judgment that,
during the present phase of the proceedings, “[t]he DRC would… be given the
opportunity 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”.346
346 Armed Activities (2005), para. 260 (emphasis added).
112
4.4 It therefore falls to the DRC now to “demonstrate and prove” the “specific
actions of Uganda” constituting internationally wrongful acts. Assuming it does
that, the DRC must then also demonstrate and prove the existence of a causal nexus
between those specific actions and the “exact injury” the DRC claims to have
suffered, including the valuation of the harm.
4.5 In other words, even if the DRC establishes the existence of harm, such
harm is only compensable in these proceedings if the DRC proves that it is the
“result” of “specific actions” of Uganda falling within the ambit of the
internationally wrongful acts identified in the 2005 Judgment, and also proves the
valuation of such harm.
A. THE DRC MUST PROVE THE SPECIFIC ACTIONS OF UGANDA FALLING
WITHIN THE SCOPE OF THE COURT’S GENERAL FINDINGS IN 2005
4.6 The starting point for the DRC in advancing its compensation claims should
have been to identify, for each claim, the relevant internationally wrongful act for
which the Court deemed Uganda responsible in the 2005 Judgment. In most
instances, however, the DRC Memorial fails to specify the general finding from
the 2005 Judgment upon which it bases its claims. It largely ignores the Court’s
previous conclusions concerning the internationally wrongful acts for which
Uganda was found responsible.
4.7 The DRC also ignores the Court’s general findings concerning acts for
which Uganda is not responsible. Such findings are as much res judicata as the
findings against Uganda.347 Yet, as discussed below, the DRC seeks to circumvent
347 See Armed Activities (2005), para. 260 citing to Nicaragua v. United States of America (Merits,
1986).
113
them by adopting an impermissibly lax approach to the requirement to prove
specific actions attributable to Uganda.
4.8 The Court identified four general categories of conduct constituting
internationally wrongful acts for which Uganda was responsible in the 2005
Judgment. Those four categories must serve as the general template within which
specific actions of Uganda remain to be proven.
4.9 First, the Court made a general finding that Ugandan armed forces
themselves committed acts that caused harm in the DRC. The Court found that, to
an unspecified degree, Ugandan forces committed acts of killing, torture and other
forms of inhumane treatment of the Congolese civilian population; destroyed
villages and civilian buildings; failed to distinguish between civilian and military
targets and to protect the civilian population in fighting with other combatants;
trained child soldiers; and incited ethnic conflict.348 The Court also found that,
again to an unspecified degree, Ugandan forces committed acts of looting,
plundering and exploitation of Congolese natural resources.349 Unlike the other
three categories of acts discussed below, these acts resulted in injuries directly
inflicted by Ugandan organs.
4.10 The DRC is, of course, entitled to pursue claims within the scope of this
general finding. To do so successfully, however, it must now prove specific actions
of Ugandan armed forces that took the form of killings, torture, destruction of
property, etc. by, for example, producing evidence concerning particular incidents
that occurred in particular and at particular times.
348 Armed Activities (2005), para. 345 (3).
349 Ibid., para. 345 (4).
114
4.11 Second, the 2005 Judgment included a general legal finding that Uganda
wrongfully extended military, logistic and economic support to irregular forces
operating in the DRC.350 At the same time, the Court explicitly stated that those
forces “were not under the control of Uganda”351 and therefore their conduct was
not attributable to Uganda. Thus, while the DRC may pursue claims within the
scope of this general finding, it now bears the burden of proving specific actions of
Uganda that took the form of assistance to irregular forces.
4.12 The DRC’s reparation cannot be measured based on injuries inflicted by
the rebel groups themselves, over whom Uganda did not exercise effective control.
As just stated, the Court declined to find the conduct of the irregular forces that
Uganda supported attributable to Uganda. To now find Uganda nevertheless
responsible to make reparation for the conduct of those forces would effectively
overturn this express finding. Moreover, the Court has explained that the “effective
control” test requires showing such control “in respect of each operation in which
the alleged violations occurred, not generally in respect of the overall actions taken
by the persons or group of persons having committed the violations”.352
4.13 Third, the Court issued a general legal finding in 2005 that Uganda failed,
as an occupying Power in Ituri, to take measures to ensure respect for human rights
and international humanitarian law,353 and to prevent acts of looting, plundering
and exploitation of Congolese natural resources.354 Here, too, Uganda’s
internationally wrongful acts did not result in any direct harm in the DRC. Rather,
350 Ibid., para. 345 (1).
351 Ibid., para. 247, referring to para. 160. See also Armed Activities (2005), para. 177.
352 Bosnia and Herzegovina v. Serbia and Montenegro (2007), para. 400.
353 Armed Activities (2005), para. 345 (3).
354 Ibid., para. 345 (4).
115
Uganda’s wrongful acts consisted of a failure to exercise due diligence to prevent
such harm by others. To successfully pursue claims within the scope of this general
finding, the DRC must now prove specific measures that Uganda failed to take as
an occupying Power in Ituri.
4.14 The reparation due to the DRC for Uganda’s failure to exercise due
diligence cannot be measured by pointing to injuries materially inflicted by others
in the occupied territory. The Court explained in the Application of the Convention
on the Prevention and Punishment of the Crime of Genocide case that it is
necessary to establish “from the case as a whole and with a sufficient degree of
certainty that the [harm] would in fact have been averted if the Respondent had
acted in compliance with its legal obligations”.355
4.15 Fourth, in 2005 the Court found generally that Uganda was responsible for
engaging in military activities in the DRC without the DRC’s consent in violation
of the principles of non-use of force in international relations and nonintervention.
356 To successfully pursue claims within the scope of this general
finding, the DRC must prove specific actions of Uganda (such as the use of artillery
against DRC military forces in a particular location) that violated these principles.
4.16 It is not enough for the DRC simply to rely on the Court’s general jus ad
bellum finding as a basis to seek compensation for any harm that occurred during
the war. Permitting such an approach would fly in the face of the Court’s express
admonition in the 2005 Judgment that the DRC must prove the “specific actions of
355 Bosnia and Herzegovina v. Serbia and Montenegro (2007), para. 462.
356 Armed Activities (2005), para. 345 (1).
116
Uganda”. As with all other categories of wrongful acts, the DRC must now identify
particularised actions of Uganda within the scope of the Court’s general finding.
4.17 Needless to say, conduct for which the Court did not find Uganda
responsible in 2005 cannot serve as a basis for compensation in this reparation
phase. In particular, conduct by rebel groups occurring outside Ituri is neither
directly attributable to Uganda nor a basis for asserting that Uganda failed in a duty
to prevent such conduct. The Court explicitly stated that “with regard to the illegal
activities of such groups outside of Ituri, it cannot conclude that Uganda was in
breach of its duty of vigilance”.357
B. THE DRC MUST ALSO PROVE THE CAUSAL NEXUS BETWEEN EACH SPECIFIC ACTION OF UGANDA AND THE HARM IT ALLEGES
4.18 To sustain its reparation claim, the DRC must not only prove “specific
actions of Uganda” falling within the general categories of wrongful acts identified
by the Court in 2005, but also must prove that the injuries claimed were suffered
“as a result of” those actions. In other words, the DRC must prove a causal
connection between the two.
1. The Requirement of a Direct and Certain Causal Nexus
4.19 It is a basic tenet of the rules on State responsibility that a State has a duty
to make reparation only if a duly established injury is the result of an internationally
wrongful act. Article 31 of the Articles on State Responsibility, entitled
“Reparation,” codifies this requirement in the following terms: “1. The responsible
State is under an obligation to make full reparation for the injury caused by the
357 Ibid., para. 247.
117
internationally wrongful act. 2. Injury includes any damage, whether material or
moral, caused by the internationally wrongful act of a State”.358
4.20 Commenting on Article 31, the ILC stated that paragraph 2 “is used to make
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”.359
4.21 Said differently, and to use the words of the Court, to trigger the duty to
make reparation, there must exist “a sufficiently direct and certain causal nexus
between the wrongful act… and the injury suffered”.360 The Court explained in the
Diallo case:
“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”.361
4.22 Only if such causal nexus is established can the claimed injury be legally
deemed the “consequence”362, or result, of the wrongful conduct. Indeed, some
358 U.N. General Assembly, Responsibility of States for internationally wrongful acts, U.N. Doc.
A/RES/56/83 (28 Jan. 2002), Art. 31 (emphasis added), Annex 14.
359 Vincent Kangulumba Mbambi, Indemnisation des victimes des accidents de la circulation et
assurance de responsabilité civile automobile (2002), p. 92, para. 9 (emphasis added).
360 Bosnia and Herzegovina v. Serbia and Montenegro (2007), p. 234, para. 462.
361 Diallo (2012), para. 14.
362 Ibid.
118
authors consider the causation requirement to inhere in the very notion of “injury”
in international law because, even if real, an injury is not claimable unless it can be
considered the consequence of the wrongful act.363
4.23 In international practice, the requirement of a “sufficiently direct and
certain causal nexus” is often expressed by stating that the wrongful act must be
the “proximate cause” of the injury. The proximate cause requirement can be found
in the case law of many international courts and tribunals, including the Venezuelan
Mixed Claims Commissions,364 the General Claims Commission established
between Mexico and the United States,365 and the U.S.-Germany Mixed Claims
Commission established after the First World War.366 The requirement is also
363 J. J. Combacau & S. Sur, Droit international public (1995), p. 539.
364 See Company General of the Orinoco Case, 10 RIAA 184 (31 July 1905), p. 282 (“They are not
a proximate result of the primary act for which it is held responsible in damages”.); Heirs of Jules
Brun Case, 10 RIAA 24 (31 July 1905), p. 40 (“[T]he bullet wound thus inflicted was the proximate
cause of the death of Jules Brun”.); Heirs of Jean Maninat Case ,10 RIAA 55 (31 July 1905), p. 81
(“natural and proximate cause of a subsequently developed condition and therefore render the
defendant liable for that condition”.); Davis Case (on merits), 9 RIAA 460 (1903), p. 463 (“this
negligence was directly and proximately contributory to the injuries complained of”.); Valentiner
Case, 9 RIAA 403 (1903), p. 403 (“the loss of the crop was a natural and proximate consequence
of said illegal draft”.). See also the US-Venezuela Commission: Dix Case, 9 RIAA 119 (1903-
1905), p. 121 (“Governments, like individuals, are responsible only for the proximate and natural
consequences of their acts”.); Monnot Case, 9 RIAA 232 (1903-1905), p. 233 (“He is entitled to
compensation for the proximate and direct consequences of the wrongful seizure of his property”.).
365 Armando Cobos Lopez (United Mexican States) v. United States of America, 4 RIAA 20 (2 Mar.
1926), p. 20.
366 See United States v. Germany, U.S.-Germany Mixed Claims Commission, Administrative
Decision No. II, Award, 7 RIAA 1 (1 Nov. 1923), pp. 29-30; United States Steel Products Company
(United States) v. Germany, Costa Rica Union Mining Company (United States) v. Germany, and
South Porto Rico Sugar Company (United States) v. Germany (War-Risk Insurance Premium) 7
RIAA 44 (1 Nov. 1923), pp. 44-63, passim; Eastern Steamship Lines, Inc. (United States) v.
Germany (War-Risk Insurance Premium Claim), 7 RIAA 71 (11 Mar. 1924); Provident Mutual Life
Insurance Company and Others (United States) v. Germany (Life Insurance Claim), 7 RIAA 91 (18
Sep. 1924), pp. 112-113, p. 116; Eisenbach Brothers and Company (United States) v. Germany, 7
RIAA 199 (13 May 1925), p. 202-203; Standard Oil Company of New York (United States) v.
Germany, Sun Oil Company (United States) v. Germany, and Pierce Oil Company (United States)
v. Germany, 7 RIAA 301 (21 Apr. 1926), p. 307; Harriss, Irby & Vose (United States) v. Germany,
8 RIAA 17 (31 Aug. 1926), p. 20; S. Stanwood Menken, Administrator of the Estate of Alice E.
Tesson, Deceased, and Others (United States) v. Germany, and Andrew C. McGowin, Administrator
119
applied in contemporary practice by the Iran-U.S. Claims Tribunal,367 investment
tribunals established under ICSID,368 the European Court of Human Rights,369 the
Inter-American Court of Human Rights370 and the ICC.371 Notably, both the
of the Estate of Frank B. Tesson, Deceased, and Others (United States) v. Germany, 8 RIAA 24 (31
Aug. 1926), p. 25; Rosa Vollweiler (United States) v. Germany, 8 RIAA 45 (8 Mar. 1928), p. 50;
James A. Beha, Superintendent of Insurance of the State of New York, as Liquidator of Norske Lloyd
Insurance Company, Limited, for American Policyholders (United States) v. Germany, 8 RIAA 55
(12 Apr. 1928), p. 56; George Achelis, Julie Achelis Spies, John Achelis, Estate of Annie Achelis
Vietor, Deceased, and Estate of Fritz Achelis, Deceased, Heirs and Legatees of the Estate of
Thomas Achelis, Deceased (United States) v. Germany, 8 RIAA 59 (25 Apr. 1928), p. 63.
367 See Hoffland Honey co. v. Natl. Iranian Oil Co., Case No. 495, Iran Award 22-495-2 (Iran-
U.S.Cl.Trib.), 2 Iran-U.S.C.T.R. 41 (26 Jan. 1983), p. 41.
368 See Biwater Gauff (Tanzania) v. United Republic of Tanzania, ICSID Case No. ARB/05/22,
Award (24 July 2008) (Born, Landau, Hanotiau), p. 233, Section 787; Joseph Charles Lemire v.
Ukraine, ICSID Case No. ARB/06/18, Award (28 March 2011) (Fernández-Armesto, Paulsson,
Voss), p. 50, Section 163; LG&E Energy Corp., LG&E Capital Corp. LG&E International, Inc. v.
Argentine Republic, ICSID Case No. ARB/02/1, Award (25 July 2007) (de Maekelt, Rezek, Jan van
den Berg), p. 14, Section 50.
369 Case of Paulet v. The United Kingdom (app. no. 6219/08), Judgment (ECtHR 13 May 2014),
Section 73: (“However, in the absence of a proximate causal link between the procedural violation
found and financial loss sustained by the applicant by reason of the confiscation order, the Court
cannot make an award to the applicant under this head”.). In Case of Iglesias Gil and A.U.I. v. Spain
(app. no. 56673/00), Final Judgment (ECtHR 29 July 2003), Section 70, the ECtHR considers a
causal nexus to be “too remote”, as opposed to proximate.
370 Case of Aloeboetoe et al. v. Suriname, Judgment, Reparations and Costs (IACtHR 10 Sept.
1993), p. 12, Section 48.
371 Case of the Prosecutor v. Ahmad Al Faqi Al Mahdi, Case No. ICC-01/12-01/15, Reparations
Order (ICC Trial Chamber 17 Aug. 2017), para. 74.
120
UNCC372 and EECC373 adhered to the proximate cause requirement when deciding
war reparations claims.
4.24 The proximate cause requirement excludes from the obligation to make
reparation any injury that is indirect,374 consequential or too remote from the
wrongful act.375 Likewise, if the damage is not “foreseeable”376 in the normal
course of events, it is deemed to be too remote from the wrongful act and therefore
372 U.N. Security Council, 2981st meeting, Resolution 687 (1991), U.N. Doc. S/RES/687 (1991) (8
Apr. 1991), p. 7, para. 16, Annex 1 affirms the responsibility of Iraq for “any direct loss, damage –
including environmental damage and the depletion of natural resources – or injury (…) as a result
of its unlawful invasion and occupation of Kuwait”. The “direct loss” requirement was considered
to be equivalent to the usual “proximate cause” theory:
“The causal link is presumed to exist when, under the natural course of events, the damage
could have been foreseen. Predictability prevails in judicial practice. By now the most
commonly used test in damages claims seems to be whether the act of a State was the
‘proximate cause’ of the loss suffered, or whether that act was too remote to create liability”.
E. Lauterpacht et al., eds, INTERNATIONAL LAW REPORTS, Vol. 117 (2000).
See also U.N. Compensation Commission, Report and Recommendations Made by the Panel of
Commissioners Concerning the First Instalment of Individual Claims for Damages up to $100,000
(Category “C” Claims), U.N. Doc. S/AC.26/1994/3 (21 Dec. 1994), pp. 22-23, Annex 5; U.N.
Security Council, Report and Recommendations Made by the Panel of Commissioners Concerning
the Seventh Instalment of Individual Claims for Damages up to $100,000 (Category “C” Claims),
U.N. Doc. S/AC.26/1999/11 (24 Jun. 1999), p. 17, Section 29, Annex 8.
373 Preliminary decision n°7, Guidance Regarding Jus ad Bellum Liability, Eritrea-Ethiopia Claims
Commission, reprinted in 26 U.N.R.I.A.A. 631 (2009), p. 507.
374 “The Geneva Arbitration” (the “Alabama” case), in John B. Moore, HISTORY AND DIGEST OF
THE INTERNATIONAL ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY (1898), p.
641 (1872).
375 See “Report of the Commission to the General Assembly on the work of its fifty-third session”,
in Yearbook of the International Law Commission, Vol. II, Part 2, Doc. No.
A/CN.4/SER/A/2001/Add.1 (2001), p. 93.
376 Responsabilité de l'Allemagne a Raison des Dommages Causés dans les Colonies Portugaises
du Sud de l'Afrique, 2 RIAA 1011 (1949), p. 1031.
121
not caused by it. (Drawing from French and Belgian law, Congolese law is no
different in that regard than international law.377)
4.25 Simply put, the injury to be made whole by the State responsible for an
internationally wrongful act must be “ascribable”378 to that act. That is only true if
such act is the proximate—i.e., the direct and certain—cause of that injury. States
do not bear responsibility for “any and all consequences flowing from an
internationally wrongful act”.379
2. The Causal Nexus Requirement Applies to Violations of Obligations of
Due Diligence
4.26 The causality principles just stated are fully applicable to harms stemming
from the breach of a due diligence obligation.
4.27 As stated, the Court squarely confronted this issue after it found that the
Federal Republic of Yugoslavia was responsible under Article 1 of the Genocide
Convention for failing to exercise due diligence to prevent the Bosnian Serb Army
from committing atrocities in Srebrenica. Although the Court concluded that a
violation had occurred, it declined Bosnia’s request for compensation. The Court
ruled:
“[T]he 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
377 Vincent Kangulumba Mbambi, Indemnisation des victimes des accidents de la circulation et
assurance de responsabilité civile automobile (2002), p. 352.
378 ARSIWA (2001), Art. 31, cmt. 9.
379 Ibid.
122
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”.380
4.28 Thus, even when a due diligence obligation is shown to have been breached,
the applicant State must still show that the harm at issue “would in fact have been
averted if the Respondent had acted in compliance with its legal obligations”. In
the absence of such a showing, no compensation can be awarded. In such cases, as
in Bosnia v. Serbia, satisfaction is the appropriate form of reparation.
3. The Causal Nexus Requirement Also Applies to Violations of the
Principles Against the Use of Force and Non-intervention
4.29 These same causality principles are also fully applicable to harms stemming
from the breach of the principles of non-use of force and non-intervention in
international relations. This is confirmed by State practice, jurisprudence and
doctrine.381
4.30 The required causal nexus is not established based solely on a finding that
the injury would not have occurred absent the illegal use of force. The UNCC, for
example, ruled:
“For a direct link to exist, the Panel initially holds
that it is not sufficient that a loss would not have
occurred had the invasion and occupation [of Kuwait
by Iraq] not taken place. With such a ‘but for’ test,
380 Bosnia and Herzegovina v. Serbia and Montenegro (2007), para. 438.
381 See generally Pierre d’Argent, Les réparations de guerre en droit international public (Oct.
2002), pp. 644-659.
123
sometimes also referred to as factual causation, any
loss that could be traced back through a causal chain
to the invasion and occupation would be
compensable. This would be a wider standard than
the one laid down in resolution 687 according to
which only losses resulting directly from the
invasion and occupation are compensable, and a ‘but
for’ test could at best serve as a rule of exclusion”.382
4.31 The same approach has been followed by other international courts and
tribunals. Addressing Eritrea’s responsibility for its violations of jus ad bellum, the
EECC determined that
“the necessary connection is best characterized
through the commonly used nomenclature of
‘proximate cause.’ In assessing whether this test is
met, and whether the chain of causation is
sufficiently close in a particular situation, the
Commission will give weight to whether particular
damage reasonably should have been foreseeable to
an actor committing the international delict in
question. The element of foreseeability, although not
without its own difficulties, provides some discipline
and predictability in assessing proximity.
Accordingly, it will be given considerable weight in
assessing whether particular damages are
compensable”.383
4.32 Applying these principles, the UNCC excluded for lack of a sufficiently
direct causal link all claims relating to losses incurred as a result of the embargo
imposed by the UN Security Council or, more generally, losses “due to the chaotic
382 E. Lauterpacht et al., eds, INTERNATIONAL LAW REPORTS, Vol. 117 (2000), Section 214.
383 Preliminary decision n°7, Guidance Regarding Jus ad Bellum Liability, Eritrea-Ethiopia Claims
Commission, reprinted in 26 U.N.R.I.A.A. 631 (2009), para. 13.
124
economic situation following Iraq’s unlawful invasion and occupation of
Kuwait”.384
4.33 Likewise, the EECC rejected the claims of both parties relating to
compensation for alleged macroeconomic damages resulting from “general
disruption of the civilian economy in wartime”385 or “the generalized decline in
economic conditions”.386 It held that a State’s international responsibility does not
extend “to all of the losses and disruptions accompanying an international
conflict”387 because “[a] breach of the jus ad bellum… does not create liability for
all that comes after”.388
4.34 Consequently, to assess whether an injury is, legally speaking, the result of
an illegal use of force or intervention, it is not enough to say that the injury would
not have occurred had a use of force not taken place. To satisfy the causal nexus
requirement, the claimant State must establish a direct and certain causal link
between the use of force or intervention and the harm allegedly suffered.389
384 See U.N. Security Council, Compensation Commission, Governing Council, 8th Session,
Compensation for Business Losses Resulting from Iraq’s Unlawful Invasion and Occupation of
Kuwait where the Trade Embargo and Related Measures Were also a Cause, Decision taken by the
Governing Council of the United Nations Compensation Commission at its 31st meeting, held in
Geneva on 18 December 1992 U.N. Doc. S/AC.26/1992/15 (4 Jan. 1993), para. 5, Annex 4. See
also para. 3 and 9, together with U.N. Security Council, Decision taken by the Governing Council
of the United Nations Compensation Commission during the resumed Fourth Session, at the 23rd
meeting, held on 6th March 1992, U.N. Doc. S/AC.26/1992/9 (6 Mar. 1992), para. 6, Annex 3.
385 Ethiopia’s Damages Claims (Final Award, 2009), para. 395.
386 Eritrea’s Damages Claims (Final Award, 2009), para. 207.
387 Ethiopia’s Damages Claims (Final Award, 2009), para. 289.
388 Ibid., para. 289.
389 See Différend Società Mineraria et Metallurgica di Pertusola — Décisions nos 47, 95 et 121, 13
RI.AA 174 (11 May 1950 and 3 Mar. 1952), p.186:
“Le dommage, pour pouvoir donner naissance à l’obligation de le réparer, ne doit pas avoir
comme cause uniquement l’état de guerre, mais encore un fait dû à cet état et qui a atteint
125
4.35 Likewise, where a violation of the principle of non-intervention arises from
activities such as the logistical or financial support afforded to irregular forces
operating in another country, it is not sufficient to conclude that in the absence of
that support certain injuries would not have occurred. In order for such injuries to
be compensable by the responsible State, it must be established that the logistical
or financial support in question is the direct and certain cause of any injury claimed.
C. THE DRC MEMORIAL FAILS TO PROVE EITHER SPECIFIC ACTIONS OF UGANDA FALLING WITHIN THE SCOPE OF THE COURT’S GENERAL FINDINGS
OR THE REQUIRED CAUSAL NEXUS
4.36 The DRC Memorial does not make any significant effort to make the
showings required of it by the 2005 Judgment; namely, (1) to prove specific acts
attributable to Uganda that fall within one of the general findings from the 2005
Judgment, (2) to identify a specific harm to the DRC, and then (3) to prove a
sufficiently direct and certain causal nexus between the two.
4.37 To the contrary, the DRC Memorial does little more than try to prove the
existence of certain categories of harm in general, and then assumes (without
proving) the connection of that harm to a wrongful act attributable to Uganda.
Proceeding in this way may allow the DRC to maximise its claims and minimise
its evidentiary showing but, Uganda respectfully submits, does little to assist the
Court with the weighty task before it.
un bien en Italie soumis à restitution au sens de l'article 78, par. 4 a, in principio [of the 1947
Peace Treaty with Italy]. Il ne suffit pas, d’après l’analyse grammaticale, d’un lien de
causalité indirect entre le dommage qu’a valu au ressortissant des Puissances Alliées ou
Associées la propriété d’un bien en Italie, et l’état de guerre qui a existé entre l’Italie et les
Puissances Alliées et Associées; il faut, bien plus, un lien de causalité direct entre le
dommage et un fait dommageable dû à la guerre et qui a frappé le bien”.
126
4.38 Several excerpts will serve to expose the pervasive flaws in the DRC’s
approach to proving specific actions of Uganda, specific harm and the causal nexus
between the two. At paragraph 1.25 of the DRC Memorial, for example, the DRC
asserts that “all of the damage caused by Uganda’s wrongful behaviour actually
stems from the invasion of Congolese territory that began in August 1998 and the
support that State gave from that date to irregular groups”, and insists that “all of
the damage was indeed the consequence of Uganda’s wrongful behaviour, whether
such consequence is immediate or results from an uninterrupted chain of events”390.
4.39 The DRC reiterates this approach later in the Memorial:
“First of all, acts of damage will not be distinguished
based on the rule of international law that was
violated, be it for the most part the prohibition of the
use of force in international relations, violation of the
laws of armed conflict or international human rights
law. In practice, moreover, all human and material
damage in question is the result of the invasion of the
DRC by Ugandan forces, be it in the short term
(because it was caused upon the arrival of Ugandan
troops) or the longer term (whenever it is the result
of the repression of acts of resistance or more
generally of atrocities that took place after the
invasion phase strictly defined)”.391
390 DRCM, para. 1.25 (Translation by Counsel, original in French: “l’ensemble des dommages
causés par le comportement illicite de l’Ouganda découle en réalité de l’invasion du territoire
congolais qui a débuté au mois d’août 1998 ainsi que du soutien que cet Etat a apporté dès cette
date à des groupes irréguliers. Il n’existe aucune raison —et ceci rejoint les principes juridiques
rappelés plus haut— de distinguer les dommages en fonction de la règle juridique qui a été violée,
même si les spécificités de certaines d’entre elles peuvent parfois être prises en compte pour mesurer
la gravité du dommage. Ce qui importe, dans l’ensemble, c’est de démontrer que l’ensemble de ces
dommages ont bien été la conséquence du comportement illicite de l’Ouganda, que cette
conséquence soit immédiate ou résulte d’une chaîne ininterrompue d’événements”.).
391 DRCM, para. 2.05 (Translation by Counsel, original in French: “En premier lieu, les dommages
ne seront pas distingués en fonction de la règle de droit international qui a été violée, qu’il s’agisse
essentiellement de l’interdiction du recours à la force dans les relations internationales, de la
127
4.40 Addressing the injuries inflicted by irregular forces supported by Uganda,
the DRC adds again:
“The determining criterion is, in fact, not the
intrinsic lawfulness of each of these acts, much less
their attribution to Uganda. It lies in the
acknowledgment that the harmful act would not have
been caused without the support of Uganda, which
was explicitly established by the Court as illicit, to
its irregular forces”.392
4.41 These excerpts make clear that the DRC eschews the burden of proving
specific Ugandan actions, specific harm and the causal nexus between them. It
prefers to assume that unspecified harm occurred during the war and that some
proportion of that harm would not have occurred “but for” the actions of Uganda.
According to the DRC, a percentage of each and every injury that occurred in the
DRC during the conflict is automatically traceable back, through an uninterrupted
causal chain, to Uganda.
4.42 The DRC sometimes claims full compensation for alleged injuries and
sometimes only a percentage thereof. For instance, it claims that Uganda is
responsible for 45% of what it contends were the total number of violent deaths
violation du droit des conflits armés ou encore du droit international des droits humains. En
pratique, tous les dégâts humains et matériels dont il sera question résultent d’ailleurs de l’invasion
de la RDC par les forces ougandaises, que ce soit à court (parce qu’ils ont été occasionné lors de
l’arrivée des troupes ougandaises) ou à plus long terme (lorsqu’ils résultent de la répression des
actes de résistance ou plus généralement d’exactions qui ont eu lieu après la phase de l’invasion
stricto sensu)”.).
392 Ibid., para. 2.06 (Translation by Counsel, original in French: “Le critère déterminant n’est en
effet pas celui de la licéité intrinsèque de chacun de ces actes, ni encore moins celui de leur
attribution à l’Ouganda. Il réside dans le constat que cet acte dommageable n’aurait pas été causé
sans le soutien de l’Ouganda, explicitement établi par la Cour comme illicite celui-là, à ces forces
irrégulières”.).
128
during the conflict393 and of the alleged macroeconomic damages it suffered.394
With respect to its claims concerning harms to wildlife, the percentage of
responsibility the DRC attempts to apportion to Uganda varies from 50% to
90%.395
4.43 By such apportionment, the DRC seems to recognise that “other actors are
responsible for [the] outbreak”396 of the conflict and that certain losses allegedly
resulted from a “plurality of causes”.397 Such apportionments are, however, not
applied consistently and appear to be grounded in little more than conjecture.
4.44 More fundamentally, the DRC’s crude efforts at “apportionment” are an
attempt to mask the fundamental flaws in its approach―namely, its failure to prove
specific Ugandan acts, specific harm and the existence of a causal nexus tying the
two together―in the guise of “reasonableness”. In the absence of genuine proof of
specific acts, harm and causation, however, Uganda cannot even be considered as
one of a plurality of causes that resulted in compensable harm.
393 Ibid., para. 2.71.
394 Ibid., para. 6.32. See below on the alleged macroeconomic damage as a non-compensable head
of damage under international law.
395 See ibid., paras. 5.151, 5.161, 5.165, 5.167, 5.169, 5.171.
396 Ibid., para. 2.71 (Translation by Counsel, original in French: “d’autres acteurs sont responsables
de son déclenchement”.).
397 Ibid., para. 1.24 (Translation by Counsel, original in French: “pluralité des causes”.). On plurality
of causes and apportionment, see P. d’Argent, “Reparation, cessation, assurances and guarantees of
non-repetition in situations of shared responsibility” in PRINCIPLES OF SHARED RESPONSIBILITY IN INTERNATIONAL LAW: AN APPRAISAL OF THE STATE OF THE ART (A. Nolkaemper & I. Plakokefalos
eds., 2014), pp. 208-250.
129
D. THE PROPER APPROACH TO ATTRIBUTION AND CAUSALITY
4.45 The DRC’s claims must be approached by applying the proximate cause
standard to the four general categories of acts for which the Court found Uganda
responsible in the 2005 Judgment: (1) acts of Ugandan military forces that directly
harmed persons or property; (2) Ugandan support to (but not effective control over)
rebel groups; (3) lack of due diligence in Ituri; and (4) acts in violation of use of
force and non-intervention norms. The following paragraphs deals with each of
these four categories in turn.
1. Acts of the Ugandan Military That Directly Caused Harm
4.46 Uganda does not dispute that it is, in principle, responsible for the injuries
directly inflicted by members of its armed forces; such injuries do not raise
complex questions of causality. Nevertheless, it remains for the DRC to prove the
existence of such injuries and that they were inflicted by members of the Ugandan
military.
4.47 The DRC Memorial fails to make these showings. As discussed in the
remaining chapters of this Counter-Memorial, even those of the DRC’s claims that
relate to harms directly inflicted by Ugandan military forces invariably fail to
satisfy basic evidentiary requirements, including proof of the dates the alleged
incidents occurred, the identity of the victims, the number of victims and/or facts
establishing Uganda’s responsibility.
2. Uganda’s Support to Rebel Groups
4.48 The DRC Memorial proceeds on the basis that because of Uganda’s support
to certain rebel groups in the DRC, Uganda must pay compensation for any harm
inflicted by those groups. The DRC bases its claim on the “but for” test quoted
130
above. According to the DRC, without Uganda’s support, the harms inflicted by
the rebel groups would not have occurred.
4.49 Even assuming the DRC Memorial duly established “the exact injury”
inflicted by rebel groups (which it does not), it would also have to demonstrate and
prove that injury “was suffered as a result of”398 Uganda’s illegal support for those
groups. It is not enough to assert in abstracto that without Uganda’s support no
injury by rebel groups would have occurred. The “but for” approach the DRC urges
on the Court is far too indirect and uncertain to meet the requirement to establish
“a sufficiently direct and certain causal nexus between the wrongful act … and the
injury suffered”399 set out in the jurisprudence.
4.50 The loose “but for” test the DRC suggests would also effectively upset
matters that were decided with the force of res judicata in 2005. As stated, the 2005
Judgment makes clear that Uganda did not create the MLC400 and that it enjoyed a
large degree of autonomy in the conduct of its operations. Indeed, the Court not
only determined that Uganda did not control the MLC but also that it “could [not]
control” it.401 To now find Uganda nevertheless responsible to make reparation for
the conduct of the MLC would effectively attribute to Uganda conduct that the
Court expressly declined to so attribute in 2005.
4.51 The DRC’s argument that the harms caused by the MLC would not have
occurred but for assistance from Uganda is also belied by the facts. The MLC
398 Armed Activities (2005), para. 260.
399 Bosnia and Herzegovina v. Serbia and Montenegro (2007), para. 462. Those exact words were
reproduced in Diallo (2012), para. 14.
400 Armed Activities (2005), para. 160.
401 Ibid.
131
leader, Jean Pierre Bemba, himself declared that “it was he who was in control of
the military venture and not Uganda”.402 Moreover, the modus operandi of
MLC/ALC actions was fairly rudimentary, using machetes and small calibre
weapons that did not require outside support. The MLC/ALC also largely drew
largely from the ranks of soldiers who defected from the Zairian-Congolese armed
forces with their weapons and equipment.403 It also used military hardware and
stockpiles abandoned by fleeing Congolese soldiers, as the DRC itself admits.404
4.52 Thus, in addition to being legally insufficient to show the required causal
nexus, the DRC’s contention that the harms inflicted by rebel groups like the MLC
would not have occurred but for Uganda’s assistance raises serious questions of
fact, none of which the DRC makes any effort to answer.
4.53 Analogous points may be made with respect to other rebel groups. Nowhere
in the 2005 Judgment did the Court find that any irregular forces, including the
RCD (or the RCD-Mouvement de libération (ML), rival to the pro-Rwandan wing
RCD-Goma), were acting under the instructions or effective control by Uganda.
3. Uganda’s Violations of Its Due Diligence Obligations
4.54 The 2005 Judgment ruled that Uganda was an occupying Power in Ituri
from 18 June 1999 onwards,405 and that Uganda was responsible for its “lack of
vigilance in preventing violations of human rights and international humanitarian
402 Ibid., para. 158.
403 See U.N. Mapping Report, para. 381, Annex 25.
404 DRCM, paras. 2.51, 2.53.
405 Armed Activities (2005), para. 175.
132
law by other actors present in the occupied territory, including rebel groups acting
on their own account”.406
4.55 As stated, the causal nexus between a wrongful omission and an injury
“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 [harm] would in
fact have been averted if the Respondent had acted in compliance with its legal
obligations”.407 It therefore falls to the DRC to establish to a high level of certainty
that the injuries inflicted by other actors in Ituri would in fact have been averted if
Uganda had acted in compliance with its obligation “to protect the inhabitants of
the occupied territory against acts of violence”.408 The DRC Memorial not only
fails to meet this burden, it does not even attempt to do so.
4.56 Moreover, in light of: (1) the size of Ituri (65,658 km², roughly the size of
Sri Lanka and more than twice the size of Belgium); (2) its population (between
3.3 and 5.5 million inhabitants scattered in remote villages and divided between 18
ethnic groups);409 (3) the density of the equatorial forest that covers most of the
landscape; (4) the long-standing ethnic conflict between the Lendu and Hema tribes
(which the DRC government itself cannot stop to this day)410; (5) the cruel group
406 Ibid., para. 179.
407 Bosnia and Herzegovina v. Serbia and Montenegro (2007), para. 462.
408 Armed Activities (2005), para. 178.
409 See DRCM, para. 3.04 quoting to U.N. Security Council, Special Report on the events in Ituri,
January 2002- December 2003, U.N. Doc. S/2004/573 (16 July 2004). DRCM, Annex 1.6.
410 Laurent Oussou, M.O.N.U.S.C.O., La Force de la MONUSCO Invite les Communautés en Ituri
à Dialoguer pour la Paix, available at https://monusco.unmissions.org/la-force-de-la-monuscoinvite-
les-communaut%C3%A9s-en-ituri-%C3%A0-dialoguer-pour-la-paix (11 Aug. 2017), p. 2,
Annex 100; U.N. Office for the Coordination of Humanitarian Affairs, DR Congo: Weekly
Humanitarian Update (19-23 June 2017), available at https://reliefweb.int/report/democraticrepublic-
congo/dr-congo-weekly-humanitarian-update-19-23-june-2017 (23 June 2017), Annex
30; U.N. Security Council, 7998th Meeting, Security Council Members Stress Need for
133
culture prevailing within armed militias like the Mai-Mai; and (6) the modest size
of the Ugandan deployment during the conflict (“10,000 soldiers ‘at the height of
the deployment’”411), Uganda could not possibly have prevented all the claimed
injuries caused by other actors in Ituri. Even if it entirely fulfilled its obligation of
due diligence, Uganda was not and could not have been omnipresent in Ituri.
4.57 The fact that the Court previously made a general determination that
Uganda failed to comply with its obligations of vigilance and prevention as an
occupying Power does not relieve the DRC of its burden at this stage to prove
specific harms inflicted by other actors in Ituri, prove specific measures that
Uganda failed to take as an occupying Power, and prove the causal nexus between
such omissions and the harms. The DRC Memorial fails to establish any of these
elements (or the valuation of the harm).
4. Uganda’s Violations of Use of Force and Non-intervention Norms
4.58 The DRC contends that Uganda’s violations of the principles relating to the
use of force and non-intervention make it responsible for everything that happened
in the DRC after Uganda’s intervention began. Uganda disagrees and considers that
the Court should follow the EECC’s approach and “determine what injury was
proximately caused by [Uganda’s] delict, informed by judgments regarding the
consequences that should have been reasonably foreseeable to [Uganda’s] military
and civilian leaders at the time of its unlawful action”.412 In making that
determination, the EECC made clear that it did “not believe that a State’s
international responsibility in a case such as this extends to all of the losses and
Democratic Republic of Congo to Hold Fair, Free, Inclusive Elections without Further Delay,
U.N. Doc. SC/12907 (11 July 2017), Annex 32.
411 Armed Activities (2005), para. 170.
412 Ethiopia’s Damages (Final Award, 2009), para. 284.
134
disruptions accompanying an international conflict. A breach of the jus ad bellum
by a State does not create liability for all that comes after. Instead, there must be a
sufficient causal connection”.413
4.59 The Court must therefore determine whether the DRC has presented
evidence that allows it to “weigh whether particular consequences were, or should
have been foreseen by [Uganda’s] leaders in the exercise of reasonable judgment
at the time of” Uganda’s delict, recognising that “if a party is deemed to foresee
too wide a range of possible results of its action, reaching too far into the future, or
too far from the battlefield, foreseeability loses its meaning as a tool to assess
proximate cause”.414 The DRC has failed to present evidence that meets this
standard.
4.60 Like its claims concerning Uganda’s support for certain rebel groups, this
aspect of the DRC’s claims invariably relies upon the generalised assertion that
“but for” Uganda’s use of force and intervention, exceptionally broad and
variegated harms across a wide swath of the DRC and occurring over a period of
several years would not have occurred. Such an approach does not allow the Court
to connect Uganda’s violations to any particular harms on the basis that the latter
were, or should have been, foreseen by Uganda’s leaders in the exercise of
reasonable judgment at the time of Uganda’s actions.
4.61 The single most significant aspect of the DRC’s claims that rests solely on
the violation of use of force and non-intervention norms is its claim for
macroeconomic damages. That claim is discussed in detail in Chapter 9. For
present purposes, Uganda notes that the EECC declined to award compensation for
413 Ibid., para. 289.
414 Ibid., para. 290
135
macro-economic damages allegedly resulting from a jus ad bellum violation,
observing: “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”.415
II. The DRC Essentially Asks the Court to Decide the Issue of Compensation
Ex Aequo et Bono, Which It Cannot Do
4.62 Rather than try to make the evidentiary showings required of it by the 2005
Judgment and international law more generally, the DRC resorts to highly
subjective methodologies that can only be viewed as, in effect, requesting the Court
to decide this case ex aequo et bono. But the Court is, of course, precluded from
doing so unless both Parties agree.
A. THE DRC DISREGARDS INTERNATIONAL LAW REGARDING REPARATIONS
FOR INTER-STATE CLAIMS
4.63 The DRC portrays its methodology for assessing compensation as based on
traditional rules of State responsibility,416 such as those reflected in the ILC
Articles on State Responsibility. Nothing could be further from the truth.
4.64 A telling example of the extent to which the DRC abandons the law in its
Memorial is its claims relating to harm caused by rebel groups supported by
Uganda. As discussed, the conduct of the rebel groups cannot be attributed to
Uganda unless the well-established “effective control test”, consistently
415 Ibid., para. 286.
416 DRCM, para. 1.18.
136
maintained by the Court,417 has been met. Had the DRC truly based its claims on
the law—rather than its subjective belief as to what is reasonable, equitable or
just—it would at least have tried to demonstrate the specific harms inflicted by
specific rebel groups “acting on the instructions of, or under the direction or control
of, [Uganda] in carrying out the conduct”.418 But it makes no such effort. To the
contrary, it simply asserts that Uganda must pay compensation for all damage
caused by those groups because “such damage is the logical result of that illicit
support, such that it could not have been caused without such support”.419
4.65 The DRC also deviates from the law when it invites the Court to determine
a total amount for compensation, such as a “lump sum” amount, that has no direct
relationship to the actual harm suffered.420 The DRC attempts to justify this
proposition based on the complexity of the case and the multitude of internationally
wrongful acts.421 Referring to its Memorial on the merits, the DRC contends that a
lump sum payment is “both necessary and desirable”.422 The DRC’s use of the
word “desirable” (“souhaitable”) is telling and confirms the non-legal character of
the DRC’s approach.
417 Nicaragua v. United States of America (Merits, 1986), para. 115; Bosnia and Herzegovina v.
Serbia and Montenegro (2007), para. 406.
418 “Report of the Commission to the General Assembly on the work of its fifty-third session”, in
Yearbook of the International Law Commission, Vol. II, Part 2, Doc No.
A/CN.4/SER/A/2001/Add.1 (2001), Art. 8.
419 DRCM, para. 1.24 (Translation by Counsel, original in French: “ces dommages découlent
logiquement de ce soutien illicite, en ce sens qu’ils n’auraient pas pu être causés sans ce soutien”.).
420 Ibid., para. 1.11 (Translation by Counsel, original in French: “rien n’interdit à la Cour de fixer
une somme globale”.). See also ibid., para. 1.18.
421 Ibid., para. 1.11 (Translation by Counsel, original in French: “nécessaire et souhaitable”).
422 Ibid.
137
4.66 Likewise, the DRC asserts that “in its assessment of the compensation of
damage caused to persons following the breaches of international law for which
Uganda was responsible on Congolese territory between 1998 and 2003, the DRC
was also largely guided by the guidelines given by the United Nations General
Assembly in 2005”,423 relating to the Basic Principles and Guidelines on the Right
to a Remedy and Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International Humanitarian Law
(“Basic Principles and Guidelines”).424 Here, too, however, the reference does not
go beyond lip service.
4.67 It should first be noted that the Basic Principles and Guidelines are
specifically addressed to States for national implementation. They do not purport
to be articulating legal standards to be applied by international courts or tribunals.
By their terms, they
“Recommend[] that States take the Basic Principles
and Guidelines into account, promote respect thereof
and bring them to the attention of members of the
executive bodies of government, in particular law
enforcement officials and military and security
forces, legislative bodies, the judiciary, victims and
their representatives, human rights defenders and
lawyers, the media and the public in general”.425
423 DRCM, para. 7.05 (Translation by Counsel, original in French: “dans son évaluation de
l’indemnisation des dommages causés aux personnes à la suite des violations du droit international
dont l’Ouganda s’est rendu responsable sur le territoire du Congo entre 1998 et 2003, la RDC a
également été largement guidée par les lignes dégagées par l’Assemblée générale des Nations Unies
en 2005”).
424 U.N. General Assembly, Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law, U.N. Doc. A/RES/60/147 (21 Mar. 2006), Annex
21.
425 Ibid.
138
4.68 More importantly, the Basic Principles and Guidelines clearly require an
approach to reparation that is case-specific and grounded in the application of
traditional legal rules concerning claims, not in abstract concepts of justice, let
alone ex aequo et bono. This is clearly signalled in its Preamble:
“Emphasizing that the Basic Principles and
Guidelines contained herein do not entail new
international or domestic legal obligations but
identify mechanisms, modalities, procedures and
methods for the implementation of existing legal
obligations under international human rights law and
international humanitarian law which are
complementary though different as to their
norms”.426
Thus, the Basic Principles and Guidelines were conceived as a recapitulation of
legal obligations and implementation mechanisms for States to pursue on the right
to a remedy and reparation for victims of specific international obligations.
4.69 The case-specific focus of the Basic Principles and Guidelines is equally
clear:
“In accordance with domestic law and international
law, and taking account of individual circumstances,
victims of gross violations of international human
rights law and serious violations of international
humanitarian law should, as appropriate and
proportional to the gravity of the violation and the
circumstances of each case, be provided with full
and effective reparation, as laid out in principles 19
to 23, which include the following forms: restitution,
compensation, rehabilitation, satisfaction and
426 Ibid., note 78, Preamble, para. 7 (emphasis added).
139
guarantees of non-repetition”.427
4.70 Likewise, with regard to compensation, the Basic Principles and
Guidelines insist on the fact that it “should be provided for any economically
assessable damage, as appropriate and proportional to the gravity of the violation
and the circumstances of each case”.428
4.71 This is not the approach the DRC takes. In dealing with the harm caused to
persons, for example, the DRC admits that, because of the “impossibility” of
establishing the specifics relating to each victim, it has been “compelled to assess
the amount of compensation due for each category of damage caused to persons on
a lump-sum basis, which aims to cover all the elements of injury identified by the
General Assembly in the abovementioned Principles”.429
4.72 Thus, while purporting to respect the Basic Principles and Guidelines, the
DRC actually goes down a different path. First, as discussed in the next subsection,
the DRC seemingly pulls estimates out of thin air as to the number of
persons affected, an approach that entirely fails to identify victims with any level
of specificity.
4.73 Second, rather than consider anything specific to those persons
(approximate number of adults versus number of children, approximate life
expectancy, approximate income, etc.), the DRC simply adopts an amount of
compensation per person based on the compensation it says (but does not prove) is
427 Ibid., para. 18 (emphasis added).
428 Ibid., para. 20 (emphasis added).
429 DRCM, para. 7.07 (Translation by Counsel, original in French: “amenée à chiffrer le montant
des indemnisations dues pour chaque catégorie de dommages causés aux personnes sur une base
forfaitaire, laquelle a vocation à couvrir l’ensemble des éléments de préjudice identifiés par
l’Assemblée générale dans les Principes susmentionnés”.).
140
awarded by DRC national courts in similar circumstances. The DRC says, for
example, that for harm inflicted by acts of deliberate violence directed against civil
populations, compensation should be based “on the jurisprudence of Congolese
courts that had judged and sentenced those responsible for serious violations of
human rights and international humanitarian law in eastern Congo”.430
4.74 Those national court decisions, however, typically did not take into account
individual circumstances of the case. In a Judgment 18 February 2007 of the High
Court of Kinshasa/Kalumu (uncovered by Uganda but not produced by the DRC),
for example, the Court issued a decision requiring the DRC to pay an entire class
of plaintiffs the following fixed amounts of compensation: US$ 200 for the victim
of assault and battery; US$ 500 for the victims of extortion; US$ 600 for the victims
of looting; US$ 2,000 for the victims of arbitrary arrest, illegal detention and
torture; US$ 5,000 for the victims of rape; and US$ 30,000 for the deceased victim
of rape.431
4.75 In fact, the DRC national court decisions often do not even differentiate
among types of harm, be it material or non-material; they simply award a number
without regard to the specific conduct by the perpetrator or the specific injuries of
the victims. Thus, in the Kakado case, which involved multiple crimes (including
murder, rape, looting and damage to property, as well as leading an insurrectional
movement), the defendant was condemned to pay US$ 2,000,000 “for
430 DRCM, para. 7.08 (Translation by Counsel, original in French: “sur la jurisprudence des
juridictions congolaises qui ont été amenées à juger et à condamner les responsables de violations
graves des droits de l’homme et du droit international humanitaire dans l’est du Congo”.).
431 Waka-Lifumba (MP et PC. c. Botuli), RP 134/2007 (Tribunal Militaire de Garnison de
Mbandaka, 18 Feb. 2007), Annex 44. For another similar example, see also Maniraguha et
Sibomana (MP et PC (400) c. Jean Bosco Maniraguha alias Kazungu et consorts), RP 275/09,
521/10 RMP 581/07 and 1573/KMC/10 (Tribunal Militaire de Garnison de Bukavu, 16 Aug. 2011),
Annex 47.
141
compensation for the damages suffered”,432 an approach that lumped all types of
harm, material and non-material, together under one single, all-encompassing
category.
4.76 Such general, undifferentiated schemes for compensation are inconsistent
with the central rule of the Basic Principles and Guidelines, according to which the
reparation must be calculated in view of “the circumstances of each case”. Of
course, the same amount of moral damages for a particular type of injury might be
awarded across a class of similarly-situated individuals, but amounts for material
harm that fail to differentiate among victims defy the requirements of the Basic
Principles and Guidelines, and are inconsistent with traditional rules of
international law regarding compensation for harm.
4.77 Others have analysed DRC court decisions and concluded that they do not
result from the application of traditional legal rules, and certainly not of the kind
found in either the rules on State responsibility or the Basic Principles and
Guidelines. For example, in a 2014 report on these national court decisions, the
well-known NGO Lawyers without Borders (Avocats sans frontières) stressed “the
absence of transparency in the compensation of victims of bodily harm,” 433 and
the lack of specific criteria in the assessment of bodily harm, on the one hand, and
the attribution of compensation for all damages combined, on the other hand.434
432 Kakado (MP et PC c. Kakado Barnaba), RP 071/09, 009/010 and RP 074/010 (Tribunal Militaire
de Garnison de Bunia, 9 July 2010), p. 174, Annex 46 (Translation by Counsel, original in French:
“au titre du dédommagement pour tout préjudice subi”.). The same formulation can also be found
in: Basele et consorts (MP et PC c. Basele Lutula alias Colonel Thom’s et consorts), RP 167/09
and RMP 944/MBM/09 (Tribunal Militaire de Garnison de Kisangani, 3 June 2009), Annex 45.
433 Martin Ekofo Inganya, Avocats sans frontières, La réparation des crimes internationaux en droit
congolais (2014), p. 77 (Translation by Counsel, original in French: “Absence de transparence dans
l’indemnisation des victimes de dommages corporels”.), Annex 67.
434 Ibid., p. 79.
142
Concerning the absence of specific criteria, the report gives the example of a case
in which the tribunal indiscriminately granted US$ 15,000 to any rights-holder of
a deceased victim without taking any specifics into consideration.435
4.78 Likewise, a report on the judicial response to sexual abuses in the period
2010-2011 published by the DRC’s Ministry of Justice and Human Rights, stressed
that a number of DRC national court decisions do not indicate the basis for their
assessment of the reparation due to the victims and “have recourse to equity for
damages that can be assessed in an objective way”.436 Moreover, the report stated:
“The judge gives the impression that any victim categorised following the
infraction has suffered the same harm, which does not yet seem obvious”.437
4.79 Given this indiscriminate approach, it comes as no surprise that DRC
national courts at times expressly characterise what they are doing as deciding the
case, in whole or in part, ex aequo et bono. In a 2010 judgment in the Kakado
case,438 for example, the Bunia Military Tribunal expressly stated that it was
deciding the case ex aequo et bono when ordering the defendant to pay US$2
million to twelve victims.439 The same express reliance on ex aequo et bono
435 Ibid.
436 Ministère de la Justice et des Droits Humains, République Démocratique du Congo, & PNUD,
Monitoring judiciaire 2010-2011, Rapport sur les données relatives à la réponse judiciaire aux cas
de violences sexuelles à l’Est de la République démocratique du Congo, p. 55 (emphasis added)
(Translation by Counsel, original in French: “recourent à l’équité alors qu’il s’agit de dommages
qui peuvent être évalués de manière objective”.), Annex 65.
437 Ibid., p. 56. (Translation by Counsel, original in French: “Le juge donne l’impression que toutes
les victimes catégorisées suivant les infractions dont elles ont été victimes ont subi un même
préjudice, ce qui ne semble pourtant pas évident”.).
438 Kakado (MP et PC c. Kakado Barnaba), RP 071/09, 009/010 and RP 074/010 (Tribunal Militaire
de Garnison de Bunia, 9 July 2010), p. 174, Annex 46. The Judgment reads: “En conséquence, le
Tribunal condamne, ex aequo et bono, seul, le prévenu KAKADO BARNABA YONGA TSHOPENA
à payer au titre du dédommagement pour tout préjudice subi comme suit”.
439 Ibid.
143
grounded the 2006 decision of Mbandaka’s Military Tribunal in the Songo Mboyo
case, which involved rape and death resulting from rape,440 and the 2012 decision
of Bukavu’s Military Tribunal in the Mupoke case, which involved murder,
injuries, rape and looting.441
4.80 Reliance on ex aequo et bono is not unique to DRC military tribunals. For
example, the High Court of Kalamu expressly refers to ex aequo et bono on three
occasions in the course of its decision in the Kambanguistes case, concerning
compensation for damages to the property of the Church.442
4.81 In a 2013 report on compensation awarded by DRC courts to the victims of
sexual violence, the International Federation for Human Rights (“FIDH”, by its
French acronym) noted:
“The Congolese magistrates do not assess individual
harm to determine the amount of compensation to be
paid to the victims of sexual violence and the amount
ordered is rarely justified. As a matter of fact, judges
usually decide ‘ex aequo et bono’. Hence, for
instance, judges can decide to grant 10000 dollars for
deceased victims of rape and 5000 dollars for the
survivor victims of rape, without justifying the
440 Songo Mboyo (MP et PC c. Bokila et consorts), RP 084/2005 (Tribunal Militaire de Garnison de
Mbandaka, 12 Apr. 2006) Annex 43. The appeal Judgment confirmed the conviction and increased
the amounts of compensation. Songo Mboyo (MP et PC c. Bokila et consorts), RPA 014/2006 (Cour
Militaire de l’Équateur, 7 June 2006), cited in Martin Ekofo Inganya, Avocats sans Frontières, La
réparation des crimes internationaux en droit congolais (Dec. 2014), pp. 82-83, Annex 67.
441 Mupoke, also known as Kabala et consorts (MP et 107 PC c. Kabala Mandumba et consorts;
MP et PC c. Kabala Mandumba), RP 708/12 (Tribunal Militaire de Garnison de Bukavu, 15 Oct.
2012), p. 222: “Le Tribunal, comme leurs conseils, estimera leurs dommages-intérêts ex aequo et
bono”, Annex 49.
442 Kimbanguistes (MP et PC Kumba et consorts- MP et PC c. Mputu Muteba et consorts, RP
11.154/11.155/ 11.156 (Tribunal de Grande Instance de Kinshasa/ Kalamu, 17 Dec. 2011), Annex
48.
144
amount nor assessing possible damages for each
victim”.443
4.82 The DRC’s reliance on its national court decisions relating to the award of
compensation is thus effectively an admission that it is asking this Court, like DRC
courts, to decide this case ex aequo et bono.
4.83 The DRC’s reliance on its national court decisions is dubious for a further
reason: there is no evidence that the compensation nominally awarded in those
decisions was ever paid. Although the DRC itself was a defendant in many of the
cases and, as sovereign, was in a position to enforce judicial decisions against
individual respondents in others, the FIDH report notes:
“If the criminal proceedings lead to a conviction, the
judge can order financial compensation measures,
which will have to be paid to the victim by the
convicted individual, by the State, or by both. But a
judgment ordering financial compensation measures
is only the beginning of a new and long fight, still
vain so far, to actually obtain the due compensation.
To date, none of the decisions ordering financial
compensation measure has been enforced. The
FIDH has not met a single victim of sexual violence
who has received the compensation ordered by the
judge”.444
443 Fédération internationale des ligues des droits de l’homme, Les Victimes de Crimes Sexuels
Obtiennent Rarement Justice et Jamais Réparation: Changer la Donne Pour Combattre l'impunité
(Oct. 2013), p. 61 (Translation by Counsel, original in French: “Les magistrats congolais n’évaluent
pas les dommages individuels pour déterminer le montant de l’indemnité à verser aux victimes de
violences sexuelles, et le montant alloué est rarement justifié. En ce sens, les juges décident
généralement ‘ex aequo et bono’. Ainsi, par exemple, des juges peuvent décider d’attribuer 10 000
dollars pour les victimes de viol décédées et 5 000 dollars pour les victimes survivantes de viol,
sans justifier le montant ni évaluer les dommages possibles pour chaque victime”.).
444 Fédération internationale des ligues des droits de l’homme, Les Victimes de Crimes Sexuels
Obtiennent Rarement Justice et Jamais Réparation: Changer la Donne Pour Combattre l'impunité
(Oct. 2013), p. 59 (emphasis added) (Translation by Counsel, original in French: “Si la procédure
pénale aboutit à une condamnation, le juge peut ordonner des réparations financières, qui devront
145
4.84 A March 2017 report by Impunity Watch confirms that virtually all victims
who have been awarded damages by Congolese courts and tribunals are still
awaiting to be paid. Given that the great majority of the convicted are insolvent,
effective compensation depends almost exclusively on the willingness and the
ability of the DRC to pay (in cases when the State was indeed condemned in
solidum). 445 To date, only the victims of the Songo Mboyo case have been
effectively compensated by the State, although the significance of this exception is
minimised by the fact that the payment was made more than eight years after the
tribunal’s decision.446
B. THE DRC’S CLAIMS SYSTEMATICALLY RELY ON UNEXPLAINED PERCENTAGES, DISCOUNTS OR MULTIPLIERS THAT ARE ASSERTED TO BE “REASONABLE” OR “EQUITABLE”
4.85 Rather than base its claims on international law rules regarding reparation
for inter-State claims, the DRC develops its own subjective methodologies that
deviate so far from standard practices that they effectively invite the Court to issue
a decision ex aequo et bono.
4.86 One aspect of this is the use of unexplained percentages as discounts or
multipliers that have no basis in law. In the context of its claim concerning deaths,
for example, the DRC states that it “believes that it is reasonable to consider that
Uganda may be required to remedy only 45% of the damages … caused by both
the wrongful behaviour of Uganda and by other States and groups that were not
être versées à la victime soit par l’individu condamné, soit par l’Etat, soit par les deux. Mais un
jugement ordonnant des réparations ne représente que le début d’un nouveau et long combat, resté
vain jusqu’ici, pour obtenir effectivement la réparation due”.).
445 Gentil Kasongo Safari, Impunity Watch, “Justice Transitionelle en République Démocratique du
Congo: Avancées, Obstacles… et Opportunités”, Great Lake Dispatches, No. 5 (Mar. 2017), p. 39.
446 Ibid.
146
supported by Uganda”.447 Similarly, concerning the exploitation of the DRC’s
natural resources, and specifically the losses of animal species in Garamba National
Park, the DRC asserts that “it is reasonable and fair to estimate that 50% of this
total damage was caused by the unlawful acts of Uganda”.448
4.87 Another aspect of the DRC’s subjective methodology, which often operates
in conjunction with the unexplained percentages (as may also be seen in the
examples cited above) arises from its repeated effort to assert that certain estimates
or amounts are “reasonable”, “fair” or “equitable”. Reasonability and equity, of
course, play a role in the context of legal reasoning when invoked and applied
within the confines of the law (infra legum), notably when quantifying a nonmaterial
injury after it has been duly established.449 But such concepts cannot be
invoked or applied so as to operate outside the law (praetor legum), the manner in
which the DRC does so in its Memorial.
4.88 Thus, with respect to compensation for deaths, for example, the DRC states
that it “believes it is reasonable, in this context, to build on a minimum estimate of
400,000 victims, one tenth the IRC’s figure that is the result of studies published
in scientific journals of the highest calibre, including The Lancet”.450 Then, after
447 DRCM, para. 1.24 (emphasis added) (Translation by Counsel, original in French: “estime
raisonnable de considérer que l’Ouganda ne peut être tenu de réparer que 45% des dommages
correspondant à cette dernière catégorie… causés à la fois par le comportement illicite de l’Ouganda
et par celui d’autres Etats ou de groupes qui n’ont pas été soutenus par l’Ouganda”.).
448 Ibid., para. 5.167 (emphasis added) (Translation by Counsel, original in French: “il est
raisonnable et équitable de considérer que 50% de ce préjudice total a été causé par les faits illicites
de l’Ouganda”.).
449 Diallo (2012), para. 24 (“Quantification of compensation for non-material injury necessarily
rests on equitable considerations”.). A contrario, the quantification of material injury may not rest
on equitable considerations, but only on duly established factual elements.
450 DRCM, para. 2.70 (emphasis added) (Translation by Counsel, original in French: “estime
raisonnable, dans le présent contexte, de tabler sur une estimation minimale de 400.000 victimes,
147
applying the so-called “reasonable” 45% discount, the DRC puts forward the
number of “180,000 deaths that can be reasonably considered a consequence of
the invasion of a substantial portion of Congolese territory by Uganda”.451
4.89 With respect to its nominal estimate of the number of rapes, the DRC says
“it may reasonably be believed that the actual number of rapes for which Uganda
is responsible in the regions in question in this chapter is a number five times higher
than those that were declared, i.e., 60 cases”.452
4.90 And with respect to the number of child soldiers allegedly recruited and
trained by Uganda:
“Even if it is, here again, very difficult to quantify
exactly the scale of the phenomenon of child soldiers
during the conflict in Ituri, the data summarized
above seem to provide reasonable bases for such an
assessment. The Democratic Republic of the Congo,
therefore, estimates the number of child soldiers
recruited and trained by the various actors in the
conflict in Ituri from 2000 to 2003 to be 2,500. It is
this figure that shall be used as the basis for its claim
for reparation submitted for this category of damages
within these proceedings”. 453
soit 10 fois moins que le chiffre de l’IRC qui résulte d’études publiées dans les revues scientifiques
les plus renommées, spécialement The Lancet”.) See also ibid., para. 3.23.
451 Ibid., para. 2.71 (emphasis added) (Translation by Counsel, original in French: “180.000 décès
dont on peut raisonnablement considérer qu’ils sont une conséquence de l’invasion d’une partie
substantielle du territoire congolais par l’Ouganda”.).
452 Ibid., para. 2.79 (emphasis added) (Translation by Counsel, original in French: “on peut
raisonnablement estimer que le nombre réel de viols dont l’Ouganda est responsable dans les
régions dont il est question dans le présent chapitre se monte à un nombre cinq fois plus élevé que
ceux qui ont été déclarés, soit 60 cas”.).
453 Ibid., para. 3.36 (emphasis added) (Translation by Counsel, original in French: “Même s’il est,
ici encore, très difficile de quantifier exactement l’ampleur du phénomène des enfants soldats durant
le conflit en Ituri, les données reprises ci-dessus paraissent fournir des bases raisonnables pour une
148
4.91 Similar uses of “reasonable” or “equitable” estimates may be found with
respect to the number of health centres and hospitals allegedly damaged,454
administrative buildings allegedly destroyed455 and other harm.456 This heavy
reliance on such concepts praetor legum is especially apparent in Chapter 7 of the
DRC Memorial, where it systematically grasps for such standards in explaining
why its subjective calculations, untethered to evidence, should be accepted for
losses of human lives,457 injuries and mutilations,458 sexual abuses,459 enrolment
and use of child soldiers,460 and displaced persons.461
4.92 One can certainly challenge whether the use of such percentages or
estimates is in fact “reasonable”. There is nothing reasonable in applying the same
percentage indiscriminately to a broad category of harms with no distinctions as to
place, time or manner. In any event, the critical point is that the DRC’s
methodology is plainly not grounded in the law.
4.93 To the contrary, it substitutes reasoning that can only be regarded as ex
aequo et bono for reasoning based on the rules of international law relating to State
responsibility. The well-settled law of inter-State claims does not allow the use of
telle évaluation. La République démocratique du Congo estime donc sur cette base que le nombre
d’enfants soldats recrutés et entraînés par les différents protagonistes du conflit en Ituri entre 2000
et 2003 se monte à 2.500. C’est ce chiffre qui sera donc retenu comme base de sa demande de
réparation pour cette catégorie de dommages dans le cadre de la présente procédure”.).
454 Ibid., para. 3.45(b).
455 Ibid., para. 3.45(c).
456 See, e.g., ibid., paras. 4.28, 4.29, 4.43.
457 Ibid., para. 7.12.
458 Ibid., para. 7.17.
459 Ibid., para. 7.24.
460 Ibid., para. 7.27.
461 Ibid., para. 7.31.
149
crude figures and guesswork affixed with the labels “reasonable” or “equitable”.
Rather, it requires reliance on facts that establish specificity, proximity and
discrimination with respect to victims, perpetrators and harm, none of which the
DRC does.
C. THE COURT LACKS POWER TO DECIDE THIS CASE EX AEQUO ET BONO
4.94 As is well known, paragraph 2 of Article 38 of the Statute confers upon the
Court the power to decide a case ex aequo et bono if―and only if―the parties
agree. In such cases, the Court “acts in this capacity at the express wish of the
parties”.462
4.95 The Court has repeatedly underscored that in the absence of an express
request from the parties, it cannot decide ex aequo et bono and is bound to apply
international law.463 The following quotations are just some examples:
“[S]uch power [to decide ex aequo et bono], which
would be of an absolutely exceptional character,
could only be derived from a clear and explicit
provision to that effect”;464
462 Hersch Lauterpacht, THE FUNCTION OF LAW IN THE INTERNATIONAL COMMUNITY (2011), p. 325.
463 See, e.g., A. Pellet, “Article 38” in THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE (A.
Zimmerman et al. eds., 2012), p. 731; Leon Trakman, “Ex Aequo et Bono: Demystifying and
Ancient Concept”, Chicago Journal of International Law, Vol. 8, No. 2 (2008), p. 625. See also
Case Concerning the Continental Shelf (Tunisian/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab
Jamahiriya), Judgment, I.C.J. Reports 1982 , p. 157. See also ibid., p. 161.
464 Case of the free zones of Upper Savoy and the District of Gex (Second Phase), Order, 1930,
P.C.I.J. Series A, No. 24, p. 10. The absolute character of this requirement has equally been stressed
by arbitral tribunals. See, e.g., Cases of Dual Nationality —Decision No. 22, 14 RIAA 27 (8 May
1954), p. 33 (“It is only in default of rules of law which are applicable that it can make laws ex
aequo et bono. But, this is not the case. It must be said that it is within the jurisdiction of the doctrine
and the decisions of the Court that the application of the general principles does not exceed the
limits of positive right; in applying them the judge does not become free to decide ex aequo et bono.
This arises from the fact that Article 38 of the Statute demands a formal agreement between the
Parties, if the Court wishes to have the faculty to decide according to the principles of justice and
150
“The Court can take … a decision [ex aequo et bono]
only on condition that the Parties agree (Art. 38,
para. 2 of the Statute), and the Court is then freed
from the strict application of legal rules in order to
bring about an appropriate settlement”;465
“The Chamber is however bound by its Statute, and
required by the Parties, not to take a decision ex
aequo et bono, but to achieve a result on the basis of
law”;466
“It is clear that the Chamber cannot decide ex aequo
et bono in this case. Since the Parties have not
entrusted it with the task of carrying out an
adjustment of their respective interests, it must also
dismiss any possibility of resorting to equity contra
legem”;467
“This reference [in the Special Agreement] to the
rules of international law and to the ‘first paragraph’
of Article 38 obviously excludes the possibility of
any decision ex aequo et bono”.468
4.96 The DRC Memorial tries to make it seem that Uganda has agreed to the
application of the principles of “reasonableness” and “equity” by invoking the
equity”.). See also Arbitral award relating to the question of the boundaries between Brazil and
French Guyana, 28 RIAA 349 (1 Dec. 1900), p. 357.
465 Case Concerning the Continental Shelf (Tunisian/Libyan Arab Jamahiriya) (Tunisia v. Libyan
Arab Jamahiriya), Judgment, Dissenting Opinion of Judge Oda, I.C.J. Reports 1982, para. 71. See
also South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase,
Judgment, I.C.J. Reports 1966, para. 90; Case Concerning the Continental Shelf (Libyan Arab
Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, para. 45.
466 Case Concerning Delimitation of the Maritime Boundary in the Gulf Maine Area (Canada/
United States of America), Judgment, I.C.J. Reports 1984, para. 59.
467 Case Concerning the Frontier Dispute (Burkina Faso/ Republic of Mali), Judgment, I.C.J.
Reports 1986, para. 28.
468 Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras),
Judgment, I.C.J. Reports 1992, para. 47.
151
DRC’s pleadings on the merits and the legal principles nominally espoused
therein.469 It contends:
“Uganda has never, in the context of this proceeding,
questioned these legal principles. It could even be
said that it has implicitly accepted them in light of its
tacit acquiescence, whereas the DRC has expressed
and restated its position in its memorial and reply,
and in its conclusions as well”. 470
4.97 This is wishful thinking. Uganda never agreed to apply principles of
reparation that depart from the law. On the contrary, in 2002 Uganda clearly
rejected the DRC’s views on compensation, noting that there was “a fundamental
confusion in the Memorial between the proof of violations of legal obligations and
the issue of quantum of damage (or compensation)”.471 Uganda still rejects such
views. There is no agreement between the Parties that the Court may apply the
extra-legal principles the DRC advocates.
4.98 The DRC Memorial prudently avoids mention of Article 38, paragraph 2 of
the Statute. But that does not change the reality that the DRC is effectively inviting
the Court to decide the issue of reparation ex aequo et bono. Its reliance on arbitrary
percentages, discounts and multipliers, the many references to “reasonable” or
“equitable” considerations as justifications and the heavy reliance on DRC national
court decisions that are themselves issued ex aequo et bono, all point to an effort
469 Reply of the Democratic Republic of the Congo, (29 May 2002), paras. 1.59.-1.60; DRCM, para.
1.18.
470 DRCM, para. 1.23 (Translation by Counsel, original in French: “l’Ouganda n’a, dans le cadre de
la présente procédure, jamais remis en cause ces principes juridiques. On pourrait même considérer
qu’il les a implicitement acceptés au vu de son silence circonstancié, la RDC exprimant et réitérant
au contraire sa position dans le corps de son mémoire et de sa réplique, ainsi d’ailleurs que dans ses
conclusions”.).
471 Rejoinder submitted by the Republic of Uganda, (6 Dec. 2002), in Armed Activities (2005), paras.
30-31.
152
to extract a decision ex aequo et bono. The very fact that the DRC tries (and fails)
to prove the existence of an agreement with Uganda on the principles to be applied
demonstrates that the DRC knows that, in substance, it is asking the Court to decide
this case in a manner antithetical to the rule of law.
III. The DRC Essentially Asks the Court to Award Punitive Damages,
Which It Also Cannot Do
4.99 The DRC’s claims are so poorly grounded in evidence and law that they
must be deemed a prayer to award damages ex aequo et bono. Alternatively, the
DRC’s claims might equally be viewed as a request for the Court to award punitive
damages against Uganda. Rather than prove compensatory damages for injury
actually incurred, the DRC seems to be asking the Court to punish Uganda for the
internationally wrongful acts that were proven at the merits phase.
4.100 There is no legal basis that might entitle the DRC to an award of punitive
damages. It is generally accepted that “punitive damages appear unacceptable in
international law for a variety of theoretical and practical reasons”.472
4.101 First, State practice does not indicate widespread acceptance of a rule of
customary international law in support of punitive damages. Indeed, disputes
settled by States that provide for reparation do not characterise such reparation as
punitive in nature.
472 Stephan Wittich, “Punitive Damages”, in THE LAW OF INTERNATIONAL RESPONSIBILITY (J.
Crawford et al. eds., 2010), p. 668. See also ibid., p. 674 (“In conclusion, it may be stated that, as
practice reveals, there is no clear authority for punitive damages in international law, and this
scarcity of practice evidences that, at present, punitive damages are certainly not a generally
accepted remedy in international law”.). UM Annex 31.
153
4.102 Second, there is no consistency among the major legal systems of the world
in support of a general principle of law permitting the award of punitive damages.
While punitive damages are a feature of some systems of national law (notably in
common law countries), most States (notably civil law countries) do not allow for
punitive damages or severely restrict their availability.
4.103 Third, even if such a principle existed across the legal systems of the world
(quod non), the structure of the international legal system weighs against elevating
such a principle to the international realm. The imposition of punitive damages
upon a State would, among other things, be contrary to the principle of sovereign
equality and the unwillingness to view States as engaging in crimes.
4.104 Fourth, international courts and tribunals, when applying international law,
have not regarded themselves as free to award punitive damages, as is recognised
by most writers.473 In the Lusitania cases, the leading precedent in this respect, the
US-Germany Claims Commission clearly rejected the notion of punitive damages
in international law.474 The following are the most relevant passages:
“In our opinion the words exemplary, vindictive, or
punitive as applied to damages are misnomers. The
fundamental concept of ‘damages’ is satisfaction,
reparation for a loss suffered; a judicially ascertained
compensation for wrong”.475
“That one injured is under the rules of international
law, entitled to be compensated for an injury
473 UM Annex 31, p. 671 (“The majority of writers, therefore, take the more convincing view that
the lack of jurisdiction of courts and tribunals to award punitive damages followed from the
widespread opinion that they are not a suitable remedy in international law”.).
474 Mixed Claims Commission (United States and Germany), 7 RIAA 1 (1 Nov. 1923 - 30 Oct.
1939), pp. 32-44.
475 Ibid., p. 39.
154
inflicted resulting in mental suffering, injury to his
feelings, humiliation, shame, degradation, loss of
social position or injury to his credit or to his
reputation, there can be no doubt, and such
compensation should be commensurate to the injury.
Such damages are very real, and the mere fact that
they are difficult to measure or estimate by money
standards makes them none the less real and affords
no reason why the injured person should not be
compensated therefor as compensatory damages, but
not as a penalty”.476
4.105 The Claims Commission’s rejection of punitive damages referenced, in
part, the sovereignty of States:
“The industry of counsel has failed to point us to any
money award by an international arbitral tribunal
where exemplary, punitive, or vindictive damages
have been assessed against one sovereign nation in
favor of another presenting a claim in behalf of its
nationals”.477
4.106 The same is true of the more contemporary jurisprudence. In Corfu
Channel, for example, this Court recognised the “grave omissions” of Albania478
but nevertheless approached the matter of compensation without reference to
punitive damages. Likewise, decisions concerning serious violations of
international law by other tribunals, such as the International Tribunal for the Law
of the Sea (“excessive [use of] force”)479, the EECC (violation of UN Charter
Article 2(4))480, the Inter-American Court of Human Rights (serious violations of
476 Ibid., p. 40 (emphasis added).
477 Ibid.
478 Corfu Channel (Merits, 1949), p. 23.
479 The M/V “Saiga” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of 1
July 1999, ITLOS Reports 1999, para. 159.
480 Eritrea’s Damages Claims (Final Award, 2009), paras. 271-276 et seq.
155
human rights)481 and the European Court of Human Rights (same)482, have
consistently adhered to the traditional forms of reparation.483 Indeed, there “is not
a single case in contemporary practice in which an international court or tribunal
has awarded punitive damages”.484
4.107 A debate on this point surfaced at the ILC in the course of its work on the
responsibility of States for internationally wrongful acts, a debate that was linked
to the question of whether States could commit crimes. The first Special
Rapporteur, Ambassador F.V. Garcia Amador, had noted that “the existence of
‘damages of a punitive character’ implies the imputation of responsibility of a
criminal nature”.485 As is well known, the de lege ferenda notion of “State crime”
was introduced into the Commission’s work by Professor Roberto Ago and then
developed by Professor Gaetano Arangio-Ruiz who, in spite of the quasiunanimous
case law excluding punitive damages from the reparation due in inter-
State disputes, proposed to include a mention of “nominal or punitive damages” in
481 See, e.g., Case of Velásquez-Rodríguez v. Honduras, Judgment, (IACHR 21 July 1989), Series
C, No. 7 (Compensation), para. 38 (“this principle is not applicable in international law at this
time”.).
482 See, e.g., Case of B.B. v. The United Kingdom (app no. 53760/00), Judgment (ECtHR 10 Feb.
2004), p. 9, para. 36 (“The Court recalls that it does not award aggravated or punitive damages”).
483 Investor-State case law likewise has eschewed the award of punitive damages. See, e.g., CMS
Gas Transmission Company v. The Argentine Republic, ICSID Case No. ARB/01/8, Award (12
May 2005) (Orrego Vicuña, Lalonde, Rezek), para. 404; Ioannis Kardassopoulos and Ron Fuchs
v. Republic of Georgia, ICSID Case Nos. ARB/05/18 and ARB/07/15, Award (3 March 2010)
(Fortier, Orrego Vicuña, Lowe), paras. 508, 513, 655.
484 Stephan Wittich, “Punitive Damages”, in THE LAW OF INTERNATIONAL RESPONSIBILITY (J.
Crawford et al. eds., 2010), p. 671, UM Annex 31. See also Christine Gray, Judicial Remedies in
International Law (1987), p. 28.
485 F. V. Garcia Amador, “International Responsibility”, in Yearbook of the International Law
Commission, Vol. II, Part I, Doc. No. A/CN.4/96 (1956).
156
the draft.486 This proposal was rejected by the ILC which, however, mentioned,
among the possible forms of satisfaction “damages reflecting the gravity of the
infringement”.487
4.108 Eventually, the final rapporteur, Professor James Crawford, asked “whether
penalties or punitive damages can be provided for at least in the case of gross or
egregious breaches” of international law.488 Albeit with some caution, Professor
Crawford seemed ready to reintroduce the idea of “punitive damages” or “damages
reflecting the gravity of the breach”―both expressions being in square
brackets―in his proposed Article 51 on the “Consequences of serious breaches of
obligations to the international community as a whole”.489
4.109 These proposals, however, were discarded by the ILC, and reference to such
damages (along with the notion of “State crime”) was deleted from the final version
of the Commission’s Articles on State Responsibility. In the commentary to the
Articles, the ILC stated unambiguously that “the award of punitive damages is not
recognised in international law even in relation to serious breaches of obligations
arising under peremptory norms”.490
486 G. Arangio-Ruiz, “Second Report on State Responsibility”, in Yearbook of the International Law
Commission, Vol. II, Part I, Doc. No. A/CN.4/425 & Corr.1 and Add.1 & Corr.1 (1989), paras. 139-
147, 191.
487 “2288th meeting Monday, 20 July 1992, at 10 a.m.”, in Yearbook of the International Law
Commission, Vol. I, Summary records of the meetings of the forty-fourth session 4 May-24 July
1992 (1992), para. 5.
488 J. Crawford, “Third report on State responsibility”, in Yearbook of the International Law
Commission, Vol. II, Part I (2000), para. 380.
489 Ibid., para. 412.
490 ARSIWA, Vol. II, Part 2 (2001), Art. 39, cmt. 5. See also James Crawford, James Crawford, The
International Law Commission's Articles on State Responsibility: Introduction, Text and
Commentaries (2002), p. 19 (“punitive damages were omitted, and deliberately so”); ibid., p. 36
(noting “the unwillingness to introduce into the field of State responsibility anything punitive in
157
4.110 As discussed above, and demonstrated further in the remaining chapters of
this Counter-memorial, the DRC’s claims are not grounded in evidence or in law.
To the extent that its claims are best conceived as a request for this Court to award
punitive damages against Uganda, they are inconsistent with international law.
IV. The DRC Cannot Obtain Compensation That Exceeds
the Payment Capacity of Uganda
4.111 Chapter 1 of this Counter-Memorial discussed the extraordinary amount of
“war reparations” the DRC seeks from the Court. The amount the DRC seeks
dwarfs the amount that Uganda spends annually to maintain critical societal
functions, such as education and healthcare. When discussing relevant principles
of international law concerning compensation in its own Memorial491 in this
reparation phase, Uganda noted that such principles preclude requiring a
responsible State to pay compensation that exceeds its financial capacity,
especially if it would cause serious injury to the paying State’s population.492
Compensation must be commensurate with a State’s ability to pay and cannot have
the effect of depriving the people of the responsible State of their means of
character”); James Crawford, State Responsibility: The General Part (2013), p. 526 (“the
overwhelmingly negative reaction to the ILC’s modest proposal for ‘damages reflecting the gravity
of the breach’ shows that the idea of punitive damages under international law is currently
unsustainable”.).
491 UM, paras. 2.55-2.69 et seq.
492 Ethiopia’s Damages Claims (Final Award, 2009), para. 22; Eritrea’s Damages Claims (Final
Award, 2009), para. 22. See also William Bishop, “State Responsibility”, 2 Recueil des Cours 384
(1965), p. 403. Vol. II, UM Annex 22; Richard Falk, “Reparations, International Law, and Global
Justice”, in THE HANDBOOK OF REPARATIONS (P. de Greiff ed., 2006), p. 492. Vol. II, UM 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, UM Annex 30.
158
subsistence.493 The magnitude of the DRC’s claims―totaling some US$ 13.5
billion―is plainly not commensurate with Uganda’s ability to pay and would
inflict serious harm upon Uganda and its people.
4.112 The EECC paid heed to this rule when considering the massive claims
pursued by both countries in that proceeding. Ethiopia claimed nearly US$ 14.3
billion for damages resulting from 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.494
4.113 The EECC 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”.495 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”496 that required limiting
compensation so as to avoid imposing crippling burdens upon the paying State.
According to the Commission:
“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
493 Ethiopia’s Damages Claims (Final Award, 2009), para. 19; Eritrea’s Damages Claims (Final
Award, 2009), para. 19.
494 Ethiopia’s Damages Claims (Final Award, 2009), paras. 18-19; Eritrea’s Damages Claims
(Final Award, 2009), para. 18.
495 Ethiopia’s Damages Claims (Final Award, 2009), para. 18; Eritrea’s Damages Claims (Final
Award, 2009), para. 18.
496 Ethiopia’s Damages Claims (Final Award, 2009), para. 19; Eritrea’s Damages Claims (Final
Award, 2009), para. 19.
159
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
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”.497
“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”.498
4.114 Ethiopia argued that the EECC 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
497 Ethiopia’s Damages Claims (Final Award, 2009), para. 20; Eritrea’s Damages Claims (Final
Award, 2009), para. 20.
498 Ethiopia’s Damages Claims (Final Award, 2009), paras. 19-21; Eritrea’s Damages Claims
(Final Award, 2009), paras. 19-21 (emphasis added).
160
from the paying country—and its citizens needing health care, education, and other
public services—to the recipient country”.499
4.115 Even though Eritrea was found responsible for violating both jus ad bellum
and jus in bello, the EECC 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 seriously to
damage [its] ability to meet its people’s basic needs”.500
4.116 In reaching this conclusion, the EECC gave significant weight to Eritrea’s
ranking among countries in the world in terms of development in the UN Human
Development Report.501 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”.502
4.117 Like Eritrea and Ethiopia, Uganda is a developing country that, while it has
had some success with respect to economic development, still faces serious
challenges in, among other things, reducing poverty, increasing life expectancy and
providing universal education. It is essential to the future of Uganda, the Ugandan
people and Uganda’s relations with its neighbors that any award of compensation
to the DRC not exceed the payment capacity of Uganda or cause serious injury to
Uganda’s population.
499 Ethiopia’s Damages Claims (Final Award, 2009), para. 21; Eritrea’s Damages Claims (Final
Award, 2009), para. 21.
500 Ethiopia’s Damages Claims (Final Award, 2009), para. 313.
501 Ibid., para. 18.
502 Ibid., para. 21; Eritrea’s Damages Claims (Final Award, 2009), para. 21.
161
CHAPTER 5
THE DRC’S CLAIMS RELATING TO LOSS OF LIFE ARE
METHODOLIGICALLY FLAWED AND UNSUPPORTED BY
EVIDENCE
5.1 The DRC seeks US$ 4,045,646,000 in compensation for the deaths of
182,000 persons it alleges were caused by Uganda.503 This compensation,
according to the DRC, covers material injury primarily reflecting the loss of income
to the families of the deceased and moral injury resulting from conditions in which
the nominal alleged acts were perpetrated.504
5.2 The claimed amount is divided between US$ 1.36 billion for 40,000 deaths
resulting from what the DRC claims was “deliberate violence” against the civil
population in Ituri505 and approximately US$ 2.69 billion for 142,000 deaths
resulting from acts “other than deliberate violence” in Ituri, Kisangani and other
areas.506
5.3 The quantum sought for deaths resulting from “deliberate violence” is
allegedly based on the amount of compensation Congolese courts award families
of persons killed in the commission of serious crimes against international law.507
According to the DRC, such compensation ranges from US$ 5,000 to US$ 100,000,
with the average sum ostensibly being US$ 34,000.508 This figure is then multiplied
503 DRCM, paras. 7.15, 2.71, 7.64.
504 Ibid., para. 7.11.
505 Ibid., para. 7.15.
506 Ibid., para. 7.15 (Translation by Counsel, original in French: “autres que des actes de violence
délibérés.”).
507 Ibid., para. 7.12.
508 Ibid.
162
by the alleged number of victims of deliberate violence (40,000) for a total of
US$1.36 billion.509
5.4 The DRC assesses the quantum claimed for deaths resulting from “other
than deliberate violence” based on the alleged future income that a victim would
have earned if he or she had lived to reach the normal life expectancy.510 This future
income claimed is based on two variables that are multiplied together: 25.11 (the
average years of life allegedly lost) and US$ 753.20 (the DRC’s alleged GDP per
inhabitant in 2015). The total claimed per individual is thus US$ 18,913.511
5.5 The DRC then multiplies this figure by the alleged number of deaths
resulting from non-deliberate violence:
 20,000 persons who allegedly lost their lives in Ituri due to Uganda’s
failure to comply with its obligations as an occupying Power (20,000 x
US$ 18,913 = US$ 378,260,000);
 920 persons killed during fighting between Ugandan and Rwandan
armed forces in Kisangani in 1999 and 2000 (920 x US$ 18,913 = US$
17,399,960);
 119,080 persons allegedly killed during fighting in other parts of the
DRC between 1998 and 2003 (119,080 x US$ 18,913 = US$
2,252,160,040);
 2,000 soldiers and officers of the Congolese armed forces (“FAC”)
(2,000 x US$ 18,913 = US$ 37,826,000).512
509 Ibid., para. 7.13.
510 Ibid., para. 7.09.
511 Ibid., para. 7.09.
512 Ibid., para. 7.15.
163
The total amount of compensation for this category is, as stated, approximately
US$ 2.69 billion.513
5.6 For the reasons explained below, these claims are both methodologically
flawed and unsupported by the evidence. Indeed, they are entirely speculative. The
DRC therefore fails to meet the burden the Court placed on it in 2005 to “prove”
the “exact injury” that was suffered “as a result” of “specific actions of Uganda”
constituting international wrongful acts for which it is responsible.514
Consequently, there is no basis for the award of compensation the DRC seeks for
the alleged loss of life.
*
5.7 Section I of this Chapter will briefly review the standard methods and
evidence for proving the existence and valuation of deaths in international practice
and jurisprudence. Section II demonstrates that the DRC’s claims concerning the
number of deaths allegedly resulting from Uganda’s actions are unsupported by the
evidence; indeed, they are entirely speculative. Section III discusses the
methodological flaws in the DRC’s attempts to place a valuation on the deaths it
claims.
I. The DRC’s Claims Are Not Based on the Standard Method or
Evidence for Proving the Existence and Valuation of Deaths
5.8 Before turning to the DRC’s request for compensation relating to loss of
life, Uganda considers it helpful briefly to recall the standard methods for proving
the existence and valuation of deaths that have long been employed by States and
513 Ibid.
514 See Chapter 3.
164
international courts and tribunals. Doing so helps put into perspective the DRC’s
wholesale failure to meet its burden of proving its claims concerning the loss of
life allegedly caused by Uganda.
5.9 A survey of that practice515 indicates that the method for proving
compensation for death entails several elements. These include: (1) the
identification of the persons who are alleged to have died, including their name,
location and date of death; (2) a determination of which victims were gainfully
employed, recognising that if the decedent was not employed (such as a child or
elderly person), recovery typically is not awarded for material loss; (3) for victims
who were gainfully employed, information concerning their earnings, typically
established either through evidence specific to the victim or, at least, the class of
persons who are employed in the victim’s occupation; and (4) information
concerning the loss of earnings to the victim’s estate based on his/her life
expectancy, which might be established through use of actuarial or other tables
specific to the victim’s locality.
5.10 These elements are typically proven through various forms of documentary
evidence contemporaneous with the alleged deaths, supplemented by sworn
affidavits from persons who observed the killings or local leaders familiar with the
incidents at issue. As Uganda will show below, the DRC has entirely failed to
present any such evidence.
515 See generally Edwin M. Borchard, The Diplomatic Protection of Citizens Abroad or the Law of
International Claims (1916); Jackson H. Ralston, The Law and Procedure of International
Tribunals (1926); Marjorie M. Whiteman, Damages in International Law (1937); A. H. Feller, The
Mexican Claims Commissions, 1923-1934: A Study in the Law and Procedure of International
Tribunals (1935); Green H. Hackworth, ed., Digest of International Law, Vol. 5 (1943); Richard B.
Lilich, ed., International Law of State Responsibility for Injuries to Aliens (1983); Christine Gray,
Judicial Remedies in International Law (1987).
165
5.11 The evidentiary void with which the Court is presented in this case stands
in stark contrast, for example, with the evidentiary showing made before the ICC
on reparations in the Katanga case. That case concerned massacre of at least 200
civilians in Bogoro village in the Ituri region of the DRC in 2003.516
Notwithstanding the remoteness and poverty of the area, as well as the lapse of
time between the commission of the crimes and the reparations phase (which was
commenced in 2015), claimants were nevertheless able to present various forms of
hard evidence, including: (1) death certificates signed by a civil status registrar in
the DRC; (2) certificates of family relationship (to establish the familial connection
between the claimant and the decedent); and (3) in cases where certificates of
family relationship were not available, other information sufficient to establish the
existence of a familial relationship (e.g., showing that the surnames on claimants’
voter cards matched those on a death certificate).
5.12 As discussed in Chapter 3, similar victim-specific evidentiary showings
were made before the Court during the reparations phase in the Corfu Channel case
(which concerned, in part, the deaths of U.K. soldiers).517 The practice of regional
human rights courts518 and claims settlement agreements negotiated between States
also reflect a similar victim-specific approach.519 Alternative techniques may be
possible for addressing mass claims for deaths before complex claims commissions
516 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07-3728,
Order for Reparations pursuant to Article 75 of the Statute (ICC Trial Chamber II, 24 Mar. 2017).
517 Corfu Channel (Compensation, 1949).
518 See Dinah Shelton, Remedies in International Human Rights Law (2015), pp. 315-375.
519 See generally Richard B. Lillich, International Claims: Postwar British Practice (1967); Burns
H. Weston, International Claims: Postwar French Practice (1971); Burns H. Weston et al.,
International Claims: Their Settlement by Lump Sum Agreements, 1975-1995 (1999).
166
but, as explained in Chapter 3, those techniques are not appropriate in the context
of traditional inter-State litigation.
5.13 Uganda understands that there may be difficulties in trying to gather
evidence of harms that occurred in remote areas during an armed conflict. Yet, as
elaborated below, the fact remains that the DRC has simply provided no evidence
of the type normally expected to prove the existence and valuation of specific harm
in the form of deaths. There are not just gaps in the evidence, there is a void.
5.14 This void is all the more conspicuous in that the DRC itself claims that it
collected evidence of the sort normally expected. Specifically, at paragraph 1.32 of
its Memorial, the DRC states that in the process of gathering information to support
its claims, it “gathered other items of evidence, such as documentary films,
photographs, objects or vestiges of war (such as shrapnel and ammunition), local
and international NGO reports, filmed eyewitness accounts of victims, death
certificates and other legal or medical documents”.520 For reasons the DRC does
not explain, no such information was presented with the Memorial, however.
II. The DRC Has Failed to Prove the Extent of the Injury It Claims
concerning the Alleged Loss of Life
5.15 The DRC’s claim for compensation relating to deaths must, of course, be
viewed against the backdrop of what the Court decided—and what it did not
decide—in its Judgment on the merits.
520 DRCM, para. 1.35 (Translation by Counsel, original in French: “récolté d’autres éléments de
preuve, tels des films documentaires, des photographies, des objets ou vestiges de la guerre (comme
des éclats d’obus, des munitions) … des rapports d’ONG locales et internationales, des témoignages
filmés de victimes, des certificats de décès ou d’autres documents médicaux ou judiciaires”.).
167
5.16 In the 2005 Judgment, the Court found that Uganda violated the principle
of non-use of force in international relations and the principle of nonintervention.
521 The Court did not, however, indicate that such violations resulted
in any of the deaths the DRC now claims.
5.17 The Court also found that Uganda violated its obligations under
international human rights and humanitarian law by the conduct of its armed
forces.522 The relevant harm identified in the Court’s disposif were “acts of
killing… of the Congolese civilian population”.523 The Court further identified a
failure “to distinguish between civilian and military targets and to protect the
civilian population in fighting with other combatants”, and found that Uganda
“incited ethnic conflict”, and “failed to take measures to put an end to the conflict”,
the dispositif to the 2005 Judgment, but did not identify any specific deaths
resulting from those violations.524
5.18 In addition, the Court found that Uganda failed, as an occupying Power in
Ituri, to take measures to respect and ensure respect for human rights and
international humanitarian law.525 Again, in the dispositif, the Court did not
indicate any deaths resulting from such conduct.
5.19 The Court’s findings that Uganda violated its obligations under
international human rights and humanitarian law in the form of acts of killing were
made only at a very general level. It made no specific determinations with respect
521 Armed Activities (2005), para. 345(1).
522 Ibid., para. 345(3).
523 Ibid.
524 Ibid.
525 Ibid., para. 345(1).
168
to particular losses of life. To the contrary, it expressly placed the burden on the
DRC at this subsequent phase to prove the exact injury that was suffered as a result
of the “specific actions of Uganda”.526 The DRC has, however, entirely failed to
meet this burden. Indeed, it makes no serious effort to do so.
5.20 The DRC Memorial includes citations to a number of sources that suggest
that some deaths occurred at some times in some places. It also cites to the claims
forms its investigators prepared for purposes of this litigation. But the DRC does
not rely on those sources to establish the number of deaths that allegedly occurred
as a result of Uganda’s actions. Instead, they are invoked only for purposes of
“illustrating” the injuries allegedly suffered.
5.21 Rather than attempt to identify specific deaths that occurred at specific
times in specific places, the DRC adopts an approach that, it says, “consists of
resorting to scientific works of an epidemiological or demographic nature that
studied the excessive mortalities caused by the conflict”.527 The specific flaws in
the DRC’s “epidemiological” and “demographic” approach are exposed in detail
below. The critical point now is that the DRC expressly eschews the particularised
showing the Court said that it would expect of it (and which is required by the
relevant practice and jurisprudence) in favour of a highly general, population-based
approach. This by itself warrants the rejection of this aspect of the DRC’s claim.
Moreover, even taken on its own terms, the DRC’s argument fails to support its
claims concerning the alleged loss of life.
526 Ibid., para. 260.
527 DRCM, para. 2.62 (Translation by Counsel, original in French: “qui consiste à faire appel aux
travaux scientifiques de type épidémiologique ou démographique qui ont étudié la surmortalité
causée par le conflit”.).
169
A. THE DRC’S CLAIM THAT UGANDA CAUSED 182,000 DEATHS IN THE DRC IS
SPECULATIVE AND UNSUPPORTED
5.22 The point of departure for the DRC’s claims is that the total number of
civilian deaths that were caused by Uganda’s intervention is 180,000.528
5.23 The DRC purports to calculate this number in two steps, each of which is
speculative and disproved by other evidence:
 First, the DRC cites to a series of four mortality surveys conducted by
the International Rescue Committee (“IRC”) between 2000 and 2004 in
which the IRC estimated that there were 3.9 million more deaths than
expected in the DRC between 1998 and 2003.529 This figure includes
deaths from all causes; “less than 10 percent of [these] deaths were due
to violence, with most attributed to easily preventable and treatable
conditions such as malaria, diarrhea, pneumonia and malnutrition”.530
Relying on the IRC’s estimates, the DRC submits: “Given the
carefulness that has to be observed in a legal proceeding”, it “believes
it is reasonable, in this context, to build [its claim for losses of life] on
a minimum estimate of 400,000 victims, 10 times less than the IRC’s
figure”.531
528 Ibid., para. 2.71 (Translation by Counsel, original in French: “l’ensemble des décès qui ont été
causés par l’invasion ougandaise”.).
529 Ibid., para. 2.64. The fourth IRC study covered the period between January 2003 and April 2004.
It thus covers a period of 11 months after Uganda left the DRC in June 2003. Armed Activities
(2005), para. 254. Five hundred thousand excess deaths were postulated in this time-period. (Burnet
Institute, International Rescue Committee, Mortality in the Democratic Republic of the Congo:
Results from a Nationwide Survey (2004), Annex 56). Even taken on its own terms, the DRC’s
figure of 3.9 million excess deaths would have to be corrected to take account of this problem.
530 DRCM, para. 2.64; International Rescue Committee, Burnet Institute, Mortality in the
Democratic Republic of Congo: An Ongoing Crisis (2007), p. ii, Annex 60.
531 DRCM, para. 2.70 (Translation by Counsel, original in French: “Au vu de la prudence qu’il
convient d’observer dans le cadre d’une procédure judiciaire, la RDC estime raisonnable, dans le
170
 Second, the DRC picks what it calls “a distribution key” of 45% to
apportion the number of deaths from this total for which Uganda is
allegedly responsible. It thus multiplies the aggregate number of
nominal civilian deaths (400,000) by 0.45, for a total of 180,000 deaths
which, the DRC contends, “can be reasonably considered a
consequence of the invasion by Uganda”.532
Both steps are ill-conceived.
The DRC’s Reliance on the IRC’s Retrospective Mortality Surveys Is
Misplaced
5.24 The DRC’s reliance on the IRC’s mortality surveys to establish the number
of excess deaths that occurred in the DRC between 1998 and 2004 is misplaced. In
the first instance, commentators have observed that the IRC’s studies were
undertaken for advocacy purposes; they were intended to draw the attention of the
international community to the crisis in the DRC.533 As a result, their scientific
validity has not surprisingly been the subject of substantial criticism.
présent contexte, de tabler sur une estimation minimale de 400.000 victimes, soit 10 fois moins que
le chiffre de l’IRC.”).
532 Ibid., para. 2.71. As a threshold matter, despite the professed “carefulness that has to be observed
in a legal proceeding”, the DRC gets its math wrong. The DRC computes its “minimum estimate”
of “400,000 deaths” based on one tenth of the IRC’s figure. However, the IRC’s figure is 3,900,000.
Therefore, one tenth of 3,900,000 is 390,000 not 400,000 (Translation by Counsel, original in
French: “dont on peut raisonnablement considérer qu’ils sont une conséquence de l’invasion d’une
partie substantielle du territoire congolais par l’Ouganda.”).
Moreover, The DRC’s use of 10% in calculating alleged deaths is also arbitrary. The IRC only
stated that “less than 10 percent” of 3.9 million people allegedly died due to violence. “Less than
10%” is not 10%; it is anywhere below 10%. Moreover, as will be shown in text, the percentage of
deaths resulting from violence reflected in the IRC’s four studies was 4.2%, not 10%. See infra
para. 5.46.
533 See, e.g., Human Security Report Project, “Part II, The Shrinking Costs of War”, Human
Security Report (2009-2010) pp. 24-25; A. Lambert, L. Lohlé-Tart, La surmortalité au Congo
(RDC) durant les troubles de 1998-2004: une estimation des décès en surnombre, scientifiquement
fondée à partir des méthodes de la démographie (Oct. 2008), p. 1, Annex 62; Health and Nutrition
171
5.25 Indeed, the DRC itself admits this in its Memorial when it acknowledges
that two Belgian demographers from the Association for the Development of
Applied Research to Social Studies, André Lambert and Louis Lohlé-Tart,
conducted their own 2008 study, in which “they arrived at a figure of 200,000
[deaths] due to the unrest, thus roughly dividing the initial [IRC] number by 20”.534
In fact, Lambert and Lohlé-Tart concluded that even this 200,000 figure was likely
significantly overstated.535
5.26 To understand the flaws in the IRC’s work and the reasons the DRC’s
reliance on it is misplaced, it is necessary to understand what the IRC did. The IRC
estimated the crude death rate (“CDR”) during the conflict by surveying a sampling
of households in selected areas of the DRC. Respondents were asked about the size
and composition of their households, and whether there had been any deaths in the
household during the survey period (1998-2000 for the first study; 2000-2001 for
the second study; 2002 for the third study; and 2003-2004 for the fourth study).
The IRC then compared its estimate of the CDR during the conflict to a
hypothetical pre-war death rate to calculate the number of excess deaths during the
conflict.
5.27 The Court does not need to take Uganda’s word for it that the IRC’s work
was flawed. It can start with the words of the IRC itself. The IRC itself
acknowledged that its mortality surveys had methodological weaknesses that likely
Tracking Service (HNTS), Peer Review Report: Re-Examining mortality from the conflict in the
Democratic Republic of Congo, 1998-2006 (2009), p. 3, Annex 63.
534 DRCM, para. 2.68 (Translation by Counsel, original in French: “ils aboutissent à un chiffre de
200.000 morts dus aux troubles, divisant ainsi grossièrement le nombre initial par 20.”).
535 A. Lambert, L. Lohlé-Tart, La surmortalité au Congo (RDC) durant les troubles de 1998-2004:
une estimation des décès en surnombre, scientifiquement fondée à partir des méthodes de la
démographie (Oct. 2008), p. 17, Annex 62.
172
inflated the number of deaths estimated. In its first study, for example, the IRC
acknowledged the following limitation, among others:
“There was ‘no follow-up or confirmation of the
information provided by interviewees’, which had
‘two problematic aspects: people may have lied to
interviewers or may have been mistaken about the
cause, month or age of reported decedents’”.536
5.28 Still other limitations were listed in a synopsis of the studies published in
the journal Lancet:
 Although information about the cause of death was sought, “formal
verbal autopsies were not done”.537 Additionally, “no independent
confirmation of cause of death from health facilities or other sources
was sought”.538
 “Inaccurate government census data” received from the DRC “might
have resulted in selection bias”.539
536 See Les Roberts, IRC Health Unit, Mortality in eastern Democratic Republic of the Congo:
Results from 11 Surveys (2001). p. 15, Annex 51.
537 According to the World Health Organization, a verbal autopsy is:
“a method used to ascertain the cause of a death based on an interview with next
of kin or other caregivers. The interview is done using a standardized
questionnaire that elicits information on signs, symptoms, medical history and
circumstances preceding death. The cause of death, or the sequence of causes that
led to death, are assigned based on the data collected using the [verbal autopsy]
questionnaire and any other available information.”
World Health Organization, Verbal Autopsy Standards: 2012 WHO Verbal Autopsy
Instrument (2012), Annex 96.
538 B. Coghlan, R. Brennan, et al., "Mortality in the Democratic Republic of Congo: a Nationwide
Survey", The Lancet, Vol. 367, No. 9504 (7 Jan. 2006), p. 50, Annex 58.
539 Ibid. The existence of selection bias means that the sample obtained is not represented of the
population the survey intended to analyse.
173
 Violence-related mortality was overstated for areas with higher-thanaverage
pre-war mortality rates.540 This especially affected the results
for the eastern areas of the DRC, which had been adversely affected by
the aftermath of the 1994 genocide in Rwanda and the civil war leading
to the overthrow of Mobutu even before the outbreak of conflict in
1998.541
5.29 In fact, the IRC’s team leader for the first two studies, Dr Les Roberts,
acknowledged that his team disregarded “standard academic protocols” and
described the survey procedures they employed as “kind of bad science”.542
5.30 The IRC report has also been the subject of substantial criticism by
reputable experts other than Lambert and Lohlé-Tart. The Health and Nutrition
Tracking Service (“HNTS”) is an inter-agency initiative hosted by the WHO that
“aims to provide impartial, credible and timely information on mortality and
nutrition rates in populations affected by crises and emergencies”.543 In 2006, it
conducted a review of the IRC studies and concluded that its estimates of the
number of excess deaths were “difficult to substantiate”.544
5.31 The HNTS expressed particular skepticism about the notional pre-war
mortality rate selected by the IRC. (Because the IRC’s methodology involved
comparing the pre-war CDR to the death rate during the conflict, any errors in the
estimation of the pre-conflict CDR have a significant effect on the calculations. In
540 Ibid.
541 Ibid.
542 Human Security Report Project, “Part II, The Shrinking Costs of War”, Human Security Report
(2009-2010), Annex 64.
543 Health and Nutrition Tracking Service (HNTS), Peer Review Report: Re-examining mortality
from the conflict in the Democratic Republic of Congo, 1998-2006 (2009), cover page, Annex 63.
544Ibid., p. 21.
174
short, the lower the pre-war CDR, the higher the resulting estimate of deaths during
the conflict. Conversely, the higher the pre-war CDR, the lower the number of
excess deaths).
5.32 The IRC based its calculations on an assumed pre-war CDR of 1.5 deaths
per 1,000 people per month, a figure equal to the average CDR for sub-Saharan
African countries. The HNTS did not consider the IRC’s reliance on the average
sub-Saharan CDR justifiable. It stated:
“Choosing the average Sub‑Saharan rate for
comparison is also problematic because it assumes
that the demographic regime in DRC was an
‘average African’ before the war broke out. In fact,
several different demographic patterns may be
identified in Africa, each with its own
characteristics. For example, countries with very
high prevalence of HIV/AIDS have different
mortality patterns than those with low prevalence.
DRC in 1998 was a country that had for many years
undergone a profound crisis of governance, which
may well have affected mortality patterns”.545
5.33 The HNTS also observed that the IRC’s calculations assumed a sudden and
sharp increase in mortality above the pre-war baseline at the start of the conflict in
the DRC, an assumption that significantly affected the resulting estimates.
According to the HNTS,
“[T]he underlying assumption of IRC that mortality
increased suddenly in 1998 following the outbreak
of the war is probably not warranted. According to
IRC the predominant direct cause of mortality is not
violence, but rather disease, and one would assume
that much of the increase then would be gradual,
545 Ibid., p. 8.
175
reflecting worsening conditions because of the
war”.546
5.34 Still further, the HNTS criticised the IRC’s studies because they failed to
take account of the age distribution of the population of the DRC. The HNTS wrote:
“The Crude Death Rate is not a good measure to
compare mortality across countries or across time,
because the rate depends on the age distribution of
the population. With equal age specific rates, an old
population will normally have a much higher CDR
than a population with a high proportion of young.
Thus, the CDR is influenced by the age distribution
and by extension by the fertility rate. Similarly,
populations that have their age distributions
distorted, for example due to conflict or migration,
may have quite different CDRs than populations
without such distortions, but with the same
underlying mortality. Therefore, comparing CDRs
with a ‘baseline’ is in principle foolhardy without
age standardizing so that the baseline CDR can be
expressed in terms of the age distribution of the
actual population”.547
5.35 Other independent organisations share the HNTS’s concerns. The Human
Security Report Project (“HSRP”), an independent research center affiliated with
Simon Fraser University in Vancouver, Canada, reviewed the IRC studies in a 2010
report entitled “The Causes of Peace and the Shrinking Costs of War”. The study
included an extensive critique of the IRC’s work.
5.36 At the most fundamental level, the HSRP questioned the validity of using
retrospective mortality surveys like the IRC’s to measure the number of excess
546 Ibid., p. 9.
547 Ibid., p. 8.
176
deaths during a conflict. According to the HSRP, retrospective mortality surveys
are “subject to many sources of uncertainty and error” such that they “are simply
too crude an instrument to detect the impact of most wars on nationwide mortality
rates”.548 It therefore concluded that “retrospective mortality surveys are rarely
appropriate instruments for measuring excess death tolls in wars in poor countries,
except in relatively rare circumstances—namely, very short wars”.549
5.37 The HSRP also observed that international health organisations do not use
such health surveys to measure excess war deaths, stating:
“The nationwide population health surveys
undertaken by Demographic and Health Surveys
(DHS, UNICEF (United Nations Children’s Fund),
and WHO (World Health Organization)) are not
used by these organizations to produce such
estimates [of excess war deaths]—we believe with
good reason”.550
5.38 With respect to the specific studies undertaken by the IRC, the HSRP was
equally critical. Echoing the HNTS study, the single largest problem the HSRP
identified was the notional pre-war baseline CDR the IRC relied on to estimate the
number of excess deaths during the conflict.
5.39 As stated, the IRC based its calculations on an assumed pre-war CDR equal
to the average CDR for sub-Saharan African countries. The HSRP found this
assumption unsustainable:
548 Human Security Report Project, “Part II, The Shrinking Costs of War”, Human Security Report
(2009-2010), p. 132, Annex 64.
549 Ibid.
550 Ibid.
177
“[T]he IRC never explains why it believes that the
sub-Saharan African average is an appropriate
measure of the pre-war mortality rate for a country
that is far from average in sub-Saharan Africa.
…The DRC languishes at the bottom of most
development indicators for sub-Saharan Africa. It
suffered a devastating 20-year economic decline
from the mid-1970s that reduced its GDP (gross
domestic product) per capita from more than USD
300 to just a third of that figure by 1998. Foreign aid
was withdrawn almost completely in the early
1990s, and Mobutu Sese Seko’s hopelessly inept and
corrupt government had collapsed in total disarray
by 1997”.551
5.40 The HSRP considered that a pre-war CDR of 2.0 per 1,000 per month (vs.
the 1.5 per 1,000 per month used by the IRC) would likely be more accurate. Just
making this one change to the IRC’s calculations yielded “a massive reduction in
the excess death tolls”.552 But even then, the HSRP was quick to add that this
revised calculation was not intended to produce a “correct” estimate.553 To the
contrary, it stated: “[W]e do not believe the data are reliable enough to permit
this”.554 The point of changing the pre-conflict CDR was simply “to show how a
modest, but plausible, increase in a highly questionable baseline mortality rate can
lead to a radically lower excess death toll”.555
551 Ibid., p. 125.
552 Ibid., p. 130.
553 Ibid.
554 Ibid.
555 Ibid.
178
5.41 Indeed, the HSRP observed that the intrinsic uncertainties in determining
the baseline mortality rate might render the
“excess death tolls from low-intensity conflicts…
undetectable. If the real excess death toll is less than
the uncertainties in wartime and pre-war mortality
trend data, then the impact of war deaths may be
hidden by the imprecision of the very instruments
that are being used to try and detect them”.556
5.42 The HSRP found other equally problematic errors in the IRC’s
methodology. In particular, with respect to the first two IRC studies (which covered
the years 1998-2001 and accounted for 2.5 million of the estimated total of 3.9
million excess deaths between 1998 and 2004), the HSRP observed that (1) the
IRC’s survey sites were not randomly selected and therefore could not
appropriately be used to estimate reliable, nationwide results;557 and (2) the IRC
failed properly to extrapolate from the survey sites to the rest of the DRC as a
whole. On this basis, too, it therefore concluded that the IRC survey results should
“be rejected”.558
556 Ibid., p. 135.
557 In three of the eight areas selected for the first two surveys—Kisangani, Kabare, and Katana—
the IRC had deployed, or intended to deploy, humanitarian assistance programs. According to the
HSRP, logically, these would have been areas of high mortality, since there would be little reason
for the IRC to deploy assistance programs in areas with low mortality rates. The IRC’s data were
therefore skewed towards higher mortality levels and should not have been extrapolated to estimate
the numbers for the country. Human Security Report Project, “Part II, The Shrinking Costs of War”,
Human Security Report (2009-2010), Annex 64.
558 Human Security Report Project, “Part II, The Shrinking Costs of War”, Human Security Report
(2009-2010), pp. 128, Annex 64.
179
5.43 A further review of the IRC’s work confirms these critiques and raises
concerns, in particular, about trying to derive any conclusions about the
consequences of Uganda’s actions in the DRC.
5.44 In its first and second studies, the IRC surveyed a total of only eight sites,
the selection of which, as stated, the HSRP criticised as being non-random. Equally
important, only one of the eight locations surveyed was within Uganda’s sphere of
operations: Kisangani (which was surveyed both times). Notably, Kisangani had
the lowest reported mortality rate in the 2000 survey559 and the second lowest in
the 2001 survey.560 (In contrast, the areas with the highest mortality rates in the
surveys (Moba at 11.4/12.1561 and Kalamie at 10.8562) were in the southern-most
part of the eastern provinces and nowhere near Uganda’s sphere of operations).
5.45 Even more importantly, none of the deaths in Kisangani reported in the first
and second studies were attributed to violence. In other words, in the one area
where Uganda was present, the IRC recorded no acts of killing—not a single one—
in the first or second studies, whether committed by Uganda or anyone else. The
IRC’s studies plainly cannot form a basis in law, or even logic, to attribute
responsibility to Uganda for any deaths.
5.46 Uganda notes also that the DRC’s claims about the number of deaths
generally attributable to violence are also overstated. According to the DRC, the
559 International Rescue Committee, Mortality in Eastern DRC: Results from Five Mortality surveys
by the IRC (May 2000), p. 12, Annex 50.
560 Les Roberts, International Rescue Committee Health Unit, Mortality in eastern Democratic
Republic of the Congo: Results from 11 Surveys (2001), pp. 21-22, Annex 51.
561 Ibid.; International Rescue Committee, Mortality in Eastern DRC: Results from Five Mortality
surveys by the IRC (May 2000), p. 12, Annex 50.
562 Les Roberts, International Rescue Committee Health Unit, Mortality in eastern Democratic
Republic of the Congo: Results from 11 Surveys (2001), pp. 21-22, Annex 51.
180
IRC concluded from its studies that less than 10% of deaths were due to violence.563
This is a significant overstatement. The reported percentages of deaths from
violence in the first four studies were 11.1%, 9.4%, 1.6% and 1.8%, respectively.564
The percentage of deaths due to violence across all four studies was just 4.2%;565
meaning that even accepting the very doubtful IRC estimate of 3.9 million excess
deaths, only some 160,000 were caused by direct violence, not the 400,000 the
DRC claims.
5.47 Equally important, none of the deaths from direct violence reported by the
IRC—not one—are attributed to Uganda. Uganda has already discussed the first
and second studies above. But it is true also of the third and fourth studies as well.
There, too, none of the recorded violent deaths are linked to Uganda in any way.
This is significant because some of the perpetrators are identified; they include the
Interahamwe, the RCD and Rwanda, among others.
5.48 How the DRC thinks it reasonable to rely on studies that do not indicate
that Uganda caused even a single violent death to justify a claim that it is actually
responsible for the deaths of 180,000 DRC civilians is deeply unclear.
5.49 The DRC’s attempt to rely on the IRC studies to determine the number of
excess deaths caused by the conflict, let alone to rely on them to attribute
563 DRCM, paras. 266-267.
564 International Rescue Committee, Mortality in the DRC: Results from a Nationwide Survey
(2003), p. 11, Annex 54; Burnet Institute, International Rescue Committee, Mortality in the
Democratic Republic of the Congo: Results from a Nationwide Survey (2004), p. 15, Annex 56.
565 Uganda computed this average by calculating the total number of deaths and the total number of
deaths resulting from violence recorded in the four IRC studies.
181
responsibility for 180,000 civilian deaths to Uganda, is therefore entirely
unjustified.
The DRC’s Claim that Uganda Is Responsible for 45% of the
the Alleged Deaths that Occurred Throughout the DRC Is Wholly Arbitrary
5.50 The DRC’s selection of a so-called “distribution key” of 45% to establish
the proportion of excess deaths estimated by the IRC that “can be reasonably
considered a consequence of the invasion by Uganda”566 is not just equally
speculative, it is wholly arbitrary.
5.51 The DRC Memorial notably provides no evidence—or even a rational
explanation—to justify the “distribution key” of 45%. The DRC literally makes no
attempt to explain the figure other than the single, conclusory assertion that it takes
into account the fact that “other actors bear responsibility in [the war’s]
outbreak”.567 The DRC has, in effect, picked the number at random.
5.52 The DRC’s speculative, unexplained approach is plainly at odds with the
requirement to establish a sufficiently direct and certain causal nexus between the
wrongful act and the injury.568 The EECC held that for claims “seeking many
millions of dollars,” quantification of injury “must be based on more than
566 DRCM, para. 2.71 (Translation by Counsel, original in French: “dont on peut raisonnablement
considérer qu’ils sont une conséquence de l’invasion d’une partie substantielle du territoire
congolais par l’Ouganda.”).
567 Ibid., (Translation by Counsel, original in French: “d’autres acteurs sont responsables de son
déclenchement.”).
568 See Chapter 4 of Uganda’s Counter-Memorial.
182
subjective assertions of ‘reasonableness’”.569 But that is exactly what the DRC does
here.
5.53 Quite apart from this self-evident flaw, the “distribution key” the DRC
proffers is, on its face, not credible. As explained in Chapter 2,570 the armies of at
least eight other States (Angola, Burundi, Chad, DRC, Namibia, Sudan, Rwanda
and Zimbabwe), and at least 21 major irregular armed groups (and an even larger
number of smaller irregular armed groups) were involved in the conflict.
5.54 Moreover, Uganda’s involvement in the conflict was comparatively
limited. At the height of the deployment in the DRC, Uganda had no more than
10,000 troops present in the Congo. To attribute to Uganda responsibility for what
is effectively one-half of all the violent deaths that allegedly occurred in the DRC
is facially unfounded. Indeed, the 180,000 deaths that the DRC seeks to ascribe to
Uganda would mean than each and every Ugandan soldier, including medics, cooks
and religious personnel, was responsible for 18 Congolese deaths. The absurdity of
the assertion speaks for itself.
5.55 In its 2005 Judgment, the Court underscored that “the actions of the various
parties”—not just Uganda—“in the complex conflict in the DRC have contributed
to the immense suffering faced by the Congolese population.”571 This includes the
Government of the DRC, among many others.572 Ascribing responsibility for 45%
569 Ethiopia’s Damages Claims (Final Award, 2009), para. 85.
570 See Chapter 2, Section II of Uganda’s Counter-memorial.
571 Armed Activities (2005), para. 221.
572 The IRC states in its 2007 report, for example: “Deaths from violence accounted for just 0.4
percent of deaths nationally, including 0.6 percent of all mortality reported in the East and 0.3
percent in the West. Two of three deaths in the West appeared to be associated with the crackdown
on opposition supporters in Kinshasa and Bas-Congo during March 2007. One was a boy of nine,
the other a boy of 12. Of 11 deaths in the East, seven were in North Kivu. Perpetrators were
183
of the violent deaths in the DRC to Uganda would be incompatible with the Court’s
observations.
5.56 Neither the numbers the DRC attempts to derive from the IRC’s advocacybased—
and widely criticised—report, nor its efforts to apportion responsibility to
Uganda for 45% of the estimated deaths that occurred in the DRC afford any basis,
let alone in a judicial proceeding, to ascribe international legal responsibility to
Uganda for the loss of life occurring in the DRC between August 1998 and June
2003.
Other Sources, Including the DRC’s Own “Evidence”, Disprove the DRC’s
Claims concerning the Number of Deaths in the DRC
5.57 The wildly excessive nature of the DRC’s claims concerning the number of
deaths for which Uganda is responsible is still further belied by other sources of
information, including the DRC’s own evidence.
5.58 As discussed in Chapter 3, Section III(C)(3), the DRC claims to have
conducted inquiries designed to establish the nature and extent of the harms caused
by Uganda during the conflict. Among the sources of information gathered are
some 10,000 individual claims forms that allegedly summarise “information
gathered on the ground and contain[] the name of the victim, a state of the damages
suffered and, in some cases, an approximate evaluation of the injury.”573
identified in nine instances and included police, Mai Mai, Forces Démocratiques de Libération du
Rwanda and the Congolese national army. There was only one violent death of a female; she was
shot by police in Itebero province, North Kivu.” International Rescue Committee, Burnet Institute,
Mortality in the Democratic Republic of Congo: An Ongoing Crisis (2007), p. 12, Annex 60.
573 DRCM, para. 1.35 (Translation by Counsel, original in French: “les renseignements recueillis
sur le terrain, avec le nom de la victime, l’indication des dommages subis ainsi, dans certains cas,
qu’une évaluation approximative des préjudices.”).
184
5.59 For reasons only the DRC knows, it chose not to submit any of these claims
forms into evidence in these proceedings. It has merely submitted a series of
unsworn and unsigned tables that purport to summarise the content of the claims
forms. The DRC Memorial provides no information about how these tables were
compiled.
5.60 The information ostensibly summarised in the DRC’s tables does not
constitute reliable evidence on which the Court may base any findings. It is, at best,
an unverified (and unverifiable) compilation of the purported contents of the
alleged source material, which has not been placed before the Court.
5.61 Further, even if these summary tables were accepted at face value (which
they should not be), the fact would remain that they are largely devoid of the sort
of information that would allow for firm legal conclusions. In many cases, the
names of the alleged decedents are not provided, nor is there any indication of the
circumstances of their death, including date of death, cause of death or the person(s)
responsible.
5.62 In any event, what is particularly notable for current purposes is the extent
to which the number of alleged deaths recorded in the DRC’s summary tables
diverges from the numbers claimed in the Memorial. A total of 5,893 deaths are
nominally recorded in the summary tables.574 Uganda is not identified as the
perpetrator of any of these. The DRC’s own would-be evidence, which purports to
be based on primary source material, thus refutes its exaggerated contentions about
the number of deaths for which Uganda is responsible.
574 “Rapport Décès Effectif/Ville de 1998 à 2003” in file Dommage Décès, DRCM Annex 1.3.
185
5.63 Other neutral sources equally confirm the inflated nature of the DRC’s
claims. For example, the Uppsala Conflict Data Program (“UCDP”), housed at the
Uppsala Universitet in Stockholm, Sweden, maintains a database concerning
conflict-related casualties. According to the UCDP’s website, it
“is the world’s main provider of data on organized
violence and the oldest ongoing data collection
project for civil war, with a history of almost 40
years. … UCDP produces high-quality data, which
are systematically collected, have global coverage,
are comparable across cases and countries, and have
long time series which are updated annually.”575
5.64 The UCDP database covers battle-related deaths576 and one-sided violent
incidents.577 Its sources are news agencies, research reports, monographs, and
documents of international and multinational agencies and NGOs.578 Documents
of actors themselves (such as warring parties) are also used when available. UCDP
relies on the Factiva database to obtain news sources, then relies on bulletins,
journals and books such as the Africa Research Bulletin as well as online databases
provided by NGO’s and inter-governmental organisations to supplement and
575 Uppsala University, Department of Peace and Research, About UCDP, available at
http://pcr.uu.se/research/ucdp/about-ucdp/ (last accessed 25 Jan. 2018), Annex 104.
576 UCPD defines “battle-related deaths as deaths resulting from the use of force in a “conflict dyad”,
meaning two armed and opposing actors engaged with each other. Battle-related deaths include
civilian deaths as a result of crossfire, indiscriminate bombings, etc. Uppsala University,
Department of Peace and Research, Definitions: Battle Related Deaths, available at
http://www.pcr.uu.se/research/ucdp/definitions/ (last accessed 24 Jan. 2018), Annex 102.
577 UCPD defines “one-sided violence” as the use of armed force by the government of a state or
by a formally organised group against civilians which results in at least 25 deaths in a year. Uppsala
University, Department of Peace and Research, One-sided Violence, available at
http://pcr.uu.se/research/ucdp/definitions/#One-sided_violence (last accessed 26 Jan. 2018), Annex
105.
578 Uppsala University, Department of Peace and Research, FAQ, How Are UCDP Data Collected?,
available at http://pcr.uu.se/research/ucdp/faq/#How_are_UCDP_data_collected_ (last accessed 26
Jan. 2018), Annex 106.
186
corroborate their news sources. If an event or report is not fully verified, UCDP
will contact regional and local experts to validate various aspects of the incident.
5.65 Among many other conflicts, the UCDP database includes information
concerning the conflict in the DRC. Uganda has examined the database with great
care. The results are revealing. They show that the UCDP’s “best estimates” of the
deaths resulting from the conflict between August 1998 and June 2003 are:
 29,376 total civilian and rebel deaths;579
 211 of these 29,376 (i.e., 0.7%) deaths are linked to Uganda; and
 310 reported civilian and rebel deaths are linked to Uganda-affiliated
groups, such as the RCD-ML, RCD-N and the FLC.
5.66 By way of comparison, the database shows 9,420 civilian and rebel deaths
linked to the DRC military.580
5.67 Limiting the search results only to civilian deaths yields figures that are
significantly lower still. For the period between August 1998 and June 2003, they
show “best estimates” of:581
 13,593 civilian deaths;
579 Uppsala University, Department of Peace and Research, DR Congo, Zaire, available at
http://ucdp.uu.se/#/country/490 (last accessed 26 Jan. 2018). The data, accessible through the
download list, have three columns: best, highest, and lowest. The highest estimate for this time
period was 51,109 deaths, the lowest estimate for this time period was 28,197 deaths.
580 All calculated using the “best estimate” column.
581 Using the same date range as above, the data were cleaned to reflect only incidents where
civilians had been killed by armed groups (i.e. one-sided violent incidents). These calculations were
computed using the “best estimate” column.
187
 32 of these civilian deaths (i.e., 0.2%) are linked to Uganda; and
 240 additional reported civilian deaths are linked to Uganda-affiliated
groups.
5.68 Again by way of comparison, the UPCD database links 1,429 civilian
deaths to the DRC military.582
5.69 The Armed Conflict Location and Event Data Project (“ACLED”), housed
at the University of Sussex in the United Kingdom, maintains a similar database.
ACLED focuses on developing States, with a particular concentration on Africa.
According to the ACLED website, it uses daily local, regional, national and
continental media, NGO and humanitarian agency reporting and supplementary
Africa-focused news reports as source materials. Its data are coded by experienced
researchers who collect information primarily from these sources. The data are then
reviewed by two additional coders.
5.70 As it did with the UCDP database, Uganda has carefully examined the
ACLED database. It reflects:583
 23,791 total reported fatalities (civilian and military);
 3,295 of these total fatalities (i.e., 14%) are linked to Uganda; and
 2,559 reported fatalities are linked to Uganda-affiliated groups (the
MLC and the FLC).584
582 All calculated using the “best estimate” column.
583 Armed Conflict Location & Event Data Project (ACLED), Democratic Republic of the Congo,
available at https://www.acleddata.com/tag/democratic-republic-of-congo/ (last accessed 26 Jan.
2018). The data used were from incidents beginning in August 1998 through June 2003.
584 Affiliated groups include the MLC and the FLC.
188
5.71 With respect to civilian deaths,585 the ACLED data indicate:
 8,012 reported civilian fatalities;
 117 of these 8,038 civilian fatalities (i.e., 1.5%) were caused by onesided
violence perpetrated by Uganda; and
 170 reported civilian fatalities were caused by one-sided violence
perpetrated by Uganda-affiliated groups.586
5.72 Uganda has also similarly examined the UN Mapping Report prepared
under the auspices of the UN’s Office of the High Commissioner on Human Rights
for purposes of documenting serious violations of human rights occurring in the
DRC between March 1993 and June 2003. The report’s findings were based on
interviews with “several hundred interlocutors, both Congolese and foreign, who
witnessed atrocities in the country”587, and a review of
“[o]ver 1,500 documents on this subject, some of
them confidential… from many sources, including
the United Nations, the Congolese Government,
Congolese human rights organisations, major
international human rights organisations, the
national and international media and various NGOs
(notably unions, religious groups, aid agencies and
victims’ associations). In addition, different national
and international experts were consulted in order to
open up new avenues of research, corroborate some
of the information obtained and streamline the
overall analysis of the situation.”588
585 This does not include battles that resulted in civilian deaths, only events where Congolese
civilians were the sole recipient of violence.
586 Affiliated groups include the MLC and the FLC.
587 U.N. Mapping Report, p. 1, Annex 25.
588 Ibid., para. 14.
189
5.73 This information then “was verified in order to corroborate or invalidate
that information with the aid of independent sources, while also obtaining new
information on previously undocumented violations.”589 The UN Mapping Report,
in short, constitutes a compilation and distillation of all previous information the
authors considered credible enough to warrant mention.
5.74 A note of caution is necessary in considering the UN Mapping Team’s
findings, however:
“Since the primary objective of the Mapping
Exercise was to ‘gather basic information on
incidents uncovered’, the level of evidence required
was naturally lesser than would be expected from a
case brought before a criminal court. The question
was therefore not one of being satisfied beyond
reasonable doubt that a violation was committed, but
rather of reasonably suspecting that the incident did
occur.”590
In other words, the standard of proof the UN Mapping Team adopted in recording
incidents was lower than the standard applied in this Court to prove facts to a high
degree of certainty.591
5.75 Uganda has located every instance where the UN Mapping Report links,
whether directly or indirectly, one or more deaths to Uganda in the period between
7 August 1998 and 2 June 2003. This includes circumstances in which individuals
589 Ibid.
590 Ibid., para. 7 (“Reasonable suspicion [was] defined as ‘necessitating a reliable body of material
consistent with other verified circumstances tending to show that an incident or event did happen.’
Assessing the reliability of the information obtained was a two-stage process involving evaluation
of the reliability and credibility of the source, and then the validity and veracity of the information
itself”.).
591 See Chapter 3, Section II(A).
190
were killed in confrontations between Uganda and other armed groups, and in
which individuals were killed by other actors with the nominal assistance of
Uganda. A compilation of all such instances is appended to this Memorial as Annex
110.592
5.76 Adding these reported deaths together, the UN Mapping Report suggests
the total number of deaths for which there is even a “reasonable suspicion” to
believe they resulted from conduct in which Uganda was involved is approximately
2,291.593
5.77 These figures, whether from UPCD, ACLED or the UN Mapping Report,
are all substantially more than an order of magnitude less than the numbers the
DRC claims.
5.78 In considering the significance of these figures, it bears emphasis that the
DRC itself argues that international reports, including the UN Mapping Report,
provide the correct order of magnitude for assessing the scope of the harms it
allegedly suffered.
592 Calculated Number of Civilian Deaths between 7 August 1998 and 2 June 2003 (Source: U.N.
Mapping Report), Annex 110. Uganda has excluded from this list certain incidents alleged to have
occurred in early August 1998 in the vicinity of Kinshasa. These have been excluded because the
Court held in 2005 with the force of res judicata that Uganda did not participate in the events of
early August near Kinshasa. Armed Activities (2005), para. 254. Uganda has also excluded from
this list one incident that is alleged to have occurred after 2 June 2003, the date on which the Court
previously determined that Uganda’s intervention ended.
593 The UN Mapping Report does not always provide specific numbers. When its refers to “several”
people reportedly having been killed, Uganda has used the number four as an approximation for the
term “several”. When it refers to “at least” a certain number of being allegedly being killed, Uganda
has used that number. When it refers to the number of people killed as being “between” two specific
numbers, Uganda has used the average of those two numbers.
191
5.79 In explaining its own methodology—that is, its use of claims forms and
other data “based on research on the ground” together with “information from
reports drafted by various, mostly international actors who had access to the areas
affected during the critical period”594—the DRC revealingly states:
“The international reports, for their part, obviously
did not have the same objective [as the claims
forms]. Their purpose was to give a general
overview of the material and human damage caused
by the conflict. Even though they provide invaluable
information on a series of particular events, they do
not go into a degree of detail that allows them to
establish the injuries suffered from an individual
standpoint following those events. The general
overviews that they present are invaluable
nonetheless because they give orders of magnitude
for the damage resulting from the violations by
Uganda of its international obligations”.595
5.80 The DRC’s presentation of a claim for deaths that vastly exceed the
numbers reflected in the very international reports that it argues give the correct
“orders of magnitude for the damage resulting from the violations by Uganda of its
international obligations” flatly contradicts its own reasoning.
5.81 The DRC itself says:
594 DRCM, para. 1.36 (Translation by Counsel, original in French: “renseignements à partir de
rapports élaborés par divers acteurs, principalement internationaux, qui avaient accès aux zones
concernées pendant la période critique.”).
595 Ibid., para. 1.39 (Translation by Counsel, original in French: “Les rapports internationaux, pour
leur part, ne visaient à l’évidence pas le même objectif. Ils avaient pour fonction de faire un bilan
général des dégâts matériels et humains occasionnés par le conflit. S’ils fournissent des informations
précieuses sur une série d’événements particuliers, ils n’entrent pour autant pas dans un degré de
détails tels qu’ils permettent d’établir les préjudices subis sur un plan individuel à la suite de ces
événements. Les bilans d’ensemble qu’ils présentent sont néanmoins précieux, car ils donnent des
ordres de grandeur des dommages résultant des manquements par l’Ouganda à ses obligations
internationales”.).
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“The thousands of cases recorded [in the claims
forms] are only examples illustrating the reality and
extent of the damage suffered on the ground. They
must be read alongside the figures stemming from
the various reports whose purpose is more general
and comprehensive.”596
5.82 Doing exactly what the DRC says “must” be done and reading the claims
forms “alongside” the UCPD and ACLED databases, as well as the UN Mapping
Report, the conclusion is clear: the DRC’s claim that Uganda is responsible for
180,000 civilian deaths during the conflict is unfounded and excessive in the
extreme.
5.83 The data available from the UPCD and ACLED databases suggest that the
DRC’s attempt to attribute responsibility for 45% of the claimed civilian deaths to
Uganda is also wildly off the mark. The percentages of civilian deaths for which
Uganda is identified as responsible in those databases ranges between 0.2% and
1.5%. None of these figures even approximates the DRC’s arbitrarily selected
“distribution key”.
B. THE FLAWED NATURE OF THE DRC’S CLAIMS ARE HIGHLIGHTED BY THE WAY
IN WHICH IT ATTEMPTS TO ALLOCATE THE NUMBER OF DEATHS BY REGION.
5.84 The arbitrariness of the DRC’s claim that Uganda is responsible for 180,000
civilian deaths is further highlighted by how the DRC attempts to apportion this
number among different locations: (1) Ituri (60,000 deaths); (2) Kisangani (920
deaths); and (3) locations other than Ituri and Kisangani (119,080).
596 Ibid., para. 1.40 (Translation by Counsel, original in French: “Ils doivent être mis en relation
avec les chiffres résultant des différents rapports qui ont une vocation plus générale et
globalisante”.).
193
Locations Other than Ituri and Kisangani
5.85 Because the DRC claims that nearly two-thirds of the civilian deaths for
which Uganda is allegedly responsible occurred in locations other than Ituri and
Kisangani—and because its approach to these locations starkly highlight the
excessive and unfounded nature of the DRC’s contentions—Uganda will begin
with this aspect of the DRC’s claims.
5.86 As stated, the DRC claims that Uganda caused the death of 119,080
civilians in locations other than Ituri and Kisangani. The manner in which the DRC
arrives at this figure is revealing. It simply subtracts the number of civilian deaths
the DRC alleges Uganda caused in Ituri (60,000) and Kisangani (920) from the
total number of deaths the DRC seeks to ascribe to Uganda (180,000).
5.87 In other words, it does not select the 119,080 figure as the result of a careful
evidentiary process but instead as a result of a simple arithmetic exercise. Since it
claims Uganda is responsible for 180,000 total civilian deaths, and since it claims
that Uganda is responsible for 60,920 civilian deaths in Ituri and Kisangani, that
must, in the DRC’s view, mean that Uganda is responsible for nearly 120,000
deaths elsewhere.
5.88 This reverse-engineered assertion does not come close to satisfying the
requirement to prove by convincing evidence the exact injury caused as a result of
the specific actions of Uganda. To the contrary, it is premised entirely on
speculative and arbitrary assertions (namely, that the conflict resulted in 400,000
violent deaths, for which Uganda bears 45% responsibility) that Uganda has refuted
already above.
194
5.89 Moreover, the large number of deaths claimed in locations other than Ituri
and Kisangani is, on its face, not credible. The DRC admits that the most serious
violence and fighting occurred in Ituri and Kisangani.597 It further admits that in
other locations UPDF forces were advancing “without any resistance”, and that the
UPDF’s “taking” of some places “was not marked by violent confrontations and
therefore did not result in extensive loss of life”598 or, in some places, any loss of
life at all.599 To argue nevertheless that Uganda caused twice as many deaths
outside Ituri and Kisangani as it did in those locations defies credulity.
5.90 The exorbitant nature of the DRC’s claim that Uganda caused the 119,080
civilian deaths outside Ituri and Kisangani is further highlighted by the DRC’s own
evidence. As stated, the tables included with the DRC Memorial purporting to
summarise the contents of the claims forms it gathered allegedly reflect a total of
5,893 deaths.600 Of the deaths claimed, only 684 (11.6%) allegedly occurred
outside Ituri and Kisangani: four in Gemena, 37 in Butembo and 643 in Beni.601
Again, Uganda is not even nominally identified as being responsible for any of
these deaths.
5.91 Notably, with respect to 561 of these 684 alleged deaths, the decedent is not
even identified. Rather, his/her identity is indicated with only the notation “non
597 Ibid., para. 0.17.
598 Ibid., para. 2.17 (Translation by Counsel, original in French: “ne se sont pas traduites par des
affrontements violents, et n’ont donc pas occasionné de dommages étendus en termes de pertes de
vies humaines.”).
599 See, e.g., Ibid., paras. 2.17, 2.19, 2.43.
600 “Rapport Décès Effectif/Ville de 1998 à 2003” in file Dommages Décès, DRCM Annex 1.3.
601 “Rapport Décès Effectif/Ville de 1998 à 2003” in file Dommages Décès, DRCM Annex 1.3.
195
signalé”.602 With respect to the remaining 134 decedents, there is no evidence (1)
showing their age and the date of death, or (2) indicating the cause of death.
Without such basic information, the DRC cannot hope to discharge its burden to
prove with convincing evidence the existence and extent of the injury for which it
claims compensation.
5.92 The unsupported nature of the 119,080 deaths claimed for locations other
than Ituri and Kisangani is still further highlighted by the UN Mapping Report.
5.93 The DRC Memorial cites, “for illustrative purposes”, a number of
international and NGO reports that refer to instances of deaths allegedly caused by
Uganda or rebel groups it supported in areas outside Ituri and Kisangani. Uganda
will not burden the Court by discussing each of those reports and the alleged
incidents reported in them. The UN Mapping Report was, as stated, based on a
review of the existing information conducted in 2008-2009. The UN Mapping
Team had available to it all of the individual reports the DRC cites. As such, the
information on deaths contained in the UN Mapping Report incorporates such
information from other sources that the Mapping team considered sufficient to give
rise to a “reasonable suspicion” that certain incidents took place.
5.94 A careful examination of the UN Mapping Report thoroughly undermines
the DRC’s claim that Uganda is responsible for 119,000 civilian deaths outside
Ituri and Kisangani. To the contrary, the UN Mapping Report suggests that, outside
Ituri and Kisangani, there is a reasonable suspicion that:
602 “Evaluation Décès” in file Victimes_Décès_BENI, DRCM Annex 1.3 (549 instances);
“Evaluation Décès” in file Victimes_Décès_BUTEMBO, DRCM Annex 1.3 (9 instances);
“Evaluation Décès” in file Victimes_Décès_GEMENA, DRCM Annex 1.3 (3 instances).
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 Approximately 49 deaths were caused solely by Uganda;603
 Another 100 deaths were caused by Uganda and militia/rebels during
joint operations;604 and
 Approximately 147 deaths were caused in fighting between
militia/rebels with UPDF participation, on the one hand, and other
militia/rebels with Rwandan or Congolese participation on the other
hand.605
5.95 Even if the UN Mapping Report were accepted at face value—which, due
to the relatively low standard of proof employed, Uganda submits that it should not
be—the total number of deaths for which Uganda is responsible outside Ituri and
Kisangani would be no more than 296.
Ituri
5.96 The DRC alleges that Uganda is responsible for 60,000 civilian deaths in
Ituri.606 To support this claim, the DRC cites to the second special report of the UN
Secretary-General on MONUC, which states: “Since the first major onslaught of
violence in June 1999, the death toll has been estimated at more than 60,000.”607
603 Calculated Number of Civilian Deaths between 7 August 1998 and 2 June 2003 (Source: U.N.
Mapping Report), Annex 110; U.N. Mapping Report, para. 347 (9), para. 348 (36), para. 349 (4),
Annex 25.
604 Calculated Number of Civilian Deaths between 7 August 1998 and 2 June 2003 (Source: U.N.
Mapping Report), Annex 110; U.N. Mapping Report , para. 402 (100), Annex 25.
605 Calculated Number of Civilian Deaths between 7 August 1998 and 2 June 2003 (Source: U.N.
Mapping Report), Annex 110; U.N. Mapping Report, para. 346 (24), para. 381 (7), para. 381 (24),
para. 383 (15), para. 385 (1), para. 392 (48), para. 443 (25), Annex 25.
606 DRCM, para. 3.23.
607 U.N. Security Council, Second special report of the Secretary-General on the United Nations
Organization Mission in the Democratic Republic of the Congo (MONUC), U.N. Doc. S/2003/566
(27 May 2003), Annex 3.6, para. 10; DRCM, para. 3.22 (Translation by Counsel, original in French:
“[d]epuis la première grande explosion de violence en juin 1999, il y a eu selon les estimations plus
de 60 000 morts.”).
197
On this basis—and this basis alone—the DRC submits: “It is thus the number of
60,000 killed that the Democratic Republic of Congo will use as the basis for this
part of the claim”.608
5.97 The DRC then asserts that out of these 60,000 civilians who allegedly died,
“40,000 persons were victims of deliberate violence directed against civilian
populations” and “20,000 represents the portion of the inhabitants of Ituri who lost
their lives under other circumstances related to the conflicts between 1998 and
2003.”609
5.98 Neither of these two allegations is supported by evidence of any kind, much
less convincing evidence proving them with a high degree of certainty.
5.99 There is literally nothing in the second special report of the Secretary-
General that directly or indirectly supports the conclusion that Uganda is
responsible for 60,000 deaths in Ituri. In the first instance, the report does not, on
its face, purport to be a definitive assertion of fact. To the contrary, the relevant
statement is preceded by the qualifier that “the death toll has been estimated at”610
the cited figure. The factual basis of this “estimate” is not stated. One thing is clear,
608 DRCM, para. 3.23 (Translation by Counsel, original in French: “C’est donc le nombre de 60.000
tués que la République démocratique du Congo retiendra comme base de cette partie de sa
réclamation”.).
609 Ibid. (Translation by Counsel, original in French: “les deux tiers (soit 40.000 personnes) ont été
victimes de violences délibérées dirigées contre les populations civiles. Le tiers restant (soit 20 .000
personnes) représente quant à lui la partie des habitants de l’Ituri qui ont perdu la vie dans d’autres
circonstances liées aux conflits qui ont déchiré cette région entre 1998 et 2003”.).
610 U.N. Security Council, Second special report of the Secretary-General on the United Nations
Organization Mission in the Democratic Republic of the Congo, U.N. Doc. S/2003/566 (27 May
2003), para. 10, DRCM Annex 3.6.
198
however: the statement does not purport to ascribe responsibility for those deaths
to Uganda.
5.100 This is significant because other portions of the second special report do
explicitly identify the parties responsible for violence. In the paragraph
immediately preceding the stated estimate of total deaths, for example, there is
reference to the fact
“that massacres of both Lendu and Hema have been
perpetrated in Ituri since February 2003. From 17
January to 6 March, in an attempt to take over full
control of the Ituri region, a militia group known as
the Union of Congolese Patriots (UPC) engaged in
large-scale military operations in four localities,
resulting in killings, destruction of property and the
displacement of a large number of people.”611
Uganda is not mentioned.
5.101 Moreover, later in the report, there is actually an indirect reference to
Uganda’s role in containing the violence. The Report observes that when Uganda
left, the violence grew worse:
“Immediately after the departure of UPDF from
Bunia, Hema- and Lendu-based militia groups
sought to establish control over the town, resulting
in violent clashes, often near United Nations
premises. The clashes were accompanied by
widespread looting, including of the premises of the
Office for the Coordination of Humanitarian
Affairs.”612
611 Ibid., para. 9.
612 Ibid., para. 16.
199
5.102 The DRC equally fails to submit any evidence supporting the allegation that
40,000 persons were victims of deliberate violence and 20,000 persons lost their
lives as a result of acts “other than deliberate violence”. This distinction appears to
be wholly arbitrary, as it does not even purport to be based on sources of any kind.
5.103 The arbitrary and speculative nature of the DRC’s claim that Uganda is
responsible for 60,000 deaths in Ituri is further highlighted by other material that
the DRC invokes for “illustrative purposes”, without actually relying on them to
establish the extent of the alleged injury.
5.104 In its Annex on Loss of Life in Ituri (Victimes_Decès_Ituri), a table
purporting to summarise the claims forms gathered by the DRC government, lists
only 4,164 deaths.613 This number differs from the number of deaths the DRC
claims (60,000) by more than an order of magnitude. But even this significantly
lower number lacks any credible basis.
5.105 First, as stated, the DRC has failed to submit its claims forms into evidence.
There is therefore no basis on which either Uganda or the Court can even attempt
to verify the correctness of the information ostensibly summarised.
5.106 Second, even if the claims forms had been produced, there is also reason to
believe that they lack probative value. They were gathered years after the events in
question, they were gathered for the purpose of litigation (with the ultimate
objective of compensation) and the DRC admits that they are often based on
613 “Evaluation Décès” in file Victimes_Décès_ITURI, p. 115, DRCM Annex 1.3. This number is
contradicted by the DRC’s own document which lists 4,502 as the number of victims in Ituri without
identifying them. See “Tableau de Synthèse Effectif Décès” in file Tableau Synthese Effectif
Deces_1998_à_2003, p. 4, DRCM Annex 1.3. This document only includes the number of persons
allegedly killed in different areas in Ituri. No evidence underlying the numbers is offered in the
DRC Memorial.
200
second-hand reports, which in some cases come from partisan sources or persons
who did not have clear memory about the events they reported.
5.107 The evidentiary shortcomings of the claims forms are also reflected in the
summaries contained in the annex. Out of the 4,164 victims claimed in Ituri, 3,827
are not even identified.614 Here again, they are simply listed as “non signalé”. Yet
as the EECC held: “There can be no assessment in a claim involving huge numbers
of hypothetical victims.”615 The compensation requested for those alleged victims
in the Annex is thus wholly speculative.
5.108 In addition to 3,827 unidentified victims, the DRC also lists in the Annex a
large number of alleged decedents (337) with names but without any information
about: (1) the cause of their death, (2) the alleged victims’ age, or (3) his/her date
of death.616 Without this evidence, it is impossible to establish that Uganda is
responsible for the alleged deaths.
5.109 The DRC also cites, again “for illustrative purposes”, a number
international and NGO reports that refer to instances of deaths allegedly resulting
from the actions of the UPDF in Ituri. As in the case of areas other than Ituri and
Kisangani, Uganda will not burden the Court by examining each of the cited
reports, all of which were available to the UN Mapping Team when it performed
its work in 2008-2009. The UN Mapping Report reflects all incidents the team
concluded there was a “reasonable suspicion” to believe took place.
5.110 A close review of the UN Mapping Report suggests that:
614 “Evaluation Décès” in file Victimes_Décès_ITURI, DRCM Annex 1.3.
615 Ethiopia’s Damages Claims (Final Award, 2009), para. 64.
616 “Evaluation Décès” in file Victimes_Décès_ITURI, DRCM Annex 1.3.
201
 Approximately 100 deaths were caused solely by Uganda in Ituri;617
 Another 988 deaths were caused by Uganda and militia/rebels during
joint operations;618 and
 Approximately 335 deaths were caused in fighting between
militia/rebels with UPDF participation, on the one hand, and other
militia/rebels with the Rwandan or Congolese participation, on the other
hand.619
5.111 Thus, even if the alleged incidents mentioned in the UN Mapping Report
are established, the total number of deaths in Ituri for which Uganda could be
deemed responsible is some 1,423.
5.112 Uganda recognises, of course, that in Ituri it is not only responsible for
losses of life in which the UPDF was directly involved. The Court found in the
2005 Judgment that Uganda failed to fulfill its duties of due diligence as an
occupying Power in Ituri to prevent the act of others.620 But the DRC cannot use
that finding to ascribe responsibility to Uganda for any and all deaths caused by
others in Ituri. Such deaths could only be attributed to Uganda if the DRC were to
show with “a sufficient degree of certainty that [those killings] would in fact have
been averted if [Uganda] had acted in compliance with its legal obligations” of an
occupying Power.621 The DRC Memorial does not, however, make any effort to
come forward with evidence sufficient to make that showing.
617 U.N. Mapping Report, para. 405 (100), Annex 25.
618 Ibid., para. 366 (25), 370 (10), para. 405 (105), para. 405 (25), para. 407 (225), para. 408 (6),
para. 408 (35), para. 408 (400), para. 409 (27), para. 411 (80), para. 417 (50).
619 Ibid., para. 369 (250), para. 412 (50), para. 421 (35), Annex 25.
620 See Chapter 4.
621 Bosnia and Herzegovina v. Serbia and Montenegro (2007), para. 462.
202
5.113 Uganda also recognises that the Court found in the 2005 Judgment found
that there was “persuasive evidence that the UPDF incited ethnic conflicts and took
no action to prevent such conflicts in Ituri district.”622 But here, too, this general
finding, made without reference to any specific evidence in the text of the
Judgment, is insufficient to ascribe responsibility to Uganda for any acts of killing
that resulted from ethnic violence between the Hema and the Lendu.
5.114 Consistent with its burden at this phase of the proceedings, the DRC must
come forward with evidence concerning specific acts of incitement by Uganda the
resulted in specific, identified deaths. The DRC has not just failed to meet this
burden, it has made absolutely no effort to do so. The Court’s prior general findings
therefore affords no basis on which to ascribe responsibility to Uganda for any
number of deaths resulting from ethnic violence.
5.115 Accordingly, the DRC’s claim that Uganda is responsible for 60,000 deaths
in Ituri is entirely baseless.
Kisangani
5.116 The DRC claims that Uganda caused 920 deaths in Kisangani.623
5.117 This claim, too, is without merit because not all the deaths that occurred in
Kisangani can be attributed to Uganda. The evidence the DRC submits in support
of its claim is also speculative and lacks credibility.
622 Armed Activities (2005), para. 209.
623 DRCM, para. 4.64.
203
5.118 With respect to the issue of attribution, the DRC seeks to ascribe
responsibility to Uganda for deaths caused by the DRC on the flawed theory that
Uganda provided “political and military assistance” to the rebel group that
“operated directly under [Uganda’s] command.”624 Yet the Court previously made
no finding that the RCD was under Uganda’s effective control. Nor was it
established that it was an organ of Uganda. The RCD’s conduct is therefore not
attributable to Uganda.
5.119 The DRC also impermissibly seeks to ascribe to Uganda responsibility for
all deaths caused by Rwanda and other rebel groups not supported by Uganda on
the equally flawed theory that those deaths would not have occurred “but for”
Uganda’s intervention in the DRC.625 For the reasons explained in Chapter 4,626
this theory of causation is too speculative; the notional causal link is simply too
attenuated to justify Uganda’s responsibility for deaths caused by Rwanda and the
rebel groups supported by Rwanda.
5.120 Turning to the DRC’s evidence, that evidence does not convincingly
support the conclusion that Uganda caused 920 deaths in Kisangani with a high
degree of certainty.
(a) August 1998-May 1999
5.121 For the period between August 1998 and May 1999, the DRC claims
Uganda is responsible for 26 deaths caused during fighting in August-September
624 Ibid., paras. 4.09, 4.11, 4.13 (Translation by Counsel, original in French: “[o]nt opéré
directement sous leur commandement.”).
625 Ibid., para. 4.14.
626 See Chapter 4, Section I(D).
204
1998 and an airstrike in January 1999.627 The DRC derives this number from the
reports of the Groupe Lotus, Groupe Justice et Liberation and COJESKI, which
were prepared many months after the events in question.628 Even setting that
threshold problem aside, these reports still do not support the DRC’s claim.
5.122 As regards the fighting in August-September 1998, the Groupe Lotus
reports that 10 civilians were killed.629 According to the Groupe Lotus, however,
those deaths were caused by “rebels” in confrontations with the FAC, not by
Uganda.630 There is therefore no factual basis to ascribe that alleged injury to
Uganda. (It also bears note that, addressing the same event, the Groupe Lotus
reported that the FAC killed many more civilians than the rebels did and—in
contrast to the rebels—offered no apology to the local population and provided no
compensation631).
5.123 As regards the airstrike in January 1999, the DRC relies on reports by
Groupe Justice et Libération632 and COJESKI,633 which present conflicting
numbers of persons killed (Groupe Justice et Libération refers to 10 deaths;
COJESKI mentions 12). The DRC adds the two figures together and removes
627 DRCM, para. 4.20.
628 Ibid.
629 Ibid.
630 Groupe Lotus, Rapport du Groupe Lotus de Kisangani (15 Oct. 1998), Sections 3.1, 3.2, DRCM
Annex 4.15.
631 Ibid.
632 Rapport du Groupe Justice et Libération, II (23 May 1999), p. 3, DRCM Annex 4.10 (b). Groupe
Justice et Libération reports 10 deaths resulting from the air strike of the Congolese air force.
633 Communiqué du 02 Août 1998, Reproduit en Annexe 3 du Rapport du Groupe Lotus de Kisangani
(15 Oct. 1998), DRCM Annex 4.11. COJESKI reports 12 deaths resulting from this incident.
205
duplicate names, and thus claims that Uganda is responsible for 16 deaths in the
airstrike.634
5.124 The reports cited are, however, of no assistance to the DRC because
responsibility for the deaths caused by the airstrike cannot be ascirbed to Uganda.
According to the UN Mapping Report’s account of that incident, “on 10 January
1999, a FAC plane apparently indiscriminately bombarded the town of Kisangani,
killing 12 civilians and wounding 27.”635 It is therefore the DRC itself that is
responsible for those deaths (assuming they actually happened), not Uganda.
(b) The August 1999 Confrontations
5.125 The DRC also seeks to ascribe approximately 100 civilian deaths to Uganda
resulting from the August 1999 confrontations between the APR and UPDF in
Kisangani. The DRC appears to have selected this number at random from different
sources, which present conflicting and unconfirmed numbers.
5.126 For example, the DRC claims that Groupe Lotus found that 100 civilians
were killed.636 In reality, however, Groupe Lotus itself expressed doubt about that
number, which it could not verify. It stated: “If we are to believe the humanitarian
organization sources, 63 civilians allegedly died. The figure remains disputable,
all the same, to the extent that certain bodies of civilians were found dressed in
634 DRCM, para. 4.20.
635 U.N. Mapping Report, para. 360 (“During the period under consideration, FAC planes
bombarded ANC/APR/UPDF positions in Orientale Province on several occasions. On 10 January
1999, a FAC plane apparently indiscriminately bombarded the town of Kisangani, killing 12
civilians and wounding 27”.), Annex 25.
636 DRCM, para. 427.
206
military uniforms.”637 Groupe Lotus then states that “other sources, on the other
hand, provide a provisional assessment of at least 100 civilians killed.”638 But
Groupe Lotus does not specify what those sources are or give any indication of
their reliability. Still less does it purport to verify that number itself.
5.127 The DRC also cites to a COJESKI report which stated that 175 persons
were killed during this time period. The DRC itself admits, however, that the report
does not distinguish between the deaths of soldiers and civilians.639 Moreover, the
COJESKI report is unreliable because it does not identify any names of those
killed, the locations of killings or perpetrators. Nor does the report explain the
methodology underlying it or whether it verified the stated numbers.640
5.128 The DRC’s selection of the 100 civilian deaths from those two
uncorroborated sources is all the more inexplicable in light of the lower number
stated in the UN Mapping Report. According to that report: “APR and UPDF
soldiers are said to have used heavy weapons in areas with a dense civilian
population as they fought to gain control of the town of Kisangani. The fighting
allegedly caused the deaths of over 30 civilians and wounded over 100 of them.
637 Groupe Lotus, Les conséquences de la contraction des alliances et factions rebelles au nord-est
de la RDC – La guerre de Kisangani, Sept. 1999 (op. cit.), Section II, para. 3.2 (Translation by
Counsel, original in French: “A en croire les sources humanitaires, 63 personnes civiles auraient
succombé. Le chiffre demeure tout de même discutable dans la mesure où certains corps des civils
étaient retrouvés vêtus en uniforme militaire”.), DRCM Annex 4.18.
638 Groupe Lotus, Les conséquences de la contraction des alliances et factions rebelles au nord-est
de la RDC – La guerre de Kisangani, Sept. 1999 (op. cit.), DRCM Annex 4.18.
639 DRCM, para. 4.27 citing to COJESKI, Dans les provinces occupées de la République
Démocratique du Congo : les violations massives des droits de l’homme et du droit international
humanitaire au seuil du paroxysme (Oct. 1999), p. 58, DRCM Annex 4.17.
640 Ibid.
207
The APR fired on both military targets and private homes belonging to civilians
suspected of supporting the Ugandans.”641
5.129 Accordingly, not only does the UN Mapping Report reveal a number that
is lower than that claimed by the DRC, it also suggests that not all those deaths
were caused by Uganda, especially given that Rwanda (unlike Uganda) targeted
private homes.
(c) The May 2000 Confrontations
5.130 The DRC claims that Uganda caused 30 civilian deaths during fighting
between the APR and UPDF on 5 May 2000.642
5.131 This number is derived from the lists of allegedly killed civilians that were
prepared by Groupe Lotus and Groupe Justice et Libération.643 Those lists do not
support the DRC’s claim, however. Other than listing the names of people allegedly
killed, they contain no evidence showing that those persons were actually killed or
that they were killed by Uganda.
5.132 As is true in so many other instances, the number the DRC claims is refuted
by the UN Mapping Report, which found there to be a reasonable suspicion that
“over 24” deaths resulted from the 5 May 2000 confrontations between APR and
UPDF.644 But here, too, the UN Mapping Report does not state that all those deaths
641 U.N. Mapping Report, para. 361, Annex 25.
642 DRCM, para. 4.34.
643 Ibid.; Jean-Pierre Badidike, ed., Guerre et droits de l’homme en République démocratique du
Congo, (2009), DRCM Annex 4.10. Pertes en vies humaines à Kisangani, les dommages résultant
des incidents d’août 1998 à la fin mai 1999, DRCM Annex 4.1.
644 U.N. Mapping Report, para. 362. Annex 25.
208
were caused by Uganda. Indeed, it observes that, unlike Rwanda, Uganda “warned
the population of the imminent bombardments and had asked for the evacuation of
several areas located close to their targets.”645 Thus, even if the figure of “over 24”
deaths reported in the UN Mapping Report were accepted (quod non), not all of
those deaths could be attributed to Uganda.
(d) The 5-11 June 2000 Confrontations
5.133 The DRC claims that Uganda is responsible for the deaths of 760 civilians
during the fighting between the APR and UPDF that took place between 5 and 11
June 2000. As support, it cites to various sources that report widely different
numbers of civilian deaths.646 From those various numbers, the DRC selects the
number 760 seemingly at random.
5.134 The DRC claims that this number results from the investigations of the 2000
Inter-Agency Assessment Mission to Kisangani that was established at the request
of the UN Security Council.647 However, the report of the Inter-Agency
Assessment Mission merely states that “over 760 civilians died” during the conflict
between Rwanda and Uganda. No evidence in support of this number is provided,
645 Ibid., paras. 361-364.
646 DRCM, paras. 4.41-4.42 (“The third report of the Secretary General on MONUC mission, on 12
June 2000 estimates the number of civilians killed at that time at 150 … the Special Rapporteur on
the situation of human rights in the DRC, Roberto Garreton [] believes that ‘[i]n addition to
casualties among the soldiers, about 1,000 Congolese civilians died… the inter-agency assessment
mission created at the request of the Security Council … indicate that … “more than 760 civilians
have been killed”’”.) (Translation by Counsel, original in French: “Le troisième rapport du
Secrétaire général sur la MONUC, en date du 12 juin 2000, fixe le nombre de civils tués à cette
occasion à 150 … le rapporteur spécial sur la situation des droits humains en RDC, Roberto
Garreton, estime quant à lui que, ‘[o]utre quelques combattants, près de 1000 Congolais ont trouvé
la mort … la mission d’évaluation inter-institutions créée à la demande du Conseil de sécurité des
Nations Unies … indique que … “plus de 760 civils ont été tués”’”.).
647 Ibid., para. 4.41.
209
nor is there any suggestion that Uganda is solely responsible for all of these alleged
deaths.648
5.135 The report of the Inter-Agency Assessment Mission also has to be read in
light of subsequent findings set forth in the UN Mapping Report, which found there
to be a reasonable suspicion that during 5-11 June 2000 the “two armies [of
Rwanda and Uganda] killed between 244 and 760 civilians”.649
5.136 This wide range calls into questions the number of deaths the DRC seeks
to ascribe to Uganda. As in so many other instances, the DRC seems merely to
have selected the highest possible number so as to maximise its claim.
5.137 Whatever the correct number is, not all the deaths can be attributed to
Uganda. This is especially true in light of the observation in the UN Mapping
Report that, unlike Rwanda, “the UPDF [during 5-11 June 2000] had taken steps
to avoid civilians losses by ordering the evacuation of combat zones before the start
of the hostilities and prohibiting access to three areas that were declared off-limits
to non-combatants.”650
*
648 U.N. Security Council, Report of the inter-agency assessment mission to Kisangani, U.N. Doc.
S/2000/1153 (4 Dec. 2000), paras. 14, 16, DRCM Annex 4.24.
649 U.N. Mapping Report, para. 363, Annex 25.
650 Ibid., paras. 363-364 citing to Groupe Lotus, the DRC also claims that Uganda is responsible for
four deaths of civilians killed by mines and explosives placed by Uganda during the war in
Kisangani. DRCM, paras. 4.56-4.57. However, the Groupe Lotus does not support that claim
because the report contains no information suggesting that mines and explosives were placed or left
by Uganda. Annex 25.
210
5.138 The DRC also attempts to substantiate its claim that Uganda is responsible
for 920 deaths in Kisangani by relying on various annexes containing summary
tables of those killed.
5.139 The DRC refers, for example, to Annex 4.5(a), which allegedly summarises
the work of its Commission of Experts established to identify the victims of
Uganda’s wrongful acts and the damages they suffered.651 That annex contains a
list of 922 persons allegedly killed by Uganda which, the DRC claims, is supported
by “an impressive amount of documentation [that] has been gathered on the basis
of the forms completed by the victims.”652
5.140 In fact, however, the DRC has not adduced even a single document to
support the contents of the table it presented in Annex 4.5(a). This table, like all
the others the DRC has submitted, has no probative value. Moreover, even taking
it at face value, it provides no information about the cause, date or place of death
for many of the putative decedents listed.653
5.141 The DRC also refers to Annex 4.6, another summary table that lists 701
persons as allegedly being killed. The DRC, however, offers no explanation how
or on what basis this list was created.654 It too is therefore without evidentiary
value.
651 DRCM, para. 4.60.
652 Ibid., paras. 4.59-4.60 (Translation by Counsel, original in French: “A ainsi été rassemblée une
documentation imposante, sur la base des formulaires remplis par les victimes.”).
653 See, e.g., République Démocratique du Congo, Commission d’Experts, Identification des
victimes et évaluation du préjudice personnes tuées, pp. 4, 12, 16, 18, 19, 20-25, DRCM Annex
4.5(a).
654 DRCM, para. 4.61.
211
5.142 The DRC further seeks to rely on a “data file, composed of more than
10,000 handwritten data sheets covering the victims in all territory of the DRC”
with “a financial assessment of damages.”655 The information from this “data file”
regarding Kisangani is reproduced in Annex 4.7(a), which lists 600 persons as
allegedly killed by Uganda. Here again, the DRC provides no supporting evidence
and offers no explanation how the damage was assessed. Moreover, 272 persons in
this table are not even identified.
5.143 The DRC’s claim that Uganda caused 920 deaths in Kisangani therefore
remains unproven.
Congolese Soldiers
5.144 In addition to the 180,000 civilian deaths for which the DRC claims Uganda
is responsible, it also contends that Uganda caused the death of 2,000 FAC
soldiers.656
5.145 Uganda observes in the first instance that the Court made no finding in the
dispositif of the 2005 Judgment or in its reasoning that Uganda was responsible for
the deaths of any Congolese soldiers. The Court’s findings related exclusively to
civilian deaths.657 The DRC’s claim in this respect therefore exceeds the scope of
the 2005 Judgment ratione materiae and the DRC is precluded from seeking
compensation for these alleged deaths.
655 Ibid., para. 4.62 (Translation by Counsel, original in French: “une évaluation financière des
dommages.”).
656 Ibid., paras. 7.14, 7.15.
657 Armed Activities (2005), para. 345(3).
212
5.146 Moreover, even if the DRC could recover for these alleged deaths (which
it cannot), the claim is unsupported by evidence. Indeed, it is not entirely clear how
the DRC arrives at the claimed total of 2,000 military deaths. The narrative portion
of the DRC Memorial makes only a reference to the deaths of 1,000 soldiers in
Equateur Province.658 The source cited, however, refers to the deaths of a lesser
number: 800.659 On what basis the DRC purports to increase this number first to
1,000 (in Chapter 2) and then to 2,000 (in Chapter 7) is not explained.
5.147 Moreover, the incident the DRC refers to involved fighting between the
FAC and the ALC (the armed wing of the MLC), not the UPDF. Yet, as Uganda
has recalled elsewhere, the Court specifically declined to find the conduct of the
MLC attributable to Uganda.660 The DRC therefore cannot claim compensation
from Uganda for deaths caused by the ALC.
5.148 The only other information included with the DRC Memorial that Uganda
has been able to locate that relates to the deaths of FAC soldiers is found in DRC
Annex 7.4, at page 1 (which is not cited in the text of the Memorial). This is yet
another unsigned summary table that was prepared under unknown circumstances
by unknown individuals that purports to list, inter alia, losses of life suffered by
the FAC in certain locations. The table purports to record 1,501 deaths, a number
which is then increased without explanation to an “estimate” of 2,000.661 Moreover,
other than the title of the document, which refers to military damages allegedly
658 DRCM, para. 2.56.
659 See Ibid., para. 2.55.
660 See supra, paras. 5.111, 5.112.
661 République Démocratique du Congo, Evaluation des dégâts militaires dans les rangs des
FARDC par l’armée ougandaise et alliés (31 Aug. 2016), p. 1, DRCM Annex 7.4.
213
caused by “Uganda and allies”662, there is nothing in the table that ties the claimed
deaths to Uganda. More fundamentally still, this summary table does not constitute
reliable evidence for all the reasons recalled elsewhere with respect to the DRC’s
other such tables. The DRC cannot claim compensation for these unproven deaths.
*
5.149 Accordingly, the DRC’s claims concerning the number of deaths resulting
from Uganda’s intervention are entirely speculative and unproven.
III. The DRC’s Valuation of the Injury Related to Loss of Life Is
Methodologically Flawed
5.150 The DRC’s valuation of the compensation it is due for the losses of life it
alleges are equally speculative and unproven.
5.151 As stated in the introduction to this chapter, the DRC adopts a two-tier
methodology for assessing compensation for the loss of life. It takes different
approaches depending on whether the alleged deaths resulted from what the DRC
terms “deliberate violence” or acts “other than deliberate violence”.
5.152 The DRC assesses its compensation for loss of life resulting from deliberate
violence based on compensation Congolese courts allegedly award families of
persons killed by the Congolese government in the context of serious crimes
against international law.663 Such compensation, according to the DRC, varies from
US$ 5,000 to US$ 100,000, with the average amount allegedly being US$
662 Ibid.
663 DRCM, para. 7.12.
214
34,000.664 The DRC then multiplies this number by the alleged number of victims
of deliberate violence (40,000) to arrive at a compensation claim in the amount of
US$ 1.36 billion.665 This US$ 34,000 multiplier is just as arbitrary and unproven
as the DRC’s claim concerning the number of alleged victims
5.153 Uganda observes in the first instance that the DRC cites no authority for the
proposition that the appropriate measure of compensation in this Court should be
determined by reference to the decisions of the claimant State’s domestic courts.
The only justification the DRC Memorial offers for using this approach is (as with
so many other elements of its claim) the bare subjective assertion that it considers
it “reasonable” to do so.666
5.154 Moreover, even if DRC municipal law were relevant to the issues now
before the Court, the content of that law is an issue of fact that must be proven
through evidence.667 The DRC has not done so, however. It has not adduced even
a single judgment or other document from its domestic courts demonstrating the
amount of compensation they awarded, still less has it produced information from
which it can be concluded that the “average” award equates to the US$ 34,000 that
the DRC claims. There is no therefore no evidence before the Court proving either
that the amount of compensation awarded by the Congolese courts range from US$
5,000 to US$ 100,000, or that the average amount of such compensation is the US$
34,000 claimed.
664 Ibid.
665 Ibid., para. 7.13.
666 Ibid., para. 7.12.
667 Certain German interests in Polish Upper Silesia, Merits Judgment, 1926, P.C.I.J. Reports,
Series A, No. 7, p. 19.
215
5.155 At the same time, the DRC itself revealingly underscores the apparent
arbitrariness of the numbers on which it wishes to rely. The DRC Memorial admits
that “the grounds” for compensation awarded by the Congolese courts “often
remained brief” and that some judgments were “entirely unfounded or manifestly
arbitrary.”668 It is also ironic that the DRC relies on compensation its domestic
courts awarded against the Congolese government, given that the government,
according to the UN Mapping Report, has consistently refused to honor those
judgments.669
5.156 The DRC’s quantification of the damages due loss of life resulting from
acts other than deliberate violence is equally unsupported. The DRC purports to
calculate the amount of compensation due based on the future income that a
decedent would have received had he/she lived to the age of the average life
expectancy in the DRC.670 According to the DRC, such future income for each
victim is US$ 18,913.671
5.157 The DRC gets to this number by multiplying two variables: (1) the average
years of life a victim lost (which it claims is 25.11 years), and (2) the average
income expected for those years (for which the DRC uses its putative 2015 GDP
per capita of US$ 753.20).672 Both variables in this formula are unfounded.
5.158 The DRC calculates the average years of life lost by alleged victims (25.11
years) by subtracting “the average age of victims, as determined based on the files
668 DRCM, para. 7.08 (Translation by Counsel, original in French: “totalement dépourvus de
motivation ou manifestement arbitraire.”).
669 U.N. Mapping Report, paras. 46-53, Annex 25.
670 DRCM, para. 7.09.
671 Ibid.
672 Ibid.
216
drawn up by the DRC’s investigators” (allegedly 27)673 from the average “life
expectancy in the DRC in 2003” (allegedly 52.11 years).
5.159 Uganda does not dispute that the life expectancy figure on which the DRC
relies is generally accurate. According to publicly available information on the
WHO website, the average life expectancy in the DRC between 2000 and 2003
increased from 51.3 years to 52.8 years.674
5.160 The claimed average age of the alleged victims (27 years) is, in contrast,
deeply problematic. As stated, the DRC alleges that this number was “determined
based on the files drawn up by the DRC’s investigators.”675 Yet the DRC offers no
explanation as to exactly what files were used, how they were drawn up and how
that nominal average was determined. There is therefore no basis to credit, much
less verify, this assertion.676
5.161 The DRC’s calculation is also based on a flawed assumption that all of the
alleged victims, no matter what their age, their status within a family or their actual
earning potential, would have be fully employed at all times up to the date of the
deaths. This assertion is facially untenable for obvious reasons.
673 Ibid.
674 World Health Organization, Life expectancy, Data by country, available at
http://apps.who.int/gho/data/node.main.688?lang=en (6 June 2016), Annex 97. The data do not
include information for the years prior to 2000.
675 DRCM, para. 7.09 (Translation by Counsel, original in French: “déterminé sur la base des fiches
établies par les enquêteurs de la RDC.”).
676 To the extent the DRC refers to claims forms and other materials summarised in its annexes on
alleged loss of life, Uganda has demonstrated above that the DRC failed to identify a great number
of the alleged victims and provided no evidence concerning the date of birth and date of death for
a great number others. The DRC’s summary tables therefore no basis for calculating the average
the DRC claims.
217
5.162 As regards the second variable in the DRC’s equation—the average income
of an alleged victim—the DRC’s use of its 2015 per capita GDP (allegedly US$
753.20) as a proxy for expected annual income is equally baseless. In the first
instance, the DRC has got the number wrong. According to World Bank data not
cited by the DRC, its GDP per capita in 2015 was US$ 475 (expressed in current
US dollars), nearly 37% less.
5.163 Moreover, it is plainly inappropriate to use a number from 2015 to calculate
a figure applicable to the 1998-2003 time period. (According to the World Bank,
the DRC GDP per capita was US$ 139 in 1998 and US$ 174 in 2003. Both figures
are expressed in current US dollars).
5.164 At an even more fundamental level, GDP per capita cannot be used as a
proxy for a person’s expected income because it is not, nor does it reasonably
approximate, average individual income. To the contrary, GDP per capita is
nothing more than a ratio, or fraction. The bottom part of the fraction, the
denominator, is the total population of the country; the top part of the fraction, the
numerator, is total GDP.
5.165 An IMF official has usefully explained what GDP actually measures:
“GDP measures the monetary value of final goods
and services—that is, those that are bought by the
final user—produced in a country in a given period
of time (say a quarter or a year). It counts all of the
output generated within the borders of a country.
GDP is composed of goods and services produced
for sale in the market and also includes some
218
nonmarket production, such as defense or education
services provided by the government”.677
5.166 Total GDP thus includes much more than just the income earned by
individuals in the country. It also includes “all of the output generated within the
borders of a country.” It includes the value generated, and income earned, by
business entities and even by the government. It also includes wealth generated
within a country but that did not stay in the country, such as the profits of foreignowned
businesses.
5.167 The Organization for Economic Co-operation and Development (“OECD”)
puts it this way:
“GDP per capita, by design an indicator of the total
income generated by economic activity in a country,
is often used as a measure of people’s material wellbeing.
However, not all of this income necessarily
ends up in the purse of households. Some may be
appropriated by government to build up sovereign
wealth funds or to pay off debts, some may be
appropriated by firms to build up balance sheets, and
yet some may be appropriated by parent companies
abroad repatriating profits from their affiliates.”678
5.168 Because GDP per capita includes many elements of income unrelated to
individual income (such as government and business income), as well as funds
repatriated to other countries, it substantially overstates any reasonable estimate of
individual income. A firm of economic forecasters has explained: “GDP per capita
is an important indicator of economic performance and a useful unit to make cross-
677 Tim Callen, International Monetary Fund, Gross Domestic product: An Economy’s All, available
at http://www.imf.org/external/pubs/ft/fandd/basics/gdp.htm (29 July 2017), Annex 99.
678 OECD Insights, Debate the Issues, Statistical Insights: What does GDP per capita tell us about
households’ material well-being?, available at http://oecdinsights.org/2016/10/06/gdp-per-capitahouseholds-
material-well-being (6 Oct. 2016), Annex 98.
219
county comparisons of average living standards and economic wellbeing.
However, GDP per capita is not a measure of personal income”.679
5.169 A more appropriate measure of average individual earnings would be per
capita income. Unfortunately, World Bank statistics are not available for the DRC.
Although the Bank attempts to track per-capita household income for each country
in its database of “World Development Indicators,” the relevant fields are blank for
the DRC.680 Data concerning per capita income in the DRC must therefore come
from other sources.
5.170 Fortunately, there are a number of existing estimates of per capita income
in the DRC, all of which are fairly consistent with one another—and inconsistent
with the amount claimed in the DRC Memorial. The DRC itself has, in other
settings, offered estimates of average individual income in the country. All of these
estimates are significantly lower than what it now claims as a measure of annual
income:
 In the context of explaining the burden faced by DRC citizens battling
HIV and AIDS, a July 2006 report on poverty reduction prepared by the
Government of the DRC states: “With annual incomes just shy of
US$100 a year per capita, the annual cost of anti-retroviral (ARV)
treatment of US$360 per person represents a burden, putting care out of
679 FocusEconomics, What is GDP per capita?, available at https://www.focuseconomics.
com/economic-indicator/gdp-per-capita (last accessed 24 Jan. 2018) (emphasis added),
Annex 103.
680 The World Bank, World Development Indicators, available at
http://databank.worldbank.org/data/reports.aspx?source=world-developmen… (last
accessed 31 Jan. 2018).
220
the reach of the majority of affected households and the family
solidarity network.”681
 Another DRC government report cited by the United Nations estimates
that per capita income per day declined sharply from the 1970s to 2004,
noting that it was US$ 0.30 in 1998, and less than US$ 0.20 (or US$ 73
per year) in 2004.682
5.171 Reports by other credible authorities also include estimates of per capita
income in the DRC that are approximately the same—and far lower than the US$
753 figure relied on by the DRC. In a 2007 report, for example, the UN Economic
and Social Council (“ECOSOC”) noted that “UNICEF, in its 2007 programme
document for the DRC, estimates annual per capita income at US $120.”683
5.172 The DRC’s claim that a victim’s lost income would have averaged US$
753/year is therefore starkly at odds with figures published by the DRC itself and
other bodies. The proposed figure is also impossible to square with the DRC
government’s repeated, detailed acknowledgements of the country’s poverty and
wide-spread unemployment. The DRC government’s “Poverty Reduction and
Growth Strategy Paper” from July 2006 includes a large number of facts that speak
to the depth of the country’s problems, including:
681 Democratic Republic of the Congo, Poverty Reduction and Growth Strategy Paper (July 2006),
para. 174 (emphasis added), Annex 59.
682 U.N. Economic and Social Council, Implementation of the International Covenant on Economic,
Social and Cultural Rights: Combined second, third, fourth and fifth periodic reports submitted by
States parties under articles 16 and 17 of the Covenant, Democratic Republic of the Congo, U.N.
Doc. E/C.12/COD/5 (14 Aug. 2007) (hereinafter, “ICESCR Report”), para. 111, Annex 22 citing
to the DRC Ministry of Planning, “Poverty Reduction Strategy Document”, (Feb. 2004), p. 11, point
2.2, section 23; p. 5, section 3.
683 ICESCR Report, para. 111 (emphasis added), Annex 22.
221
 “The human development indicators (education, health, access to
socioeconomic goods and services) as well as indicators on the
prevalence of HIV/AIDS, living conditions, and social protection, not
only confirm the foregoing diagnosis [of extreme poverty], but also
establish that poverty in the DRC is a generalised, chronic, mass
phenomenon. The diagnosis further establishes that the individual and
collective factors which explain poverty and the vulnerability of the
people are, among others: (i) family structure; (ii) education level (of
the head of household or parents); (iii) employment status; and (iv) the
province of residence”.684
 “For the country as a whole, the incidence of poverty (71.34 percent) is
extremely high by comparison with the other countries of central
Africa. The same holds true regarding the depth (32.23 percent) and
severity (18.02 percent) of poverty”.685
5.173 The Government of the DRC also issued a “Second Generation” report on
poverty reduction in 2011, 686 which paints a similarly bleak picture:
 “In the DRC, seven out of ten households are poor with a disparity
between rural areas — where about eight out of ten households are poor
684 Democratic Republic of the Congo, Poverty Reduction and Growth Strategy Paper, (July 2006),
para. 9, Annex 59.
685 Ibid., para. 58.
686 République Démocratique du Congo, Document de la Stratégie de Croissance et de Réduction
de la Pauvreté, Deuxième Génération, 2011-2015, Vol. I (Oct. 2011), para. 20 (“It should be noted
that the analysis of the poverty profile made in this document is based on data obtained from the
Survey 1-2-3 of 2005, excluding recent surveys”.) (Translation by Counsel, original in French: “Il
importe de préciser que cette analyse du profil de pauvreté faite dans ce document est basée sur les
données de l’enquête 1-2-3 de 2005, en absence de nouvelles enquêtes”.), Annex 42.
222
— and urban areas — where fewer than seven out of ten households are
poor”.687
 “The issue of employment is a major concern of the growth and poverty
reduction strategy in the DRC. Survey 1-2-3 of 2005 shows that most
poor people are unemployed or under-employed. Besides, we deplore
the high number of child laborers and a high rate of unemployment
among the population range of 15-35 years”.688
(The DRC Memorial contends that decedents were, on average, 27
years old at time of death. This would place them within this bracket of
the disproportionately unemployed.)
5.174 A 2007 ECOSOC report689 tells a similarly dire story concerning the extent
of unemployment:
 “In 2000, 2% of the total population (4% of the workforce and 8% of
the male workforce) was employed”.690
 “Employed workers represent 7%: this low proportion indicates the
collapse of modern employment in the DRC. The employee portion of
the workforce was 8% in 1958, falling to 2% in 1997”.691
687 Ibid., para. 17 (Translation by Counsel, original in French: “En RDC, sept ménages sur dix sont
pauvres avec une disparité entre milieu rural – où environ huit ménages sur dix sont pauvres – et
milieu urbain — où moins de sept ménages sur dix sont pauvres”.).
688 Ibid., para. 238 (Translation by Counsel, original in French: “La question de l’emploi constitue,
une préoccupation majeure de la stratégie de croissance et de réduction de la pauvreté en RDC.
L’enquête 1-2-3 de 2005 montre que la plus part des pauvres sont au chômage ou en situation de
sous-emploi. Par ailleurs, on déplore le nombre élevé d’enfants travailleurs et un taux élevé de
chômage qui frappe la tranche de la population de 15-35 ans”.).
689 ICESCR Report, Annex 22.
690 Ibid., para. 58.
691 Ibid., para. 61.
223
5.175 Setting all of these issues aside, and assuming that all of the alleged
decedents in the DRC were gainfully employed and that average income—not GDP
per capita—were an appropriate starting point for assessing the amount of
compensation due for a wrongful death, it would not be the ending point.
5.176 From a purely economic perspective, the objective of the damages
calculation should be to place survivors in the same position that they would have
been in, had the decedent’s life not ended prematurely. Notably, this is exactly the
approach the U.K. followed—and the Court accepted— in the Corfu Channel case.
Economists who specialise in the valuation of human life have observed that, in
valuing life from the perspective of a decedent’s family, amounts that would have
been spent on the decedent’s own consumption, or otherwise would not have inured
to the benefit of survivors, should be subtracted from his/her expected future
income.692 This ensures that survivors do not receive a “windfall” in the form of
monies they would not have received had the decedent lived.
5.177 Economist Burton Weisbrod, for example, valued life on the basis of
“expected earnings net of consumption, based on the notion that when an individual
dies not only is productive contribution lost, but also claims on future
692 Even some economists who would not deduct the decedent’s own consumption for all valuation
purposes may agree that it should be deducted if the objective is to quantify the economic impact
of death on a person’s household. Rashi Fein agreed that “the net figure (gross value less
consumption) derived by Dublin and Lotka to indicate the money value of a man to his family is
correct for their purposes… It is true that man consumes partly in order to maintain himself, and in
this sense some of his consumption may be considered as a gross investment to take care of
depreciation…”. D. Rice, B. Cooper, “The Economic Value of Human Life”, American Journal of
Public Health, Vol. 57, No. 11 (Nov. 1967), p. 1959 quoting and citing to Rashi Fein, Economics
of Mental Illness (New York, Basic Books, 1958). For Fein’s own purposes, however, that
deduction was inappropriate, as he was valuing the loss of the person “to society,” not (as we are
doing here) to his or her family, Annex 70.
224
consumption.”693 And in another frequently cited work, economists Dublin and
Lotka “defined the money value of man as the present value of his net future
earnings, i.e., gross future earnings less that part which he consumes or spends on
himself.”694
5.178 As Uganda has emphasised throughout this Chapter, the DRC has presented
no evidence proving with any degree of particularity the number of people who
died as a result of Uganda’s wrongful actions, or their identity, age at death,
employment status or income (if any). Still less has the DRC provided any evidence
from which even an approximation may be made of the portion of the earnings of
a Congolese citizen that go towards supporting his/her own needs. There is
therefore no basis quantifying the extent of the necessary deduction.
5.179 The only thing that may be concluded with certainty is that the figure for
average annual income—which DRC reports suggest was approximately US$
73/year in 2004 and “just shy of” US$ 100/year in 2006—must be reduced by some
margin to yield a genuine measure of the value a decedent would have contributed
to his/her family in the course of a year. Moreover, whatever unproven figure might
be deemed more appropriate, the US$ 753/year amount claimed by the DRC is
plainly unsustainable.
*
693 Burton A. Weisbrod, Economics of Public Health (1961), as characterised by J. S. Landefeld, E.
Seskin, “The Economic Value of Life: Linking Theory to Practice”, American Journal of Public
Health, Vol. 72, No. 6 (June 1982), p. 556, Annex 71.
694 D. Rice, B. Cooper, “The Economic Value of Human Life”, American Journal of Public Health,
Vol. 57, No. 11 (Nov. 1967), p. 1955, Annex 70, referring to Louis I. Dublin and Alfred J. Lotka,
The Money Value of a Man (New York, Ronald Press, 1946), Chap. 2, pp. 6-21.
225
5.180 For all the reasons explained in this chapter, both the DRC’s claims
concerning the number of deaths resulting from Uganda’s intervention and its
attempts to place a value on each life lost are wholly speculative and unproven.
226
227
CHAPTER 6
THE DRC’S CLAIMS RELATING TO PERSONAL INJURIES OTHER
THAN LOSS OF LIFE ARE UNSUPPORTED AND
METHODOLOGICALLY FLAWED
6.1 The DRC seeks US$ 304,775,800 in compensation for personal injuries
other than loss of life that it alleges were caused by Uganda. This amount includes:
 US$ 54,464,000 for physical injuries;695
 US$ 33,458,000 for sexual violence;696
 US$ 30,000,000 for the recruitment, training and use of child soldiers;697 and
 US$ 186,853,800 for displaced persons.698
6.2 Like the DRC’s claims with respect to loss of life, these claims are both
methodologically flawed and entirely speculative. The DRC has failed to prove
specific acts attributable to Uganda that resulted in specific personal injuries, let
alone proven the valuation of such injuries, just as it failed to do so with respect to
loss of life. As such, the DRC has given the Court no basis on which to award it
the compensation it seeks under this head of damages.
6.3 Section I of this Chapter will demonstrate that the DRC’s claims are not
based on the standard methods or evidence for proving personal injuries in
international law. Section II shows that the DRC has not proven specific acts
695 DRCM, para. 7.21.
696 Ibid., para. 7.25.
697 Ibid., para. 7.28.
698 Ibid., para. 7.32.
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attributable to Uganda that resulted in specific personal injuries. Finally, Section
III explains why the DRC’s valuation of the alleged personal injuries is not based
on evidence and methodologically flawed.
I. The DRC’s Claims Are Not Based on Standard Methods or
Evidence for Claiming Compensation for Personal Injuries
6.4 As was true with respect to the DRC’s claims concerning loss of life, it is
important to underscore at the outset that the DRC’s personal injury claims are not
based on the standard methods for proving the existence and valuation of such
injuries that have long been employed by States and international courts and
tribunals.
6.5 A review of that practice indicates that the method for proving
compensation claims for personal injury entails several elements, including: (1)
identification of the persons who are alleged to have been injured; (2) details of the
harm, such as the location and date of injury, and information concerning the nature
of the injury; (3) evidence establishing a causal link between the injury and the
conduct of the respondent; (4) determination of which victims were gainfully
employed and, if so, the extent to which the injury resulted in a loss of earnings;
and (5) the costs of care and other expenses stemming from the injury.699
699 See generally Edwin M. Borchard, The Diplomatic Protection of Citizens Abroad or the Law of
International Claims (1916); Jackson H. Ralston, The Law and Procedure of International
Tribunals (1926); Marjorie M. Whiteman, Damages in International Law (1937); A. H. Feller, The
Mexican Claims Commissions, 1923-1934: A Study in the Law and Procedure of International
Tribunals (1935); Green H. Hackworth, ed., Digest of International Law, Vol. 5 (1943); Richard
Lillich, ed., International Law of State Responsibility for Injuries to Aliens (1983); Christine Gray,
Judicial Remedies in International Law (1987). See also Prosecutor v. Thomas Lubanga Dyilo,
Case No. ICC-01/04-01/06, Décision fixant le montant des réparations auxquelles Thomas Lubanga
Dyilo est tenu (ICC Trial Chamber II, 15 Dec. 2017) (hereinafter “Lubanga, Reparations Decision
(15 Dec. 2017)”), pp. 37, 40; Afro-Descendant Communities Displaced From the Cacarica River
Basin (Operation Genesis) v. Colombia, Judgment, Preliminary Objections, Merits, Reparations,
229
6.6 These elements are typically proven through documentary evidence
contemporaneous with the alleged injury, supplemented by sworn affidavits by
persons who were injured or who treated the injuries, as well as local leaders
familiar with the incidents at issue. Loss of earnings are typically established either
through evidence specific to the victim’s actual past earnings or through evidence
specific to the class of persons employed in the victim’s occupation. Costs of care
and other expenses are established through clinical, hospital or other medical
records, or affidavits by the victims or medical professionals.
6.7 This approach to methodology and evidence is readily observable in the
Court’s award of compensation for personal injuries in the Corfu Channel case,700
as discussed in Chapter 3. So, too, can it be seen in the practice of regional human
rights courts,701 the reparations decisions of the ICC,702 and in claims settlement
agreements negotiated between States.703
6.8 In cases of sexual violence and other personal injuries before the Inter-
American Court of Human Rights, for example, victims have presented medical
and psychological evaluations,704 birth certificates, detailed affidavits, employment
and Costs (IACtHR, 20 Nov. 2013) (hereinafter “Afro-Descendant Communities Displaced (20
Nov. 2013)”).
700 Corfu Channel (Compensation, 1949, p. 244).
701 See Dinah Shelton, Remedies in International Human Rights Law (2015), pp. 315-375.
702 Lubanga, Reparations Decision (15 Dec. 2017); Prosecutor v. Germain Katanga and Mathieu
Ngudjolo Chui, Case No. ICC-01/04-01/07-3728, Order for Reparations pursuant to Article 75 of
the Statute (ICC Trial Chamber II, 24 Mar. 2017).
703 See generally Richard Lillich, International Claims: Postwar British Practice (1967); Burns H.
Weston, International Claims: Postwar French Practice (1971); B. Weston & R. Lillich,
International Claims: Their Settlement by Lump Sum Agreement (1975); Burns H. Weston et al.,
International Claims: Their Settlement by Lump Sum Agreements, 1975-1995 (1999).
704 See, e.g., Case of Loayza-Tamayo v. Peru, Judgment, Reparations and Costs (IACtHR 27 Nov.
1998), paras. 29-32.
230
records, evidence of earnings (such as pay slips), documents pertaining to other
expenses (such as medication) and other records.705 Eritrea and Ethiopia presented
similar evidence before the EECC, which concluded that detailed eyewitness
accounts, corroborated by the testimony of doctors who personally treated victims
of rape, were the most compelling.706 At the same time, it dismissed claims of
sexual violence that were “spare in their mention of or allusion to rape”.707
6.9 Victims of displacement and former child soldiers, including in the DRC,
have also presented these types of evidence before other international courts. The
531 displaced victims in the Operation Genesis case at the Inter-American Court
of Human Rights, for example, produced a large quantity of evidence showing the
details of the harm they suffered and the causal connection to the wrongful conduct
of the respondent State (Colombia).708 This evidence included:
 Affidavits with concrete details about the circumstances of
displacement and accommodation in shelters, including details about
overcrowding, poor sleeping conditions, lack of privacy, and the lack
of food and water;709
 Statements by witnesses and demobilised paramilitaries to the
Prosecutor’s office710 and court documents (such as a detention order
705 Ibid., para. 41; Case of Molina-Theissen v. Guatemala, Judgment, Reparations and Costs
(IACtHR 3 July 2004), paras. 52-53.
706 Eritrea’s Central Front Claims, Partial Award, Eritrea-Ethiopia Claims Commission, Eritrea’s
Claims 2, 4, 6, 7, 8 & 22 (28 Apr. 2004), para. 80.
707 Ethiopia Western-Eastern Front Claims, Partial Award, Eritrea-Ethiopia Claims Commission,
Ethiopia’s Claims 1 & 3(19 Dec. 2005), para. 55.
708 Afro-Descendant Communities Displaced (20 Nov. 2013), paras. 411, 415, 417.
709 Ibid., para. 118.
710 Ibid., para. 112, note 205.
231
and other criminal court decisions711) to show that the operation was
part of a strategy to occupy territories and “to cause terror in order to
forcibly evict the non-combatant civilian population”;712 and
 Detailed estimates of their lost earnings (as well as of lost property).713
6.10 As discussed in Chapter 5, the ICC has assessed reparations in the specific
context of armed conflict in the DRC, notably in its 2017 decisions in the Katanga
and Lubanga cases. In Katanga, a number of applicants claiming damages for
forcible displacement provided documentary evidence establishing the existence of
the harm they alleged in the form of refugee cards or refugee family certificates
(often from Uganda). Even then, however, the Chamber concluded that the causal
link to Mr Katanga was not proven.714 It was therefore “not in a position to connect
that material and/or psychological harm” to the specific attack of which Katanga
was convicted.715
6.11 In the ICC’s recent decision on reparations in the Lubanga case, which
related to the recruitment of child soldiers in Ituri, many of the 473 claimants
presented documents proving their identity,716 and details of their experience,
through signed declarations, collaborating witness testimony, photographs and
711 Ibid., paras. 114, note 211, paras. 112, notes 206, 211.
712 Ibid., para. 114.
713 Ibid., para. 466.
714 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07-3728,
Order for Reparations pursuant to Article 75 of the Statute (ICC Trial Chamber II, 24 Mar. 2017),
para. 111.
715 Ibid., para. 138. One applicant, Applicant a/0013/08, presented a hospital record showing his
admission to a hospital, dated 26 February 2003, and a photo of himself with a bandage. Ibid.,
Annex II, paras. 1961-1963. The date and place of the record showed that it was connected to the
attack on Bogoro. Another applicant, Applicant a/1205/10, submitted a forensic report showing that
she suffered a physical injury during the specific attack. Ibid., paras. 2741-2743.
716 These included Voter Identification Cards, Personal Tax Cards (Cartes d’impot personnel), and
student IDs. Lubanga, Reparations Decision (15 Dec. 2017), para. 68.
232
certificates of demobilisation.717 To prove the causal link to Mr Lubanga’s conduct,
claimants were required to demonstrate that they were recruited by, or participated
in, the activities of the UPC or the FLPC between 1 September 2002 and 13 August
2003, and were less than 15 years old during that time period.718 Many were able
to provide the necessary evidence in the form of affidavits, witness statements,
identification cards, photographs and certificates of demobilisation.719
6.12 The DRC has entirely failed to provide any comparable evidence in this
case. It has not provided documents (1) identifying the persons alleged to have been
injured; (2) describing details of the injury; (3) establishing a causal link between
the injury claimed and conduct attributable to Uganda; or (4) describing details of
the loss of earnings or costs of care and other expenses. It eschews any effort at
specificity, relying instead on very general assertions contained in uncorroborated
sources, along with arbitrary multipliers and outright guesswork.
II. The DRC Has Failed to Prove the Extent Personal Injuries That Were
Suffered
as a Result of Specific Actions of Uganda
6.13 In the following sections, Uganda will show how the DRC has failed to
prove specific acts attributable to Uganda that resulted in particular personal
717 Ibid., para. 44. A number of claimants presented pictures of themselves as children dressed in
military uniforms or with tattoos showing membership to a militia, certificates of demobilisation
from an armed group and declarations from village elders showing the link between the injury and
the membership to the militia. Ibid., paras. 44 and 62. The Congolese National Commission on
Demobilization and Reinsertion (CONADER) and several NGOs provided certificates of
demobilisation to demobilised child soldiers. Ibid., para. 98. The Chamber was able to analyse the
internal coherence of the claimants’ declarations, and paid attention to their level of detail, including
locations, dates, names, living conditions, and circumstances of recruitment and departure. Ibid.,
paras. 63, 64.
718 Ibid., para. 66.
719 Ibid., paras. 42, 63-68.
233
injuries, which includes (A) physical injuries, (B) sexual violence, (C) child
soldiers and (D) displacement. For each of these categories, Uganda notes that the
DRC does not present any evidence, let alone convincing evidence, that
systematically recounts incidents resulting in personal injuries that occurred in
specific places and at specific times to specific persons, and involved Ugandan
military forces or other actors whose conduct the DRC demonstrates to be
attributable to Uganda. Nor does the DRC make any effort to provide any
information as to the exact nature of the injuries allegedly suffered, other than
breaking out general categories with respect to sexual violence, child soldiers and
displacement.
6.14 Instead, as was the case with its claims concerning loss of life, the DRC
pursues a strategy that essentially invokes the Court’s general findings in the 2005
Judgment as, by themselves, the basis for proving the DRC’s claims to reparation.
The DRC offers only very general information, much of it of dubious credibility,
with a few incidents noted for “illustrative” purposes, in the hope that the Court
will engage in extrapolation to award it compensation on a massive scale. Yet,
consistent with the established jurisprudence, the Court has already indicated that
this is not enough. The DRC bears the burden at this phase “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.”720 The DRC
does not meet that burden.
720 Armed Activities (2005), para. 260 (emphasis added).
234
A. THE DRC HAS FAILED TO PROVE THE NUMBER, NATURE AND EXTENT OF PHYSICAL INJURIES THAT WERE SUFFERED AS A RESULT OF SPECIFIC ACTIONS OF UGANDA
6.15 The DRC alleges that Uganda caused physical injuries to 32,140 people.721
This includes an alleged 20,000 victims of “deliberate violence” in Ituri and an
alleged 12,140 victims of acts “other than deliberate violence” in Ituri, Kisangani
and other areas.722
6.16 The appropriate starting point for evaluating these claims must, of course,
be what the Court did—and did not—find in its Judgment on the merits.
6.17 In the dispositif of the 2005 Judgment, the Court found that Uganda’s armed
forces violated human rights and international humanitarian law by committing
“acts of… torture and other forms of inhumane treatment of the Congolese civilian
population”.723 The Court also found that Uganda’s military “failed to distinguish
between civilian and military targets and to protect the civilian population in
fighting with other combatants” and “incited ethnic conflict.”724 In addition, the
Court also determined that Uganda failed, as an occupying Power in Ituri, to take
measures to respect and ensure respect for human rights and international
humanitarian law.725 Apart from these general findings, the Court did not explicitly
mention physical injuries in the dispositif.
721 DRCM, paras. 7.18-7.21 (Translation by Counsel, original in French: “attaques délibérées”; “en
dehors des situations où les populations civiles ont été spécifiquement visées par des actes de
violence”.).
722 Ibid.
723 Armed Activities (2005), para. 345(3).
724 Ibid.
725 Ibid., para. 345(1).
235
6.18 At this stage, the DRC bears the burden to prove the exact injuries that were
suffered as a result of specific actions of Uganda falling within the scope of these
general findings. It has, however, failed to meet this burden in respect of the
physical injuries claimed in (1) Ituri, (2) Kisangani and (3) other areas.
Ituri
6.19 The DRC claims that 30,000 persons suffered “serious injuries as a result
of the breach by Uganda of its obligations as occupying Power of Ituri from 1998
to 2003”.726 This number is not arrived at by presenting evidence on an incidentby-
incident basis as to injuries committed to specific persons or groups of persons
in specific locations in Ituri on specific dates within the relevant time-period. Nor
does the DRC’s approach provide any basis for discriminating among types of
injuries, in terms of their severity or nature. On this basis alone, the Court should
deny this aspect of the DRC’s claim. Moreover, even taking it on its own terms,
the DRC’s methodology is deeply flawed.
6.20 According to the DRC Memorial, the 30,000 figure for “serious injuries”
results from the following “conservative calculation method”:727
 First, the DRC asserts that 60,000 people were killed in Ituri during the
conflict;
726 DRCM, para. 3.28 (Translation by Counsel, original in French: “blessures graves en
conséquence du manquement par l’Ouganda à ses obligations en tant que puissance occupante de
l’Ituri entre 1998 et 2003”.).
727 Ibid. (Translation by Counsel, original in French: “mode de calcul conservateur”.).
236
 Second, the DRC then assumes that the number of persons injured in
Ituri is “one-half” that number;728
 Third, the DRC states that it “believes” that out of the 30,000 persons
nominally injured, 20,000 were “victims of violent acts deliberately
directed against the civilian population” while another 10,000 “suffered
injuries or mutilation in other circumstances related to the conflicts” in
Ituri;729 and
 Fourth, the DRC hypothesises that out of the 20,000 victims of
deliberate violence, 15,000 suffered serious injuries and 5,000 suffered
minor injuries.730
None of these numbers is grounded in anything more than conjecture.
6.21 The DRC’s starting premise—that Uganda caused the loss of life of 60,000
persons in Ituri—is entirely unsupported, as Uganda showed in Chapter 5.731 The
claim is based on a single UN report, which stated an uncorroborated estimate of
the total death toll in Ituri without connecting any of those estimated deaths to
Uganda.
6.22 The Court has previously treated UN reports with caution, recognising that
their probative value differs depending on two factors in particular: (1) the
728 Ibid. (Translation by Counsel, original in French: “la moitié de celui des personnes qui ont perdu
la vie dans la région dans la même période”.).
729 Ibid., para. 3.29 (Translation by Counsel, original in French: “Il apparaît logique, dans les
circonstances de l’espèce, d’appliquer à ce nombre la même ventilation que celle retenue pour les
vies humaines. En l’occurrence, la RDC estime donc que les deux tiers (soit 20,000 personnes) des
blessés ou mutilés ont été victimes de violences délibérées dirigées contre les populations civiles.
Le tiers restant (soit 10,000 personnes) représente quand à lui la parties des habitants de l’Ituri qui
ont subi des blessures ou des mutilations dans d’autres circonstances liées aux conflits qui ont
déchiré cette région entre 1998 et 2003”.).
730 Ibid., para. 7.18.
731 See Chapter 5, Section II(B)(2).
237
underlying evidence used to prepare them; and (2) whether they are
corroborated.732 The UN report on which the DRC relies provides no underlying
evidence to support its estimate of the total death toll, nor is its estimate
corroborated by any other source. The report also does not state a link between
Uganda and the number of deaths its estimates.733 In this respect, it is notable that
the report did identify a number of other perpetrators of violence, but not Uganda.
Indeed, it indirectly recognised Uganda’s role in containing the violence.734
6.23 The second premise in the DRC’s “conservative calculation method”—that
the number of injured persons in Ituri can somehow be presumed to correspond to
“one-half” the 60,000 people allegedly killed during the same period—is equally
unfounded.
6.24 The DRC Memorial adduces literally no evidence supporting the postulated
ratio between deaths and injuries in Ituri. The DRC attempts to justify it by
claiming that it is “much lower than that noted in various recent conflicts.”735 As
examples, the DRC refers to a ratio of 1:8 among French soldiers killed and injured
in Afghanistan from 2001 to 2012, and a ratio of 1:3 for American soldiers
deployed in Vietnam.736 Even accepting those ratios as accurate, they are beside
the point here. They relate to markedly different conflicts, concern deaths/injuries
732 See Croatia v. Serbia (2015), para. 239 citing to Nicaragua v. United States of America (Merits,
1986), para. 62.
733 See Chapter 5, Section II(B)(2).
734 U.N. Security Council, Second special report of the Secretary-General on the United Nations
Organization Mission in the Democratic Republic of the Congo, U.N. Doc. S/2003/566 (27 May
2003), para. 10, DRCM Annex 3.6; DRCM, para. 3.22.
735 DRCM, para. 3.28 (Translation by Counsel, original in French: “Le ratio entre morts et blessés
retenu en l’espèce par la RDC dans ce contexte particulier est très inférieur à celui relevé dans divers
conflits récents”.).
736 Ibid., para. 3.29, note 267.
238
of soldiers, not civilians, and have been challenged by other sources. Indeed, the
significant difference between the ratios invoked (1:8 vs. 1:3) only underscores the
need for caution in making generalisations. They do not suggest any kind of pattern
that might be informative for any other conflict situation, let alone the situation in
the DRC.
6.25 More fundamentally still, Uganda explained in Chapter 4 that the use of
unexplained multipliers and ratios have no place in a legal proceeding.737 As the
EECC concluded, the use of multipliers, and the “mechanical addition of multiple
factors” has no precedent in international law and is “arbitrary and without legal
foundation”.738
6.26 The DRC’s third premise—the division of the 30,000 alleged victims into
two categories, 20,000 victims of deliberate violence and 10,000 victims of nondeliberate
violence—is equally flawed. The DRC’s only would-be justification for
this division is that it “appears logical” because it made the same apportionment in
pressing its claims concerning people allegedly killed in Ituri.739 Yet there is
nothing logical about it at all. The DRC offered no evidence justifying the division
in its claims relating to loss of life. Simply repeating it in the context of its claims
concerning personal injuries does not somehow make it any more valid. In both
places, the DRC merely assumes a conclusion it must prove.
6.27 Identical problems infect the DRC’s final premise that out of 20,000 victims
of deliberate violence, 15,000 people suffered serious injuries and 5,000 others
737 See Chapter 4, Section II(B).
738 Ethiopia’s Damages Claims (Final Award, 2009), paras. 62-63.
739 DRCM, paras. 3.23, 3.29 (Translation by Counsel, original in French: “Il apparaît logique, dans
les circonstances de l’espèce, d’appliquer à ce nombre la même ventilation que celle retenue pour
les pertes de vies humaines”.).
239
suffered minor injuries.740 The DRC offers no evidence of any kind to support these
assertions. There is therefore no basis even to entertain them, must less credit them.
6.28 Far from being “conservative”, the DRC’s “calculation method” rests
entirely on a collection of speculative assumptions piled atop each other. The
DRC’s numbers have no basis in convincing evidence that establishes with a high
level of certainty, or indeed any level of certainty at all, the number of persons
injured as a result of Uganda’s wrongful conduct.
6.29 The DRC’s own tables, ostensibly compiling the data reflected in its
(unproduced) claims forms relating to injuries, sharply contradict its claim that
30,000 people suffered physical injuries as a result of Uganda’s actions in Ituri.741
One table entitled “Rapport Fréquence Type Lésions de 1998 à 2003: Ituri”742
included in Annex 1.3 to the DRC Memorial lists only 197 victims of physical
injuries in Ituri.743 Still another table entitled “Victimes Lésion Ituri” lists 454
victims.744 Whichever number may be correct, if either is, the numbers reflected in
the DRC’s own claims forms differs radically from the claimed 30,000 victims.
6.30 Moreover, even the contradictory figures contained in the DRC’s tables
lack any credible basis for the reasons explained in Chapters 3 and 5. Although
those tables purport to summarise the information contained in claims forms
740 Ibid., para. 7.18.
741 “Logiciel permettant de consulter les fiches individuelles des victimes (uniquement en format
électronique)”, DRCM Annex 1.3; DRCM, para. 1.35. 743 See “Rapport Fréquence Type Lésions de 1998 à 2003” file in Liste Type Lésion et leur fréquence
Ituri, p. 1, DRCM, Annex 1.3. The total number, including aggravated and simple rape, is 513.
Since the DRC deals with rape in a separate chapter, the basis for comparison here should be injuries
other than those resulting from rape (513-316=197).
744 See “Evaluation Lésions” file in Victimes_Lésion_Ituri, p. 18, DRCM Annex 1.3.
240
gathered by the DRC for the purpose of this litigation, the DRC has failed to submit
those forms into evidence. Accordingly, there is no basis to verify the accuracy of
the information summarised.
6.31 Uganda observes further that even taken on their own terms, the summary
tables on which the DRC relies show very little. In the case of the table entitled
“Victimes Lésion Ituri”, for example, 327 of the claimed 454 victims are not even
identified.745 They are simply listed as “non signalé” (“unidentified”), “deuxième
personne” (“second person”), or “troisieme personne” (“third person”) based on
the alleged declarations of others. In addition, the injuries suffered are not specified
and the dates and locations of incidents are not provided. There is also no
information concerning the identity of the alleged perpetrator; the tables thus do
not even purport to establish a causal link between the injury alleged and Uganda.
6.32 Below, for example, is an excerpt from the table entitled “Victimes Lésion
Ituri”: 746
745 Ibid.
746 Ibid., p. 1.
241
It is useful to recall here once again the EECC’s admonition: “There can be no such
assessment in a claim involving huge numbers of hypothetical victims.”747
6.33 In an effort to ground its guesswork in reality, the DRC provides examples
of injuries allegedly caused by the UPDF and various other actors in Ituri, based
on several UN reports.748 Uganda contests these allegations, but even if they were
true, these examples do not support the DRC’s claims. Rather, they underscore the
extent to which the number of injuries the DRC claims is entirely unfounded.
747 Ethiopia’s Damages Claims (Final Award, 2009), para. 64.
748 DRCM, paras. 3.25-3.28.
242
6.34 In the only two examples that contain specific numbers, the DRC Memorial
states: “Mention is made, for example, of 30 civilians injured following the fighting
conducted by the UPDF to take back the town of Bunia in March 2003, of 80
civilians seriously injured in the attack on the parish of Drodro and of the
surrounding villages, on April 3, 2003”.749 The DRC cites the MONUC Special
Report on Events in Ituri as support. The statements contained in that report are,
however, highly qualified. It notes that both incidents only “reportedly”750 involved
the UPDF, that “[t]he situation was brought under control by UPDF on 8 March
[2003]”,751 and that the allegations had been rejected by the UPDF.752
6.35 Consequently, with respect to Ituri, the DRC has not shown that (1) the
claimed injuries actually occurred; (2) Ugandan soldiers directly caused the
claimed injuries; (3) those injuries resulted from conduct that non-State actors
carried out on the instructions of, or under the direction or control of Uganda; or
(4) those injuries would in fact have been averted if Uganda had acted in
compliance with its obligations as an occupying Power.753
749 Ibid., para. 3.25 (Translation by Counsel, original in French: “Il est par exemple fait mention de
30 civils blessés à la suite des combats menés par l’UPDF pour reprendre la ville de Bunia en mars
2003, de 80 civils grièvement blessés dans l’attaque de la paroisse de Drodro et des villages
environnants, le 3 avril 2003”.).
750 U.N. Security Council, Special Report on the events in Ituri, January 2002-December 2003,
U.N. Doc. S/2004/573 (16 July 2004), para. 73 and 75, DRCM Annex 1.6.
751 Ibid., para. 74.
752 Ibid., para. 76, DRCM Annex 1.6.
753 See Chapter 4, Section II(B)(2).
243
Kisangani
6.36 Relying on NGO and UN reports, the DRC alleges that Uganda caused
physical injuries to 1,937 people in Kisangani.754 This claim is somewhat more
focused temporally, in that the DRC identifies particular time periods when persons
were allegedly injured: 37 in the period leading up to May 1999; 100 in August
1999; 100 in May 2000; and 1,700 in June 2000.755 Yet, as these mostly round
numbers suggest, the DRC’s claims still are not being advanced by systematically
presenting evidence on an incident-by-incident basis as to injuries suffered by
specific persons or groups of persons in specific places, on specific dates, as a result
of specific acts attributable to Uganda. Rather, these numbers are entirely reliant
on very general information in combination with unexplained and arbitrary
assumptions. The Court can deny the DRC’s claim for personal injuries in
Kisangani on this basis alone. The claims also suffer from still other evidentiary
and legal flaws as well.
6.37 First, the DRC claims that Uganda is responsible for injuries caused by
rebel groups over which Uganda had no control and provides no evidence of a
causal link between the injuries and any conduct by Uganda. With respect to the
people allegedly injured in the period leading up to May 1999, for example, the
DRC claims that Uganda is responsible for injuring 36 persons during
confrontations between the RCD and the FAC in January 1999.756 The DRC seeks
to ascribe to Uganda responsibility for these injuries on the flawed theory that
Uganda was providing “‘political and military assistance’” to the RCD which, it
754 DRCM, para. 4.65.
755 Ibid., para. 4.64.
756 Ibid., para. 4.21.
244
says, “‘operated directly under [Uganda’s] command.’”757 As recalled in Chapter
4, however, the Court’s 2005 Judgment did not find the acts of the RCD or any
other rebel group attributable to Uganda.758 Responsibility for any injuries that may
have been caused by the RCD therefore cannot, without more, be ascribed to
Uganda.
6.38 Moreover, according to the UN Mapping Report, it was the DRC itself, not
the RCD, that caused the alleged injuries in January 1999 by indiscriminately
bombing Kisangani on 10 January 1999.759
6.39 Second, the DRC’s sources do not actually say what the DRC says they do.
As recalled in Chapter 3, the Court refused to rely on reports by the International
Crisis Group and Human Rights Watch in its 2005 Judgment because, inter alia,
they did not in fact say what the DRC was alleging.760 The same issue applies here.
6.40 The DRC claims, for example, that Uganda is responsible for wounding
100 people in May 2000. It bases its claims on reports by two Congolese NGOs,
the Groupe Lotus and Groupe Justice et Libération, which provide lists of 79 and
32 names, respectively.761 The DRC does not pick either number, or their average,
757 Ibid., paras. 4.09, 4.11, 4.13 (Translation by Counsel, original in French: “ont opéré directement
sous leur commandement.”).
758 See Chapter 4, Section (I)(A).
759 U.N. Mapping Report, para. 360, Annex 25.
760 Armed Activities (2005), para. 159. Other courts and tribunals are similarly cautious. The EECC,
for example, treated reports and other documents issued by non-governmental organisations with
caution, perhaps due to a concern that they were based on incomplete information or information
derivative of unsubstantiated claims being made by one or the other government. Sean D. Murphy
et al., Litigating War: Mass Civil Injury and the Eritrea-Ethiopia Claims Commission (2013), p.
193.
761 “Annexe 2 Blessés à Kisangani”, pp. 3-13, DRCM, Annex 4.2 citing to Groupe Lotus, Les
rivalités ougando-rwandaises à Kisangani: la prise en otage de la population civile (May 2000),
DRCM Annex 4.19 (the DRC claims that the report identifies 80 people, but the report only provides
245
but instead appears to add them together and then round the number off, stating:
“We can count here, in consideration of the likely duplicates, on a number of 100
victims.”762 Yet the vast majority of the names on the two lists appear to overlap,
a fact that calls into question the DRC’s use of a number larger than that stated in
either of the two reports.763 More importantly, neither report identifies Uganda as
the perpetrator. They therefore do not support the DRC’s allegation.
6.41 Third, the DRC’s sources provide no underlying evidence and are
uncorroborated. They have also been questioned by subsequent reports. The UN
Mapping Report, which reviewed all the sources cited by the DRC, could not verify
their numbers. It could only conclude that an “unknown number” of people were
injured during the May 2000 confrontations between the UPDF and APR.764
6.42 Citing the Report of the inter-agency assessment mission (“Inter-Agency
Report”) to Kisangani, the DRC also alleges that Uganda is responsible for
wounding 1,700 people in Kisangani in June 2000.765 But the report itself qualifies
the number stated, noting that it was simply estimated.766 Moreover, the UN
Mapping Report also reviewed the Inter-Agency Report, and did not agree with
79 names) and Groupe Justice et Libération, “La Guerre des Alliés à Kisangani (du 5 mai au 10 juin
2000) et le droit à la paix,” DRCM, Annex 4.10.d (The DRC lists 32 names that it claims come
from an annex of this report, but does not provide the annex).
762 DRCM, para. 4.35 (Translation by Counsel, original in French: “On peut ici tabler, en
considération des probables doublons, sur un nombre de 100 victimes.”).
763 Groupe Lotus, Les rivalités ougando-rwandaises à Kisangani: la prise en otage de la population
civile (May 2000), DRCM Annex 4.19; Groupe Justice et Libération, “La Guerre des Alliés à
Kisangani (du 5 mai au 10 juin 2000) et le droit à la paix”, DRCM, Annex 4.10.d.
764 U.N. Mapping Report, para. 362, Annex 25.
765 DRCM, paras. 4.44-4.46.
766 U.N. Security Council, Report of the inter-agency assessment mission to Kisangani, U.N. Doc.
S/2000/1153 (4 Dec. 2000), para. 16, DRCM Annex 4.24 (The original English version of the report
contains the word “estimated” but the French does not).
246
that estimate. It concluded instead that “over 1,000” were wounded during the June
2000 confrontations between the UPDF and APR, again without indicating how
many injuries were the result of actions attributable to Uganda.767
6.43 Fourth, the sources the DRC cites fail to establish the requisite causal link
to Uganda. None of the DRC’s sources state that Uganda was responsible for all
the injuries estimated. In fact, the UN Mapping Report observed that during the
May 2000 confrontations, Uganda, unlike Rwanda, “warned the population of the
imminent bombardments and had asked for the evacuation of several areas located
close to their targets” before the May 2000 confrontations.768 And with respect to
the events of June 2000, it observed that “[t]he UPDF had taken steps to avoid
civilians losses by ordering the evacuation of combat zones before the start of
hostilities and prohibiting access to three areas that were declared off-limits to noncombatants.”
769
6.44 Finally, the DRC’s own evidence contradicts the claimed number of 1,937
physical injuries in Kisangani.770 The DRC Memorial includes several lists of
alleged victims ostensibly based on the purported claims forms. In the table entitled
“Liste Type Lésion et leur Fréquence”, the DRC provides a summary of alleged
physical injuries in Kisangani between 1998 and 2003. The number of physical
injuries (other than sexual violence) is 752.771 Even then, a number of the alleged
victims are not identified and others who are named appear to present multiple
767 U.N. Mapping Report, para. 363, note 599, Annex 25.
768 Ibid., para. 362.
769 Ibid., para. 363.
770 DRCM, para. 4.65.
771 “Rapport Fréquence Type Lésions de 1998 à 2003” in file Liste Type Lésion et leur fréquence
KISANGANI, p. 1, DRCM, Annex 1.3.
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claims without any indication of the basis on which they do so. An excerpt of this
list appears below:772
6.45 Another chart purporting to list injuries by location within Kisangani
suggests a different number of people injured: 672.773 And there is still another
number (684) in a third chart.774 None of the numbers match and all are less than
half the number actually claimed in the DRC Memorial .
772 “Evaluation Lésions” in Victimes_Lesion_KISANGANI, p. 40, DRCM, Annex 1.3.
773 “Tableau de Synthèse Evaluation Lésions” in file Tableau Synthèse Effectif
Lesions_1998_a_2003, p. 1, DRCM, Annex 1.3.
774 “Evaluation Lésions” in file Victimes_Lésion_KISINGANI, p. 42, DRCM, Annex 1.3.
248
6.46 The DRC has therefore failed to demonstrate and prove the exact physical
injuries that were suffered in Kisangani as a result of specific actions of Uganda
constituting internationally wrongful acts for which it is responsible.
Other Locations (Beni, Butembo and Gemena)
6.47 The DRC claims that in locations other than Ituri and Kisangani it is
“possible to establish with certainty” that Uganda caused injuries to “203 [persons]
(130 for Beni, 68 for Butembo and 5 for Gemena).”775 In reality, the DRC’s
numbers are anything but certain, and this claim must be denied due to a lack of
proof.
6.48 To begin with, Annex 2.2 to the DRC Memorial indicates that the nominal
number of injuries in Butembo is actually 54, not 68, as the DRC claims.776 While
this error may seem minor, the DRC’s arithmetical errors are a recurring theme and
raise doubts about the reliability of any of its figures.
6.49 In any event, the DRC’s claim relating to physical injuries in Beni,
Butembo and Gemena rests solely on tables contained in Annex 2.2 that purport to
summarise the information contained in the (unproduced) claims forms. Like the
DRC’s other summary tables, Annex 2.2 is devoid of detail and no does not even
775 DRCM, para. 2.75.
776 The DRC lists both physical injuries and rapes in the same summary table. “Rapport Fréquence
Type Lésions de 1998 à 2003,” DRCM, Annex 2.2. The total number of alleged physical injuries
and rapes amounts to 74, and the number of alleged rapes amounts to 20, so 74-20=54 alleged
physical injuries. “Rapport Fréquence Type Lésions de 1998 à 2003”, p. 19, DRCM, Annex 2.2.
249
purport to state the cause, type and seriousness of the injuries alleged.777 Many of
the victims are also not identified, as in this excerpt from the list for Butembo:778
6.50 There is thus no basis to verify the correctness of the information
summarised in Annex 2.2.
*
6.51 For the reasons stated above, the DRC has failed to prove the “exact injury”
relating to physical injuries resulting from Uganda’s specific wrongful acts.
B. THE DRC HAS FAILED TO PROVE INCIDENTS OF SEXUAL VIOLENCE THAT WERE SUFFERED AS A RESULT OF SPECIFIC ACTIONS OF UGANDA
6.52 The DRC alleges that Uganda is responsible for the harm suffered by 1,730
alleged victims of sexual violence,779 including 1,100 victims of “aggravated
777 “Rapport Fréquence Type Lésion de 1998 à 2003”, DRCM, Annex 2.2.
778 Ibid., p. 23.
779 DRCM, para. 7.24.
250
rape”780 and 630 victims of “simple rape.”781 (It defines “aggravated rape” as rape
accompanied by other mistreatment, infection with a sexually transmitted disease
or loss of pregnancy.782) Of these, 1,710 incidents of rape are alleged to have
occurred in Ituri,783 18 in Kisangani784 and 12 in areas other than Ituri and
Kisangani.785
6.53 As a preliminary matter, Uganda notes that the Court did not make any
findings of fact on sexual violence or, indeed, even mention it in the 2005
Judgment. The DRC, for its part, also made no mention of sexual violence during
the oral proceedings at the merits phase. The DRC’s failure to raise the issue in its
oral proceedings, and the absence of any specific findings of fact on Uganda’s
liability for sexual violence in the Judgment, strongly suggest that this type of
physical injury was not envisaged in the 2005 Judgment. The DRC should therefore
be precluded from claiming compensation in respect of alleged incidents of rape at
this stage.
6.54 The Court did make a general finding that Ugandan forces committed “acts
of… torture and other forms of inhumane treatment of the Congolese civilian
780 Ibid. (Translation by Counsel, original in French: “viols aggravés”.).
781 Ibid. (Translation by Counsel, original in French: “viols simples”.).
782 Ibid., para. 7.22.
783 Ibid., para. 3.32.
784 Ibid., para. 7.24. In another section of the Memorial, the DRC claims that Uganda is responsible
for 13 cases of rape in Kisangani. Ibid., para. 4.60(b).
785 Ibid. In another section of the Memorial, the DRC claims that Uganda is responsible for 60 cases
of rape in other areas. Ibid., para. 2.79.
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population”.786 While sexual violence is a form of “inhumane treatment”787 and
“torture”,788 it is a very serious allegation that should have been specifically raised
and adjudicated at the merits phase.
6.55 Setting this threshold problem aside, the DRC’s allegations of sexual
violence suffer from the same evidentiary gaps and legal flaws as its claims with
respect to loss of life and other physical injuries.
6.56 The DRC calculates the number of victims of rape in two steps. First, it
retrieves a number from the unsigned, unverified tables it created for purposes of
this litigation. Second, it reverts to its now-familiar technique of applying arbitrary
multipliers, so as to increase the number determined in the first step by a factor of
five. Neither the underlying numbers nor the multiplication by five can form the
basis of a credible claim.
6.57 With respect to Ituri, the DRC states that “[t]he Congolese investigators
were able to list only 342 cases of rape”, which it says include “122 cases of rape
and 220 cases of aggravated rape”.789 The DRC contends these figures come “from
786 Armed Activities (2005), para. 345(3).
787 Prosecutor v. Tadić, ICTY Case No. IT-94-1-T, Opinion and Judgment (Trial Chamber, 7 May
1997); Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamera, Santigie Borbor Kanu, Case No.
SCSL-04-16-A, Judgment (Appeals Chamber, 22 Feb. 2008), para. 202.
788 See Prosecutor v. Kvočka et al., ICTY Case No. IT-98-30/1-T, Judgment (Trial Chamber, 2 Nov.
2001); Prosecutor v. Delalić and Delić, ICTY Case No. IT-96-21-T, Judgment (Trial Chamber, 16
Nov. 1998), p. 172. Commonly called the Celebici case, this judgment held rapes to be acts of
torture.
789 DRCM, para. 3.32 (Translation by Counsel, original in French: “122 cas de viols simples et 220
de cas viols aggravés”.).
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the use of the software package developed by the DRC for the purpose of these
proceedings” and submitted in Annex 1.3.790
6.58 The DRC then speculates that “[i]n light of the general practice that consists
of not reporting such acts, on the one hand, and, the significance of the use of rape
as a weapon of war against the civilian populations in Ituri, on the other, the
Democratic Republic of the Congo estimates that the real number of rapes for
which Uganda is liable… is a figure that is five times higher than those that have
been reported, that is, 1,710 cases.”791 “It is this number,” the DRC concludes, “that
shall be used as the basis for the claim for reparation… for this category of
damages”.792 The DRC then claims that “the same breakdown as that resulting from
the data files [prepared by the Congolese investigators] will be made, giving a
projection of 610 cases of rape and 1,100 cases of aggravated rape.”793
6.59 In Kisangani, the DRC claims that Uganda is responsible for 18 cases of
rape.794 For support, it relies on Annex 4.5(b) to the DRC Memorial, which contains
a table of 15 alleged victims (not 18) prepared by the Commission of Experts for
790 Ibid., para. 3.32, note 274 (Translation by Counsel, original in French: “résulte de l’utilisation
du logiciel confectionné par la DRC aux fins de la présente procédure”); Ibid., para. 7.24.
791 Ibid., para. 3.32. (Translation by Counsel, original in French: “Eu égard, d’une part, à la pratique
générale qui consiste à ne pas déclarer de tels faits et, de l’autre, à l’importance du recours au viol
comme arme de guerre contre les populations civiles en Ituri, la République démocratique du Congo
estime que le nombre réel de viols dont l’Ouganda est responsable en raison des manquements à
ses obligations en tant que puissance occupante de cette région entre 1998 et 2003 se monte à un
nombre cinq fois plus élevé que ceux qui ont été déclarés, soit 1.710 cas”.).
792 Ibid. (Translation by Counsel, original in French: “C’est ce nombre qui sera retenu comme base
de la demande de réparation présentée par la RDC pour cette catégorie de dommages”.).
793 Ibid. (Translation by Counsel, original in French: “La même ventilation que celle résultant des
fiches sera opérée, donnant une projection de 610 cas de viols simples et de 1.100 cas de viols
aggravés”.).
794 Ibid., para. 7.24.
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the purpose of this litigation.
6.60 For all other locations, the DRC again relies on the summary tables of the
claims forms “prepared by the DRC’s survey team” in Annex 2.2 for all injuries,
including rapes. According to the DRC, these “allow the existence of only 12 rapes
(2 cases recorded for Beni, 10 for Butembo)”.795 Below is the excerpt from Annex
2.2 from which the DRC derives its number of rapes for Beni (no other information
or mention of rapes for Beni is offered):
The DRC further claims that “it may reasonably be believed that the actual number
of rapes for which Uganda is responsible… is a number five times higher than those
that were declared, i.e., 60 cases.”796
6.61 There is no support for any of the DRC’s underlying numbers. As stated
previously, Annexes 1.3, 2.2 and 4.5 are merely lists without supporting evidence
795 Ibid., para. 2.79, referring to “Rapport Fréquence Type Lésion de 1998 à 2003”, DRCM, Annex
2.2 (Translation by Counsel, original in French: “Celles-ci ne permettent de prouver… que
l’existence de 12 viols (2 cas recensés pour Beni ,10 pour Butembo)”.).
796 Ibid., para. 2.79 (Translation by Counsel, original in French: “on peut raisonnablement estimer
que le nombre réel de viols dont l’Ouganda est responsable dans les régions dont il est question
dans le présent chapitre se monte à un nombre cinq fois plus élevé que ceux qui ont été déclarés,
soit 60 cas”.).
254
that shows the identity of the victims, the circumstances of the incidents or the
identity of the alleged perpetrators. There is therefore no credible basis for these
numbers, or for the apportionment between “aggravated rape” and “non-aggravated
rape.”
6.62 Indeed, in Annex 1.3, the numbers are not even what the DRC claims (122
cases of rape and 220 cases of aggravated rape):797
6.63 And, once again, most of the victims are not even named:798
797 Ibid., para. 3.32; “Rapport Frequence Type Lesions de 1998 à 2003” in Liste Type Lesion et leur
Frequence Ituri, DRCM, Annex 1.3.
798 “Evaluation Lésions” in Victimes_Lésions_Ituri, p. 4, DRCM, Annex 1.3.
255
256
6.64 In Annex 4.5.b, most of the ostensible cases listed are attributed to no
particular perpetrator or to vague “military persons” as in the excerpts below:799
Ugandan soldiers are listed in only four cases but no further details are given and
no supporting evidence is provided. There is therefore no basis for concluding that
the listed victims sustained injuries as a result of Uganda’s wrongful acts.
6.65 The DRC’s resort to the multiplier of five is mere conjecture and has no
basis in fact or law. The DRC Memorial offers no credible reason for picking the
number five, other than the general assertion that sexual violence was
underreported. Just like its percentages and multipliers for loss of life and physical
799 République Démocratique du Congo, Commission d’Experts, Identification des victimes et
évaluation des dommages: blessures, lésions corporelles, viols et autres, pp. 30-31, DRCM, Annex
4.5.b.
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injuries, this multiplier appears to have been chosen at random. Such arbitrary
inflation of claims is not based on evidence and has no place in a court of law.
6.66 The DRC’s “projection” that the total number of rapes in Ituri, which is the
result of its multiplication (342 rape cases x 5 = 1,710), follows the “same
breakdown” between cases of “aggravated rape” and “simple rape”800 is equally
unfounded. The DRC simply states that “[t]he same breakdown as that resulting
from the data files [prepared by the Congolese investigators] will be made, giving
a projection of 610 cases of rape and 1,100 cases of aggravated rape.”801 It provides
no reason or explanation for this assertion, which is nothing more than conjecture.
6.67 The DRC has therefore failed to demonstrate and prove the exact physical
injuries from sexual violence that were suffered as a result of specific
internationally wrongful actions of Uganda.
C. THE DRC HAS FAILED TO PROVE INJURY WITH RESPECT TO CHILD SOLDIERS
THAT WAS SUFFERED AS A RESULT OF SPECIFIC ACTIONS OF UGANDA
6.68 The DRC claims compensation for the recruitment and training of 2,500
child soldiers in Ituri, which it contends were “recruited and trained by the various
actors in the conflict in Ituri”.802
6.69 In the dispositif of the 2005 Judgment, the Court found generally that
Uganda’s armed forces “trained child soldiers”.803 It also made the general findings
800 DRCM, para. 3.32 (Translation by Counsel, original in French: “la même ventilation”.).
801 Ibid., para. 3.32.
802 Ibid., para. 3.36 (emphasis added) (Translation by Counsel, original in French: “recrutés et
entraînés par les différents protagonistes du conflit en Ituri”.).
803 Armed Activities (2005), para. 345(3).
258
described above regarding violations of human rights and international
humanitarian law,804 including Uganda’s failure as an occupying Power in Ituri
district “to take measures to respect and ensure respect for human rights and
international humanitarian law”.805
6.70 As with all other injuries, it is the DRC’s burden at this phase to prove the
exact injury relating to child soldiers that was suffered as a result of specific actions
of Uganda, through convincing evidence with respect to specific incidents that
occurred in specific places and at specific times.806 Because this aspect of the
DRC’s claim is limited to Ituri, the DRC must either prove that Uganda was directly
involved in the recruitment, training or use of child soldiers, or that the recruitment,
training or use of child soldiers by others “would in fact have been averted if the
Respondent had acted in compliance with its legal obligations”.807
6.71 Uganda recalled in Chapter 4 that the Court dealt with the issue of a State’s
breach of its due diligence obligations in the Genocide (Bosnia v. Serbia) case. The
Court ruled there:
“[T]he 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
804 Ibid., para. 345(1).
805 Ibid., para. 345(3).
806 See Chapter 3.
807 Bosnia and Herzegovina v. Serbia and Montenegro (2007), para. 462. See also, Chapter 4,
Section IV(A).
259
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.”808
6.72 The DRC bases its claim that Uganda is responsible for 2,500 child soldiers
on three sources: the UN Secretary-General’s Sixth Report on MONUC, the ICC’s
judgment in the Lubanga case and the UN Mapping Report. Specifically, the DRC
first quotes the UN Secretary-General’s Sixth Report on MONUC, which states:
“‘As the present report was being finalized, information was received that 600
children would be transferred [from Uganda] to the custody of humanitarian
organization next week’.”809 It next misleadingly cites to the ICC’s Lubanga
Judgment to suggest that the Trial Chamber ruled that 700 child soldiers were
recruited with Uganda’s support and were transferred for training to Uganda.810
Lastly, the DRC also cites to the UN Mapping Report, which states that “‘[i]n 2001,
the MLC admitted to having 1,800 [child soldiers] within its ranks’.”811
6.73 The DRC does not explain how it arrived at the number 2,500 from these
sources. It appears that it may be the sum of the numbers indicated from the
Lubanga Judgment (700) and the UN Mapping Report (1,800). In any event, the
numbers in the three sources on which the DRC relies cannot form the basis of a
808 Bosnia and Herzegovina v. Serbia and Montenegro (2007), para. 462.
809 DRCM, para. 3.35 (Translation by Counsel, original in French: “Au moment où on mettait la
dernière main au présent rapport, on a appris que 600 de ces enfants seraient transférés à la garde
d’organisations humanitaires la semaine prochaine”.); U.N. Security Council, Sixth report of the
Secretary-General on the United Nations Organization Mission in the Democratic Republic of the
Congo (MONUC), U. N. Doc. S/2001/128 (12 Feb. 2001), para. 66, DRCM, Annex 3.4.
810 DRCM, para. 3.35.
811 Ibid., para. 3.35 (Translation by Counsel, original in French: “En 2001, le MLC aurait reconnu
avoir 1800 EAFGA dans ses rangs.”).
260
claim against Uganda. They have been disproven (in the case of the Sixth Report
on MONUC), mischaracterised by the DRC (in the case of the Lubanga Judgment)
or are insufficiently connected to Uganda (in the case of the UN Mapping Report).
6.74 The DRC’s reliance on the UN Secretary-General’s Sixth Report on
MONUC is hard to understand given that the DRC itself admits (albeit in footnote)
that the report was later corrected by the UN Mapping Report. Specifically, at
footnote 278 to paragraph 3.35 of the DRC Memorial, the DRC acknowledges that
the UN Mapping Report “indicates what actually occurred in February 2001 (that
is, the repatriation of only 163 children and not of the 600 initially anticipated).”812
(Uganda notes that this is the only number of child soldiers connected to the UPDF
in the UN Mapping Report.813)
6.75 The DRC mischaracterises the Lubanga judgment by paraphrasing the
testimony of a witness (witness P-0116) and presenting it as a determination made
by the Trial Chamber.814 Witness P-0116 was not an eye-witness to the events at
issue but was “told” by unspecified persons that “about 700 youths” had been taken
to Uganda.815 The witness further testified that some, but not all, the “700 youths”
812 Ibid., para. 3.35, note 278 (Translation by Counsel, original in French: “signale ce qui s’est
effectivement passé en février 2001 (soit le rapatriement de 163 enfants seulement, et non des 600
initialement prévus)”.).
813 In contrast, there is ample evidence that the Congolese military recruited, trained and involved
many more children in its armed activities: “By 2003, the UN estimated that 10% of the FAC was
made up of [child soldiers] and the [Congolese] Minister of Human Rights admitted that there were
3,000 [child soldiers] waiting to be demobilised within the FAC.” U.N. Mapping Report, para. 693,
Annex 25.
814 DRCM, para. 3.35 quoting to Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06,
Judgment (ICC Trial Chamber I, 14 Mar. 2012), para. 1033.
815 Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment (ICC Trial
Chamber I, 14 Mar. 2012), para.1033.
261
were children.816 The Trial Chamber did not adopt the witness’s testimony as
proven fact, stating that “it is unnecessary for the Chamber to reach a precise
determination of their individual ages because this incident falls outside the period
of the charges and is relevant only for general contextual and background
purposes.”817
6.76 The DRC also cites to the UN Mapping Report for the proposition that
“‘[i]n 2001, the MLC admitted to having 1,800 [child soldiers] within its ranks’.”818
The UN Mapping Report, however, does not link the MLC’s alleged actions to
Uganda. There is no evidence either in the UN Mapping Report or presented by the
DRC demonstrating that the child soldiers in question were recruited by Uganda or
trained in UPDF training camps.
6.77 Moreover, as stated, the DRC’s claim is expressly limited to the
recruitment, training and use of child soldiers in Ituri. Yet the MLC was primarily
active in Equateur Province, which was not under Uganda’s control.819 The
allegation concerning the MLC is therefore irrelevant to the DRC claim as
presented in its Memorial.
6.78 Further, even if these allegations were tied to Ituri (quod non), the DRC
would still have to show that the MLC’s use of child soldiers would in fact have
816 Ibid., para.1032. The Court noted that “P-0116 gave evidence that the children concerned were
predominantly Hema, and a number of them were under the age of 15.” This suggests that not all
the 700 youths were under the age of 15.
817 Ibid., para. 1043.
818 DRCM, para. 3.35 (Translation by Counsel, original in French: “En 2001, le MLC aurait reconnu
avoir 1800 EAFGA dans ses rangs”.).
819 See U.N. Mapping Report, Annex 25, para. 310; Armed Activities (2005).
262
been prevented had Uganda complied with its obligations as an occupying Power.
The DRC does not even attempt to make such a showing.
6.79 The mere fact that Uganda provided support to the MLC is, of course, not
enough to attribute responsibility to Uganda for its actions. Indeed, the Court
specifically declined to find the MLC’s actions attributable to Uganda in the 2005
Judgment. To hold Uganda responsible for its acts now would violate the principle
of res judicata, especially without a showing that Uganda directly controlled the
MLC’s decision to utilise child soldiers, or that the children were recruited or
trained in areas under Uganda’s control, or that their recruitment and training would
have been prevented had Uganda complied with its obligations as an occupying
Power.
6.80 The DRC Memorial therefore fails to sustain its allegation that Uganda is
responsible for the recruitment, training and use of 2,500 child soldiers.
D. THE DRC HAS FAILED TO PROVE INJURY WITH RESPECT TO DISPLACED PERSONS THAT WAS SUFFERED AS A RESULT OF SPECIFIC ACTIONS OF UGANDA
6.81 The DRC claims that Uganda is responsible for the displacement of 668,538
persons.820 Six hundred thousand of the displacements are alleged to have occurred
in Ituri; 68,000 are alleged to have occurred in Kisangani and the remaining 538
are alleged to have occurred in other locations.
6.82 The DRC’s numbers concerning displacement are not arrived at by
presenting evidence on an incident-by-incident basis with respect to specific
persons or groups of persons in specific towns or villages on specific dates within
820 DRCM, paras. 7.30-7.32.
263
the relevant time-period. This failure to engage on the specific circumstances of
displacement is fatal to the DRC’s claim, as there is no evidence indicating whether
such displacement occurred due to deliberate efforts attributable to Uganda to make
the civilians flee, nor is there any evidence indicating that such displacement was
a direct result of Uganda’s violation of the jus ad bellum. As such, on this basis
alone, the Court should deny the DRC’s claim for personal injury from
displacements.
6.83 Even so, Uganda will critique the methodology that the DRC presses upon
the Court. Uganda will show in the sections that follow that the DRC has failed to
discharge its burden at this stage to prove the exact injury relating to displacements
that was suffered as a result of specific actions attributable to Uganda.
1. Ituri
6.84 With respect to Ituri, the DRC alleges that Uganda is responsible for the
displacement of 600,000 persons who fled from deliberate violence “as a result of
the non-performance by Uganda of its obligations as the occupying Power of Ituri
from 1998 to 2003.”821 This contention is based on the UN Secretary General’s
Second special report on MONUC, which refers to an estimate by the UN Office
for the Coordination of Humanitarian Affairs (“OCHA”) that “between 500,000
and 600,000” persons were internally displaced in Ituri.822 The DRC’s reliance on
this source is inapposite for several reasons.
821 DRCM, para. 3.41 (Translation by Counsel, original in French: “en conséquence du manquement
par l’Ouganda à ses obligations en tant que puissance occupante de l’Ituri entre 1998 et 2003.”).
822 Ibid., para. 3.41, note 293 citing to Second report of the Secretary-General on the United Nations
Organization Mission in the Democratic Republic of the Congo, S/2003/566 (27 May 2003), para.
10, DRCM, Annex 3.6.
264
6.85 First, OCHA’s estimate is simply that: an estimate. Moreover, the vast
difference between the two numbers stated—100,000—shows a considerable
amount of uncertainty. The DRC provides no explanation as to why it picked the
higher of the two as the basis for its claim. Its seemingly arbitrary selection of the
highest possible estimate is inconsistent with its professed “desire to comply with
the requirements of seriousness and rigour that characterize the legal
proceeding”.823 Nor is it consistent with the requirement that the DRC show the
exact injury suffered as a result of specific wrongful acts of Uganda.
6.86 Second, there is nothing in the UN Secretary-General’s Report showing that
the stated numbers of persons fled “deliberate violence”, or that the displacement
would have been avoided had Uganda complied with its obligations as an
occupying Power in Ituri.824 The report simply estimates the total number of
internally displaced people in the region, regardless of the cause of their
displacement. OCHA and the UN Secretary-General do not indicate the
circumstances of the displacements, how long they lasted, when and if those who
were displaced were able to return to their homes, or what damages they suffered
as a result.
6.87 The DRC also provides nothing to show a causal link between the injury
claimed and Uganda’s wrongful conduct. Still less does it show that, in the specific
context of these events, Uganda’s exercise of its due diligence obligations would
823 Ibid., para. 2.75 (Translation by Counsel, original in French: “dans un souci de rigueur et de
mesure.”).
824 See Second report of the Secretary-General on the United Nations Organization Mission in the
Democratic Republic of the Congo, S/2003/566 (27 May 2003), para. 10, DRCM, Annex 3.6.
265
have sufficed to prevent the alleged displacement.825 It therefore cannot use the
report to support its claim.
2. Kisangani
6.88 The DRC next claims that Uganda is responsible for the displacement of
68,000 persons “who fled their homes for shorter periods” in Kisangani.826 The
sole basis for this claim is the statement by the UN Inter-Agency Commission that
during fighting between Rwanda and Uganda in June 2000 in Kisangani, some
“‘65,000 residents fled to seek refuge in the nearby forest’” and that “‘[a]round
3,000 internally displaced people were housed in a camp at Katele’”.827 There are
several reasons to believe that these numbers are inflated and that such
displacements cannot be attributed to Uganda.
6.89 As Uganda has recalled elsewhere, the Court stated in the 2005 Judgment
that it would “take into consideration evidence contained in certain United Nations
documents to the extent that they are of probative value and are corroborated, if
necessary, by other credible sources.”828 The Court also stated that it “will treat
with caution evidentiary materials… emanating from a single source.”829 Yet the
Inter-Agency Commission does not provide any supporting evidence or
methodology to explain its estimates. The Inter-Agency Report also does not
825 See Bosnia and Herzegovina v. Serbia and Montenegro (2007), para. 438. See also Chapter 4,
Section I(D).
826 DRCM, para. 7.31 (Translation by Counsel, original in French: “qui ont fui leur domicile pour
des périodes plus brèves”.).
827 Ibid., para. 4.47 (Translation by Counsel, original in French: “65 000 habitants de Kisangani à
se refugier dans la forêt proche. Environ 3000 personnes déaplacées ont été logées dans un camp à
Katele”.) citing to U.N. Security Council, Report of the inter-agency assessment mission to
Kisangani, U.N. Doc. S/2000/1153 (4 Dec. 2000), para. 57, DRCM, Annex 4.24.
828 Armed Activities (2005), para. 205.
829 Ibid., para. 61.
266
indicate how long the displacement lasted, when and if those who were displaced
were able to return to their homes, or what damages they suffered as a result.
6.90 Moreover, the UN Mapping Report, after reviewing various sources,
including the Inter-Agency Report, declined to adopt this number, and made a
much more conservative and qualified estimate that the June 2000 confrontations
in Kisangani caused “thousands of people to be displaced.”830 “Thousands” plainly
implies a number less than ten thousand and likely much less than that. One would
expect an estimate of 30,000, for example, to be described as “tens of thousands”,
not “thousands”. The use of this term thus indicates that the UN Mapping Team
did not agree with the 68,000 number stated in the Inter-Agency Report.
6.91 Accordingly, the DRC Memorial does not provide any convincing evidence
that Uganda caused the displacement of 68,000 persons in Kisangani.
3. Other Locations (Beni, Butembo and Gemena)
6.92 The DRC claims that in locations other than Ituri and Kisangani, Uganda is
responsible for the displacement of 538 persons: 433 in Beni, 93 in Butembo and
12 in Gemena.831 This claim is based on “the forms prepared by [the DRC’s] survey
commission”.832
6.93 As stated, the DRC has failed to submit any of those forms, or any other
supporting materials, into evidence. There is therefore no basis to determine
whether the DRC’s claim is based on convincing evidence that establishes with the
830 U.N. Mapping Report, para. 363, Annex 25.
831 DRCM, para. 2.83.
832 Ibid., para. 2.83 (Translation by Counsel, original in French: “les fiches établies par sa
Commission d’enquête”.).
267
high level of certainty the existence of the claimed injury or a causal link between
the injury and Uganda’s wrongful conduct.
6.94 The DRC offers only Annex 2.3, which is simply an unsigned list that does
not provide any details as to the identities of the victims, the circumstances and
causes of their displacement, and the damages they suffered.
*
6.95 The DRC has thus failed to provide convincing evidence that Uganda is
responsible for the displacement of 668,538 persons.833
6.96 The exaggerated nature of the DRC’s claim that Uganda is responsible for
the displacement of 668,538 people can also be seen by viewing the claim in
broader context. The UNHCR estimates that today there are a total of “621,711
refugees from the DRC in more than 11 other African countries”.834 The contention
that Uganda is alone responsible for the displacement of more people than the total
number of Congolese refugees in Africa today (given that violence and conflict
throughout the country to this day) is absurd.
III. The DRC’s Valuation for Personal Injuries Is Methodologically
Flawed
6.97 The DRC’s valuation of the personal injury claims described above is
equally unsupported by evidence and at odds with valuation methodologies used in
inter-State claims. In the following sections, Uganda will (A) summarise the
833 Ibid., paras. 7.30-7.31.
834 U.N.H.C.R., U.N.H.C.R. warns of worsening displacement in Democratic Republic of Congo
(24 Oct. 2017), p. 3, Annex 34.
268
DRC’s approach to valuation for each category of personal injury and (B)
demonstrate how the DRC’s approach is both unsupported and flawed.
A. THE DRC’S VALUATION OF PERSONAL INJURIES
1. Physical Injuries
6.98 The DRC claims US$ 54,464,000 in compensation835 for physical injuries
it alleges to have been caused by Uganda. The DRC evaluates damages for physical
injuries based on alleged compensation awards rendered by DRC municipal courts
for three categories of injuries: (1) serious injuries caused by deliberate violence;
(2) minor injuries caused by deliberate violence; and (3) injuries caused by nondeliberate
violence.
6.99 For serious injuries caused by deliberate violence, the DRC seeks US$
3,500 per victim, which allegedly represents the “average” amount of
compensation “granted by the Congolese courts to injured or mutilated people in
the context of the perpetrations of serious crimes against international law.”836 (The
DRC asserts that the “range” of these awards was “from US$ 550 to US$
5,000.”837)
835 DRCM, para. 7.21.
836 Ibid., para. 7.17 (Translation by Counsel, original in French: “octroyées par les juridictions
congolaises aux personnes blessées ou mutilées dans le contexte de la perpétration de crimes graves
de droit international.”). The total amount of compensation claimed by the DRC for this category
of damage is US$ 52,500,000 (US$ 3,500 x 15,000 of alleged victims who suffered serious injuries
caused by deliberate violence in Ituri. DRCM, para. 7.18).
837 Ibid. (Translation by Counsel, original in French: “s’échelonnent entre 550 et 5000 dollars des
Etats-Unis”.).
269
6.100 For minor injuries caused by deliberate violence, the DRC seeks US$ 150
per victim, which, it says, is “the average sum” of compensation awarded by the
Congolese courts.838
6.101 And for any injuries caused by non-deliberate violence, the DRC uses “the
minimum sum of US$ 100” per victim reflecting the compensation granted by
“ordinary Congolese courts as reparation to victims of accidental injuries.”839
6.102 The DRC multiplies these nominal average amounts by the number of
alleged victims:
 US$ 52,500,000 for serious injuries caused by deliberate violence to an
alleged 15,000 victims in Ituri (15,000 x US$ 3,500);840
 US$ 750,000 for minor injuries caused by deliberate violence to 5,000
alleged victims in Ituri (5,000 x US$ 150);841 and
 US$ 1,214,000 for injuries not caused by deliberate violence to 12,140
alleged victims (10,000 in Ituri; 1,937 in Kisangani; and 203 in locations
other than Ituri and Kisangani) (12,140 x US$ 100).842
838 Ibid. The total amount of compensation claimed by the DRC for this category of damage is US$
750,000 (US$ 150 x 5,000 of alleged victims who suffered minor injuries caused by deliberate
violence in Ituri.).
839 Ibid., para. 7.19 (Translation by Counsel, original in French: “par les juridictions ordinaires
congolaises à titre de répérations aux victimes de blessures ou mutilations accidentelles”.). The total
amount of compensation claimed by the DRC for this category of damage is US$ 1,214,000 (US$
100 x 12,140 of alleged victims who suffered injuries caused by non-deliberate violence in Ituri
(10,000), Kisangani (1,937) and locations other than Ituri and Kisangani (203).).
840 Ibid., para. 7.18.
841 Ibid.
842 Ibid., para. 7.20.
270
6.103 The claimed compensation, according to the DRC, covers both material
injury, which includes “the cost of care, the loss of income, due to temporary or
permanent physical disabilities resulting from the injuries, and the loss of
opportunities” and moral injury, which includes “the trauma resulting from the
atrocities, the anguish caused by the acts, the suffering resulting from difficulty
accessing care, the distress resulting from the lack of intervention by the authorities
in place and of legal proceedings against the perpetrators, the permanent
deterioration of the quality of life of mutilation victims, and the irreparable damage
to their image and self-esteem.”843
2. Sexual Violence
6.104 As stated, the DRC seeks US$ 33,458,000 in compensation for the harm
suffered by victims of sexual violence allegedly perpetrated by Uganda.844
6.105 As with physical injuries, the DRC assesses compensation for sexual
violence based on alleged compensation awards granted by Congolese courts.
According to the DRC, damages for aggravated rape “range between US$ 10,000
and 750,000, with an average award of US$ 23,200”, and damages for nonaggravated
rape “ranged between US$ 700 and 50,000, with an average of US$
843 Ibid., para. 7.16 (Translation by Counsel, original in French: “Le préjudice matériel comprend
le coût des soins, les pertes de revenus du fait des incapacités physiques temporaires ou permanentes
résultant des blessures, les pertes de chances. On peut retenir au titre du préjudice moral le
traumatisme résultant des atrocités commises, l’angoisse que les faits se reproduisent, les
souffrances résultant des difficultés d’accès aux soins, la détresse résultant de l’absence
d’intervention des autorités en place et de l’absence de poursuite des auteurs des faits, la dégradation
permanente de la qualité de la vie des victimes de mutilations, de même que l’atteinte irrémédiable
à leur image et à leur estime de soi”.).
844 Ibid., para. 7.25.
271
12,600.”845 The DRC multiplies these average amounts by the number of alleged
victims of sexual violence:
 US$ 25,520,000 for 1,100 victims of aggravated rape (US$ 23,200 x
1,100); 846
 US$ 7,938,000 for 630 victims of non-aggravated rape (US$ 12,600 x
630).847
6.106 Here, too, the claimed compensation, according to the DRC, covers the
material loss, which includes “the cost of care that had to be provided to the
victims,” and moral injury, which reflects “the ostracism to which the victims are
subjected”, diminished chances of finding a husband, “persistent pain”, “infection
with sexually transmitted diseases”, and loss of a child while being pregnant.848
845 Ibid., para. 7.23 (Translation by Counsel, original in French: “Les montants des indemnisations
octroyées par les juridictions congolaises aux personnes qui ont été victimes de viols simples dans
le contexte de la perpétration de crimes graves de droit international s’échelonnent entre 700 et
50.000 dollars des Etats-Unis, la somme moyenne étant de 12.600 dollars des Etats-Unis. Les
sommes retenues pour des viols aggravés par les mêmes tribunaux s’échelonnent entre 10.000 et
750.000 dollars des Etats-Unis, avec une moyenne de 23.200 dollars des Etats-Unis.”).
846 Ibid., para. 7.24.
847 Ibid.
848 Ibid., para. 7.22 (Translation by Counsel, original in French: “Le prejudice matériel comprend
pour l’essentiel le coût des soins qui ont dû être prodigués aux victimes. Le préjudice moral subi
par les victimes de tels faits s’avère particulièrement significatif. Il est la conséquence du caractère
humiliant du crime de viol, de l’ostracisme dont sont frappées les victimes de la part des membres
de la famille ou de la société en général. Lorsque ce risque se concrétise, il peut donner lieu à des
difficultés au sein du ménage ou à la répudiation de la femme. De même, les jeunes filles violées
alors qu’elles n’étaient encore mariées voient leurs chances de trouver un époux diminuer. Il
convient finalement de prendre en compte des circonstances plus spécifiques —mais loin d’être
exceptionnelles—, particulièrement lorsque le viol s’accompagne d’autres mauvais traitements
(viol aggravé), de la persistance de douleurs, d’une infection par maladie sexuellement
transmissible, ou lorsque la femme violée a perdu l’enfant qu’elle portait ou qu’elle se retrouve
enceinte de son agresseur.”).
272
3. Child Soldiers
6.107 The DRC claims US$ 30 million in compensation for the recruitment and
training of child soldiers.849 The DRC calculates this amount by taking US$ 12,000,
the allegedly average sum Congolese courts have awarded to victims in analogous
circumstances,850 and multiplying that sum by 2,500, the number of alleged victims
in this category (2,500 x US$ 12,000).851 (Uganda notes that in addition to the other
problems with the effort at valuation discussed below, the DRC Memorial nowhere
bothers to explain what “acts that have caused harm similar to that suffered by the
child soldiers”852 were used as a reference point to assess injury to child soldiers
and why that comparator is relevant to assessing injuries to child soldiers.)
6.108 Like physical injuries and sexual violence, the DRC contends that this
compensation reflects both the material injury, which includes the deprivation of
access to education and loss of opportunities as well as the loss of contributions
children make to their family (domestic chores, shepherding), and the moral injury,
which relates to the trauma resulting from taking these children away from their
families and exposing them to mistreatment and the violence of war.853
4. Displacement
6.109 Finally, the DRC claims US$ 186,853,800 in compensation for damage
allegedly suffered by 668,538 displaced persons.854 This amount includes US$ 180
849 Ibid., para. 7.28.
850 Ibid., para. 7.27.
851 Ibid., para. 7.28.
852 Ibid., para. 7.27 (Translation by Counsel, original in French: “actes qui ont engendrés des
prejudices similaires à ceux subis par les enfants soldats”.).
853 Ibid., para. 7.26.
854 Ibid., paras. 7.30-7.32.
273
million for persons who had to flee from deliberate violence against civilian
populations855 and US$ 6,853,800 for persons who left their homes for short
periods to escape armed conflict.856
6.110 To assess compensation for damage suffered by persons displaced as a
result of deliberate violence, the DRC claims it is “reasonable to allocate the sum
of US$ 300” for each victim in this category.857 This sum is then multiplied by
600,000, the alleged number of victims fleeing deliberate violence. The total
claimed amount for this category of damages is thus US$ 180 million (600,000 x
US$ 300). This compensation is limited to Ituri and is said to cover both the
material injury resulting from the suspension of professional activities of allegedly
displaced persons during the entire period of their hiding, and the moral harm they
suffered from the atrocities committed against the other members of their group,
the fear of repetition of such acts, the distress due to the non-intervention by local
authorities and non-prosecution of perpetrators.858
6.111 To assess compensation for damage suffered by persons displaced not as a
result of deliberate violence, the DRC claims it is “reasonable to allocate the sum
of US$ 100” for each victim in this category.859 This sum is then multiplied by
68,538, the alleged number of victims in this category (68,000 in Kisangani and
538 in other regions in eastern DRC).860 The total claimed amount for this category
855 Ibid., para. 7.30.
856 Ibid., para. 7.31.
857 Ibid., para. 7.30 (Translation by Counsel, original in French: “La République démocratique du
Congo estime raisonnable de retenir la somme de 300 dollars ”.).
858 Ibid.
859 Ibid., para. 7.31 (Translation by Counsel, original in French: “la République démocratique du
Congo estime raisonnable de retenir la somme de 100 dollars”.).
860 Ibid.
274
of damages is thus US$ 6,853,800 (68,538 x US$ 100).861 This compensation is
also claimed to cover both the material injury, which is allegedly the same as that
suffered by persons fleeing deliberate violence, and the moral injury, which is
“limited to the anguish connected with abandoning one’s home and the fear of
returning to find it destroyed, damaged or ransacked.”862
B. THE DRC’S APPROACH TO VALUATION OF PERSONAL INJURY DAMAGES IS UNSUPPORTED BY EVIDENCE AND METHODOLOGICALLY FLAWED
6.112 The DRC’s approach to the valuation of compensation for personal injuries
is unsupported by evidence and methodologically flawed. To begin with, as
recalled in Chapter 5,863 the DRC cites no authority for the proposition that the
measure of compensation for personal injuries in this Court should be determined
by reference to decisions rendered by a claimant State’s municipal courts. As was
true in the case of its claims in respect of loss of life, the only justification the DRC
Memorial offers for using this approach is its subjective assertion that it considers
it “reasonable” to do so.864
6.113 Furthermore, even if the DRC’s damages under international law could be
measured by reference to the quanta awarded by a DRC domestic court (quod non),
the content of its national law is a matter of fact that it must prove.865 The DRC
fails to present any such evidence, however. Even though it nominally bases its
valuations for physical injuries, sexual violence and child soldiers based on
861 Ibid.
862 Ibid. (Translation by Counsel, original in French: “limité pour sa part à l’angoisse liée à
l’abandon de son domicile et à la crainte de le retrouver détruit, endommagé ou pillé”.).
863 Chapter 5, Section III.
864 DRCM, para. 7.17.
865 See Chapter 3, Section I.
275
Congolese case law, the DRC does not provide a single judgment or other
document demonstrating the amount of compensation its domestic courts awarded.
Moreover, the DRC itself admits that “the grounds” for compensation awarded by
the Congolese courts “often remained brief” and that there were judgments
“entirely unfounded or manifestly arbitrary.”866
6.114 A 2011 report by the Congolese Ministry of Justice and Human Rights and
the UN Development Program (“UNDP”) highlights a number of issues with
Congolese courts’ assessment of reparations in sexual violence cases in particular.
Many judgments do not clearly indicate the basis for the amount of compensation,
or explain the type of harm suffered, its extent or gravity.867 Other judgments
provide ex aequo et bono compensation even though the damages can be evaluated
in an objective manner, for example when there are health issues as a result of
sexual violence that can be evaluated by a medical professional.868 Other judges
simply have considered the amount requested by the victim to be “exaggerated”
866 DRCM, para. 7.08 (Translation by Counsel, original in French: “totalement dépourvus de
motivation ou manifestement arbitraire”.).
867 Ministère de la Justice et des Droits Humains, République Démocratique du Congo, & PNUD,
Monitoring judiciaire 2010-2011, Rapport sur les données relatives à la réponse judiciaire aux cas
de violences sexuelles à l’Est de la République démocratique du Congo (2010-2011), p. 55, Annex
65.
868 Ministère de la Justice et des Droits Humains, République Démocratique du Congo, & PNUD,
Monitoring judiciaire 2010-2011, Rapport sur les données relatives à la réponse judiciaire aux cas
de violences sexuelles à l’Est de la République démocratique du Congo (2010-2011), p. 56, Annex
65 citing to the Congolese Criminal Code, Art. 14 (“The Public Ministry officer or judge
systematically must require a doctor and psychologist, in order to evaluate the state of the victim of
sexual violence and to determine appropriate treatment and in order to evaluate the extent of the
harm suffered and its subsequent aggravation”) (Translation by Counsel, original in French:
“l’officier du Ministère Public ou le juge requièrent d’office un médecin et un psychologue, afin
d’apprécier l’état de la victime des violences sexuelles et de déterminer les soins appropriés ainsi
que d’évaluer l’importance du préjudice subi par celle-ci et son aggravation ultérieure”.).
276
and granted lesser amounts of compensation ex aequo et bono without any
reasoning or justification.869
6.115 With respect to its claims for displacement, the DRC offers literally nothing
to support the numbers it claims. Damages are quantified based solely on what the
DRC “deems” to be “reasonable”.870 Why should US$ 300 should be the measure
of damages for persons displaced as a result of deliberate violence and US$ 100
for other displaced persons? The DRC does not explain. This is all the more curious
in that the DRC asserts that the compensation claimed covers elements such as the
“cost of care”, “loss of income” and “loss of opportunities”. Assuming that were
true, the DRC should be able to justify the amounts claimed with something more
than its own assertions of “reasonableness”.
6.116 Uganda respectfully submits that the DRC’s claim for compensation
relating to persons allegedly displaced by the conflict should also be viewed in light
of the fact that, rather than fleeing from Ugandan forces, many Congolese have
sought refuge in Uganda. As stated in Chapter 2, Uganda has been the primary host
country for Congolese refugees since the conflict.871 Today, there are more than
236,500 Congolese refugees living in Uganda.872 Moreover, Uganda’s refugee and
asylum policies are widely recognised as being among the most progressive in the
world.873 Uganda provides all refugees, including those from the DRC, with land
869 Ministère de la Justice et des Droits Humains, République Démocratique du Congo, & PNUD,
Monitoring judiciaire 2010-2011, Rapport sur les données relatives à la réponse judiciaire aux cas
de violences sexuelles à l’Est de la République démocratique du Congo (2010-2011), p. 56, Annex
65.
870 DRCM, paras. 7.30-7.31 (Translation by Counsel, original in French: “estime raisonnable”.).
871 U.N.H.C.R., U.N.H.C.R. Global Appeal 2004, Uganda (31 Dec. 2003), p. 113, Annex 17.
872 U.N.H.C.R., U.N.H.C.R. warns of worsening displacement in Democratic Republic of Congo
(24 Oct. 2017), Annex 34. 873 See Chapter 2, Section II(C).
277
to farm and access to the same services as Ugandan nationals, including
education.874
6.117 Finally, with respect to all the amounts requested for all types of personal
injuries it alleges, the DRC makes absolutely effort to evaluate those injuries based
on victim-specific factors, as the Court’s consistent jurisprudence, including the
2005 Judgment, require it to do. Although it claims that the compensation claimed
covers various elements, such as the “cost of care”, “loss of income”, “loss of
opportunities” and “the trauma resulting from the atrocities”, the DRC offers no
evidence of any kind on the exact nature of the injury and its consequences, such
as through medical and mental health records, invoices or receipts concerning costs
of care, or information on lost income.
6.118 Although, as stated, Uganda understands that there may be difficulties
gathering evidence of harms that occurred in the context of an armed conflict, the
Lubanga and Katanga reparations cases demonstrate that it is possible, at the very
least, to present some supporting evidence regarding injuries suffered during an
armed conflict, including in the DRC. Yet the DRC Memorial conspicuously
provides no evidence of the type presented by the victims in the Lubanga and
Katanga cases, or by Ethiopia and Eritrea before the EECC. There are no primary
documents or witness statements attesting to facts based on first-hand information.
As was true with respect to the DRC’s claims in respect of loss of life, there are not
just gaps in the DRC’s evidence, there is a complete void.
*
874 Charles Yaxley, U.N.H.C.R., Uganda hosts record 500,000 refugees and asylum-seekers (18
Dec. 2015), Annex 29.
278
6.119 For the foregoing reasons, both the DRC’s claims concerning the number
of personal injuries resulting from Uganda’s intervention and its attempts to place
a value on those injuries are wholly speculative and unproven.
279
CHAPTER 7
THE DRC’S CLAIMS RELATING TO HARM TO PROPERTY ARE
UNSUPPORTED BY EVIDENCE AND METHODOLOGICALLY
FLAWED
7.1 The DRC seeks US$ 239,971,970875 in compensation for property damages
allegedly caused by Uganda. This amount includes:
 US$ 41,524,613 for Ituri;876
 US$ 17,323,998 for Kisangani;877
 US$ 5,526,527 for Beni;878
 US$ 2,680,000 for Butembo;879
 US$ 97,550 for Gemena;880
 US$ 97,412,090 for the National Electricity Company;881 and
 US$ 69,417,192 for material damages to the Congolese Army.882
7.2 As was true with respect to its claims discussed in the previous chapters,
the DRC fails to sustain its burden of proving these property claims with
875 DRCM, para. 7.64. Uganda notes that the DRC failed to properly add the subheads of damages
it claims. The sum of the individual heads of damages that the DRC claims for the different regions,
the National Electricity Company and the Congolese Army is in fact US$ 233,981,970, not the US$
239,971,970 stated.
876 Ibid., para. 7.44.
877 Ibid., para. 7.46.
878 Ibid.
879 Ibid.
880 Ibid.
881 Ibid., para. 7.47.
882 Ibid., para. 7.48.
280
convincing evidence that shows, with a high degree of certainty, the exact injury
suffered as a result of specific internationally wrongful acts of Uganda, or the
valuation of the alleged injury.883
7.3 Section I of this Chapter discusses the standard techniques for proving and
placing a value on property damages in international law (which the DRC
Memorial declines to follow). Section II then demonstrates that the DRC’s
property claims are unsupported by evidence and methodologically flawed.
I. The DRC’s Claims Are Not Based on the Standard Method or
Evidence for Proving the Existence and Valuation of Property
Damage
7.4 This chapter principally focuses on the systematic legal and factual
problems with the DRC’s claims for property damage. At the outset, however, it is
important to note that the DRC’s claims are not based on the standard method or
evidence for proving the existence and valuation of property damage that have long
been employed by States and international courts and tribunals.
7.5 A survey of that practice indicates that proving compensation for property
damage entails several elements, including: (1) identification of the specific
property alleged to have been damaged, its location and the date of damage; (2)
information as to the nature of the damage, such as whether the property was
damaged in whole or in part; and (3) the fair market value, replacement value or
liquidation value of the property.884
883 See Chapter 3 and Chapter 4.
884 See generally Edwin Borchard, Diplomatic Protection of Citizens Abroad or the Law of
International Claims (1916); Jackson H. Ralston, The Law and Procedure of International
Tribunals (1926); Marjorie M. Whiteman, Damages in International Law (1937)); A. H. Feller, The
281
7.6 Such elements typically are proven through a range of documentary
evidence typically available with respect to property, such as receipts, detailed
inventories, title documents, insurance records, government surveys and tax
records, as well as evidence as to the property loss, such as insurance claims, tax
adjustments, replacement estimates, or receipts for replacement or reconstruction
of the property. In addition to documentary evidence, sworn affidavits of the
property owner typically would set forth the specific circumstances of the property
loss. In calculating the value of the property, evidence may be presented that
establishes: (1) the capital value of the lost property; (2) compensation for loss of
profits (lucrum cessans), if relevant; and (3) incidental expenses associated with
the loss of property.
7.7 This approach can be seen in the Court’s award of compensation for
property damage in the Corfu Channel885 and Diallo886 cases, as discussed in
Chapter 3, and in the pleadings before the Court in cases such as Elettronica Sicula
S.p.A. (ELSI).887 So, too, can it be seen in the practice of regional human rights
courts888 and in claims settlement agreements negotiated between States.889 In
recent years, the methodology and evidence necessary to establish property loss
Mexican Claims Commissions, 1923-1934: A Study in the Law and Procedure of International
Tribunals (1935); Green Hackworth, ed., Digest of International Law, Vol. 5 (1943); Richard B.
Lillich, ed., International Law of State Responsibility for Injuries to Aliens (1983); Christine D.
Gray, Judicial Remedies in International Law (1987); Richard B. Lilich, ed., The Valuation of
Nationalized Property in International Law (1972).
885 Corfu Channel (Compensation, 1949).
886 Diallo (2012).
887 Case Concerning Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy), Judgment,
I.C.J. Reports 1989, p. 15.
888 See Dinah Shelton, Remedies in International Human Rights Law (2015), pp. 315-375.
889 See generally Richard B. Lilich, International Claims: Postwar British Practice (1967); Burns
H. Weston, International Claims: Postwar French Practice (1971); B. Weston & R. Lillich,
International Claims: Their Settlement by Lump Sum Agreement (1975); Burns H. Weston et al.,
International Claims: Their Settlement by Lump Sum Agreements, 1975-1995 (1999).
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has been extensively developed through the jurisprudence of the Iran-U.S. Claims
Tribunal890 and in myriad cases before ad hoc investor-State arbitral tribunals.891
7.8 Alternative techniques may be possible for addressing mass claims for
property damage before complex claims commissions but, as explained in Chapter
3, those techniques are not appropriate in the context of inter-State litigation before
an international court. Uganda is mindful that gathering evidence of property
damage that occurred in remote areas during an armed conflict is not without its
difficulties. Yet the central point is that the DRC has provided absolutely no
evidence of the type normally expected to prove the existence and valuation of
specific harm in the form of property damage.
II. The DRC Has Failed to Prove the Extent of the Property Damages It
Claims, and Its Valuation of Those Damages Is Methodologically
Flawed
7.9 Before turning to the specifics of the DRC’s claims concerning property
damage, it is useful to recall the relevant findings in the Court’s 2005 Judgment on
the merits.
7.10 In 2005, the Court found that Uganda had violated the principles of nonuse
of force in international relations and non-intervention.892 The Court did not,
890 See generally George H. Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal
(Oct. 1996); Charles Nelson Brower, The Iran-United States Claims Tribunal (12 Feb. 1998);
Richard B. Lillich et al., Richard B. Lillich et al., The Iran-United States Claims Tribunal: Its
Contribution to the Law of State Responsibility (1998).
891 See generally Borzu Sabahi, Compensation and Restitution in Investor-State Arbitration:
Principles and Practice (2011); Muthucumaraswamy Sornarajah, The International Law of Foreign
Investment, (2017).
892 Armed Activities (2005), para. 345(1).
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however, indicate that those violations resulted in any of the property losses now
claimed by the DRC.
7.11 The Court also found that the conduct of Uganda’s armed forces violated
its obligations under human rights law and international humanitarian law.893 In
that context, the disposif of the 2005 Judgment held that Uganda “destroyed
villages and civilian buildings”. While the Court also found that Uganda failed “to
distinguish between civilian and military targets and to protect the civilian
population in fighting with other combatants,” “incited ethnic conflict” and “failed
to take measures to put an end to the conflict,” the Court’s dispositif does not
identify any specific property harm resulting from those violations. The dispositif
to the 2005 Judgment thus contains no express finding that Uganda’s armed forces
caused harm to the property of the DRC’s National Electricity Company or other
State companies, or Congolese armed forces.
7.12 Finally, the Court found that Uganda failed, as an occupying Power in Ituri
district, to take measures to respect and ensure respect for human rights and
international humanitarian law.894 Here again, the dispositif does not identify
specific types of property harm that resulted from such conduct, such as looting
(even though elsewhere in the dispositif the Court expressly identified “looting” in
the context of the exploitation of natural resources).895
7.13 In the text of the 2005 Judgment, the basis for the Court’s finding
concerning “destroyed villages and civilian buildings” appears to have been four
893 Ibid., para. 345(2).
894 Ibid., para. 345(3).
895 Ibid., para. 345(4).
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UN reports and a resolution of the UN Security Council,896 three of which were
focused on Beni, Kisangani or Ituri, and two of which addressed conduct by both
Rwanda and Uganda. The Court’s references to those reports mention only
property damage and destruction of houses, villages and localities but, again, make
no reference to other kinds of property harm, such as to the property of the DRC’s
National Electricity Company, other State companies or Congolese armed forces.
7.14 With respect to Uganda’s failure to protect the civilian population and to
distinguish between combatants and non-combatants, the text of the 2005
Judgment cites to two UN reports. With respect to property harm, the Court noted
that one report (concerning Kisangani) suggested that, as a result of the conduct of
both Rwanda and Uganda, more than 4,000 houses were partially damaged,
destroyed or made uninhabitable; 69 schools shelled; other public buildings badly
damaged; and medical facilities and the cathedral damaged.897 A second report
(concerning Ituri) stated that houses and shops were looted and houses were shelled
as a result of conduct by both the UPC and Uganda.898 The Court thus identified
only two localities relevant to this aspect of its findings.
7.15 With respect to property loss from the incitement of ethnic conflict, the text
of the 2005 Judgment cites to three UN reports, which were said to be corroborated
by a Human Rights Watch report. With respect to property harm, the Court only
noted that one of those reports identified Uganda as encouraging and supporting
the seizure of land by the Hema.899
896 Ibid., para. 206.
897 Ibid., para. 208.
898 Ibid.
899 Ibid., para. 209.
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7.16 The findings by the Court concerning property damages were therefore very
general in nature. Consequently, they cannot form a basis for identifying or valuing
specific damages attributable to Uganda. Uganda has previously recalled that in
2005 the Court expressly placed the burden on the DRC to prove the exact injury
suffered as a result of the specific actions of Uganda constituting internationally
wrongful acts for which it is responsible. As demonstrated below, the DRC
Memorial does not meet this with respect to any of the alleged property damages,
whether in Ituri, Kisangani or any other areas.
A. ITURI
7.17 The DRC claims US$ 41,524,613 in compensation for property damages
caused “by the various protagonists” in Ituri during its occupation by Uganda.900
The claimed amount includes:
 US$ 12,956,200 for destruction of houses;
 US$ 21,250,000 for destruction of infrastructure; and
 US$ 7,318,413 for looting.901
There is no basis to award the compensation the DRC seeks.
7.18 As discussed below, the DRC does not even attempt to prove that any of
the claimed damages were directly caused by Uganda. Instead, it seeks to ascribe
to Uganda responsibility for damages caused by “the various protagonists” in Ituri
based on the bare allegation that those damages would not have occurred had
900 DRCM, para. 3.45 (Translation by Counsel, original in French: “par les différents
protagonistes”.).
901 Ibid., para. 7.43.
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Uganda fulfilled its duties as an occupying Power. Yet the DRC offers no evidence
proving specific measures that Uganda failed to take in Ituri or establishing a direct
causal link between the failure to take such measures and particular damages.
7.19 Nor has the DRC adduced any evidence reliably proving the valuation of
such damages. None of the claimed amounts has support in credible, still less
convincing, evidence. The only thing the DRC Memorial offers are summary tables
untethered to evidence of any kind. This makes it impossible to determine with any
level of certainty that the compensation claimed corresponds to actual damages.
Houses
7.20 The DRC contends that the number of houses damaged “as a result of the
non-performance by Uganda of its obligations as the occupying Power of Ituri,
between 1998 and 2003, is a total of 8,693”.902 It further asserts that “one can
reasonably estimate that those houses can be distinguished pursuant to the
following distribution allocation: 5% for luxury houses, 15 % for medium houses
and 80% for simple houses”.903
7.21 Based on this ostensible “distribution allocation”, the DRC seeks
compensation for damages allegedly caused to:
 435 luxury houses;
902 Ibid., para. 3.45(c) (Translation by Counsel, original in French: “en conséquence du manquement
par l’Ouganda à ses obligations en tant que puissance occupante de l’Ituri, entre 1998 et 2003, se
monte à 8.693.”).
903 Ibid., para. 7.35 (Translation by Counsel, original in French: “on peut raisonnablement estimer
que les habitations peuvent être distinguées en fonction de la clé de répartition suivante: 5%
d’habitations de luxe, 15% d’habitations intermédiaires, et 80% d’habitations légères”.).
287
 1,304 medium houses; and
 6,954 small/simple houses.904
7.22 To quantify these ostensible damages, the DRC applies a three-tier scale
allegedly “created on the basis of the cost to rebuild the houses”, which the DRC
claims to be:
 US$ 10,000 for a luxury house;
 US$ 5,000 for a medium house; and
 US$ 300 for a small/simple house.905
7.23 The DRC then multiplies the number of damaged houses by their nominal
rebuilding costs:
 US$ 4,350,000 for luxury houses (435 x US$ 10,000);
 US$ 6,520,000 for medium houses (1304 x US$ 5,000); and
 US$ 2,086,200 for small/simple houses (6,954 x US$ 300).906
The total compensation claimed under this head of damages is thus US$
12,956,200.907
904 Ibid., paras. 7.35, 3.45(c).
905 Ibid., para. 7.35 (Translation by Counsel, original in French: “établi sur la base de la valeur de
reconstruction des habitations en cause.”).
906 Ibid., para. 7.36.
907 Ibid., para. 7.37.
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7.24 At each step of the way, the numbers on which the DRC bases its
calculations are essentially made up; they are not based on any serious evidence.
As such, the claim is unfounded.
7.25 As regards the extent of damages, the DRC submits no reliable evidence to
support its contention that 8,693 houses were damaged in Ituri. The number appears
wholly arbitrary. So, too, does the “distribution allocation” of houses into the
categories of “luxury”, “medium” and “small/simple.”
7.26 The DRC relies entirely on Annex 1.3 to the Memorial to support these
numbers.908 That annex, however, is nothing more than a summary table entitled
“Valuation of property damages in Ituri” ostensibly based on “the investigations
conducted by the DRC”.909
7.27 This table contains no evidence on which the Court can rely. No building
is identified, even with respect to a general location. No type of damage, whether
partial or total, is indicated. (Apparently, all houses were either completely
unharmed or completely destroyed, with nothing in between.) Nor is the day,
month or even year of the damage indicated.
7.28 Equally important, there is also no proof that any of this alleged damage
was caused by the UPDF or resulted from Uganda’s failure to exercise due
diligence as an occupying Power. The DRC appears simply to assume that any
damage to houses occurring in Ituri at unspecified times and locations is
attributable to Uganda. Annex 1.3 therefore affords no basis to prove with any
908 Ibid., para. 3.45(c), notes 313-316.
909 Ibid., para. 3.45(c) (Translation by Counsel, original in French: “les enquêtes diligentées par la
RDC”.); “Evaluation Pertes des Biens” in file Victimes_PerteBien_ITURI, DRCM Annex 1.3.
289
degree of confidence, much less certainty, the extent of damages that may have
been caused by Uganda’s wrongful acts.
7.29 As regards the valuation of damages, the DRC has equally failed to adduce
any evidence showing that the putative three-tier scale for rebuilding costs reflects
actual rebuilding costs. No documents or, indeed, evidence of any kind is offered
to establish the costs of rebuilding even a single house. Simply put, the alleged
repair/rebuilding costs appear entirely arbitrary.
7.30 The credibility of this aspect of the DRC’s claims is further undermined by
simple arithmetic errors that have the effect of inflating the quantum of damages
sought. In many instances, the DRC erroneously multiplies its own figures, as
illustrated in the examples excerpted from the DRC’s tables below.
910
910 “Evaluation Pertes des Biens” in file Victimes_PerteBien_ITURI, p. 137, DRCM Annex 1.3.
290
911
912
7.31 In an effort to provide additional support for its claims concerning property
loss, the DRC Memorial also points to several incidents allegedly involving
Ugandan forces. It does this not for purposes of proving specific property losses
attributable to Uganda and the quantification of those loss, but rather for purposes
of “illustrating” that some harm occurred. Yet, even here, the DRC’s assertions
frequently lack credibility.
7.32 For example, in paragraph 3.42 of its Memorial, the DRC lists incidents of
property destruction in Ituri, some of which include specific numbers of allegedly
911 Ibid., p. 9.
912 Ibid., p. 99.
291
damaged houses. Paragraph 3.42(j) asserts that “from the locality of Zumbe, which
was attacked on October 15 and 16, 2002 by Hema militiamen accompanied by
Ugandan soldiers, ‘the attackers burned all the surrounding villages;’ at that time,
‘more than 500 buildings, including health centers and schools’ were destroyed”.913
The DRC cites the UN Mapping Report for support. But that report neither
mentions Uganda in the context of the mentioned incident nor ascribes any of the
resulting damages to Uganda. To the contrary, the UN Mapping Report expressly
links the damages to UPC militiamen, not Uganda:
“Between 15 and 16 October 2002, UPC militiamen
killed at least 180 people, including civilians, in
Zumbe in the Walendu Tatsi community. The
militiamen also raped at least 50 women. Most of the
victims were killed with machetes or spears. Some
were shot dead. Some survived but were badly
mutilated. Having looted large amounts of property
and stolen 1,500 head of cattle, the UPC troops set
fire to the village, destroying more than 500
buildings, including health centres and schools.
Zumbe was an FRPI fiefdom”.914
7.33 Even if the DRC had correctly cited to this incident, it would still be of no
assistance to the DRC. The Court previously made clear that the conduct of rebel
groups is, without more, not attributable to Uganda. While damages caused by
rebels in Ituri that was the direct result of Uganda’s failure to take specific measures
913 DRCM, para. 3.42(j) (Translation by Counsel, original in French: “à partir de la localité de
Zumbe, attaquée les 15 et 16 octobre 2002 par des milices hema accompagnées de soldats
ougandais, ‘les attaquants ont incendié tous les villages voisins’; à cette occasion, ‘plus de 500
édifices, parmi lesquels des centres sanitaires et des écoles’ ont été détruits”.) (emphasis added).
914 U.N. Mapping Report, para. 414 (emphasis added), Annex 25.
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as an occupying Power might be compensable, the DRC presents no evidence in
support of any such failure in relation to the alleged harm to houses in Ituri.915
7.34 In conclusion, because the DRC has failed to prove the exact damage to
houses in Ituri that was suffered as a result of specific actions of Uganda
constituting internationally wrongful acts, there is no basis to award compensation
to the DRC for this head of damages.
Infrastructure
7.35 The DRC also seeks compensation for damages to infrastructure in Ituri.
Specifically, it claims US$ 21,250,000 in compensation for the alleged destruction
of 200 schools, 50 health facilities and 50 office buildings.916 The amount of
compensation claimed is based on the putative “average cost” of those facilities,
which the DRC says “may be estimated” at US$ 75,000 for an educational facility,
US$ 75,000 for a health facility and US$ 50,000 for an office building.917 There is
915 For the same reasons, the DRC’s other illustrative incidents related to damages caused by rebels
in Ituri cannot form a basis of compensation even if the DRC had elected to use them for that
purpose. This specifically relates to illustrative incidents mentioned in paragraphs 3.42 (b), (c), (f),
(h), (i), (j), (k), (l) of the DRC Memorial, which mention damages that rebels caused to houses,
schools, health care facilities and administrative buildings. It also bears emphasis no damage
resulting from those illustrative incidents is ascribed to Uganda’s wrongful actions or omissions to
take specific measures as an occupying Power in Ituri.
916 DRCM, paras. 7.39-7.42.
917 Ibid., para. 7.39. As regards schools, the DRC claims that “overall, the average cost of an
educational facility may be estimated at US$ 75,000” (Translation by Counsel, original in French:
“Globalement, la valeur moyenne d’une infrastructure d’enseignement peut être estimée à 75.000
dollars des Etats-Unis”.). The total amount of compensation claimed by the DRC for this item “is
thus 200 x US$ 75,000; that is, US$ 15,000,000 (fifteen million United States dollars)” (Translation
by Counsel, original in French: “est donc de 200 x 75.000 dollars, soit 15.000.000 (quinze millions)
dollars des Etats-Unis”.).
In regards to health facilities, the DRC claims that “the average cost of a health facility may be
estimated at US$ 75,000” (Translation by Counsel, original in French: “Globalement, la valeur
moyenne d’une infrastructure de santé peut être estimée à 75.000 dollars des Etats-Unis”.). The
total amount of compensation claimed by the DRC for this item “is thus 50 x US$ 75,000; that is,
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no basis on which the Court can award the compensation claimed because the DRC
has offered no evidence as to the existence or valuation of the alleged damages, nor
has it made any effort to prove that the damages directly resulted from Uganda’s
wrongful acts.
7.36 The DRC’s assertions concerning the extent of the damages (i.e., the
number of schools, health facilities and office buildings destroyed) are unfounded.
7.37 As regards educational facilities, the DRC cites to the 2003 Second Special
Report on the MONUC (the “2003 Second Special Report”) as support for the
assertion that Uganda is responsible for the destruction of 200 schools.918 That
report, however, does not support the DRC’s claim. It does nothing more than
observe generally, without referring to any evidence, that during the entire armed
conflict in the DRC, 200 schools were damaged. It says nothing about the damage
having been caused by UPDF soldiers or having resulted from Uganda’s failure to
perform its obligations as the occupying Power.
US$ 3,750,000 (three million seven hundred fifty thousand United States dollars)” (Translation by
Counsel, original in French: “est donc de 50 x 75.000 dollars, soit 3.750.000 (trois millions sept
cent cinquante mille) dollars des Etats-Unis”.); DRCM, para. 7.40.
In regards to office buildings, the DRC claims that “overall, the average cost of an office building
may be estimated at US$ 50,000.” (Translation by Counsel, original in French: “Globalement, la
valeur moyenne d’une infrastructure administrative peut être estimée à 50.000 dollars des Etats-
Unis”.). The total amount of compensation claimed by the DRC for this item “is thus 50 x US$
50,000; that is, US$ 2,500,000 (two million five hundred thousand United States dollars)”
(Translation by Counsel, original in French: “est donc de 50 x 50.000 dollars, soit 2.500.000 (deux
millions cinq cent mille) dollars des Etats-Unis”.); DRCM, para. 7.41.
918 Ibid., para. 3.45(a).
294
7.38 The DRC also fails to show that the number it selects from the 2003 Second
Special Report is corroborated by other credible sources.919 Notably, the UN
Mapping Report, which examined the 2003 Second Special Report (among many
other sources), does not mention any number of destroyed schools, let alone that
Uganda is responsible for the destruction any school.
7.39 Here again, the number on which the DRC bases its claims is contradicted
by its own “investigations”. Annex 1.3 to the DRC Memorial lists only 18 schools
and 12 kindergartens (“jardin scolaire”) as having been damaged.920 But even these
vastly smaller numbers as presented in the table on “Evaluation Pertes des Biens”
are facially unfounded; no underlying documentation is presented to support the
listed information. There is also no indication of the location of the schools, their
size or other relevant information.
7.40 Moreover, even if the numbers were somehow supported (quod non), the
DRC offers no evidence proving that the table reflects damage causally linked to
Uganda’s wrongful conduct. No supporting information is adduced with respect to
when the damage occurred, who caused it, the extent of the damage or the cost of
repair or reconstruction.
7.41 As regards the alleged number of damaged health facilities, the DRC does
not go beyond the bare assertion that “on the basis of the data that it has available
to it, the [DRC] estimates that it is reasonable to use the number of 50 dispensaries
919 Armed Activities (2005), para. 205 (evidence contained in United Nations documents may be
taken into account “to the extent that they are of probative value and are corroborated, if necessary,
by other credible sources”.).
920 “Evaluation Pertes des Biens” in file Victimes_PerteBien_ITURI, DRCM Annex 1.3.
295
and hospitals”.921 The DRC, however, presents no evidence on which this Court
can conclude that 50 healthcare facilities in fact were destroyed, or that their
destruction directly resulted from specific wrongful conduct attributable to
Uganda. Here, once more, the DRC Memorial contains no documentation or other
information establishing when the damage occurred, who caused it, the extent of
the damage or the cost of repair/reconstruction
7.42 To the contrary, the information the DRC does offer shows a different
picture. The table on “Valuation of property damages in Ituri” included in Annex
1.3 refers to the destruction of just seven hospitals and one dispensary.922 Even
then, the eight healthcare facilities are not identified, the extent of their damages
(whether minimal, partial or total) is not indicated, and the causal link to the
specific acts of is not established. Moreover, even if, quod non, it was accepted as
reliable and true, the summary table does not afford a basis for compensation.
7.43 With respect to the alleged destruction of 50 administrative buildings
(“offices, lodgings of public officials, prisons, etc.”),923 the DRC’s claim is equally
baseless. The DRC itself states that “the data sheets prepared by the investigators
of the DRC” list only “twelve specific cases of destruction”.924 But, the DRC
contends, this is allegedly only “a fraction of the damages that were actually
921 DRCM, para. 3.45 (b) (Translation by Counsel, original in French: “sur la base des données dont
elle dispose, la République démocratique du Congo estime raisonnable de retenir le nombre de 50
dispensaires et hôpitaux”.).
922 “Evaluation Pertes des Biens” in file Victimes_PerteBien_ITURI, pp. 41-42, 58, DRCM Annex
1.3.
923 DRCM, para. 3.45(c) (Translation by Counsel, original in French: “bureaux, logements de
fonctionnaires, prisons, etc.”.).
924 Ibid. (Translation by Counsel, original in French: “les fiches établies par les enquêteurs de la
RDC”; “[d]ouze cas spécifiques de destruction”.).
296
experienced”.925 The DRC therefore “deems it reasonable to use… the number of
50 administrative buildings destroyed in the Ituri region from 1998 to 2003”.926
7.44 As with the other elements of the DRC’s claims, such subjective assertions
of reasonableness cannot form a basis for the award of damages.927 The DRC has
entirely failed to meet the burden the Court imposed on it in 2005: to prove the
exact injury directly caused by specific wrongful conduct attributable to Uganda.
As elsewhere, the DRC offers no documentation showing when this property
damage occurred, who caused it, the extent of the damage or the cost of
repair/reconstruction.
7.45 The DRC has not only failed to prove that Uganda is responsible for the
destruction of 200 schools, 50 health facilities and 50 office buildings; it has also
failed to prove the reliability of its ostensible “valuation methodology”.
7.46 The DRC provides no explanation, much less evidence, to support the
alleged “average costs” for the damages claimed—US$ 75,000 for an educational
facility, the same US$ 75,000 for a health facility and US$ 50,000 for an office
building. Again, these numbers appear to have been selected at random for the
purpose of this litigation. They do not even purport to be grounded in the actual
repair or reconstruction costs for the allegedly damaged schools, health facilities
and office buildings.
925 Ibid. (Translation by Counsel, original in French: “une fraction des dommages de cet ordre qui
ont été réellement subis”.).
926 Ibid. (Translation by Counsel, original in French: “La RDC estime raisonnable de retenir … le
nombre de 50 bâtiments administratifs détruits dans la région de l’Ituri entre 1998 et 2003”.).
927 Ibid.
297
7.47 This is all the more remarkable in that such information is entirely within
the DRC’s control. The DRC could have and should have surveyed such damage
and prepared detailed estimates as to the specific costs of repairing or
reconstructing such buildings. If any such repairs or reconstruction had actually
been done, the DRC can also be expected to have documentary evidence proving
costs incurred. Yet the DRC provides no such evidence. Instead, it invites the Court
simply to assume the nature and scope of such damage, and a connection to the
specific acts of Uganda.
7.48 The DRC has failed to prove the exact damage to infrastructure in Ituri that
was suffered as a result of specific actions of Uganda constituting internationally
wrongful acts. There is, therefore, no basis to award the compensation the DRC
seeks under this head of damages.
Movable Property
7.49 The DRC claims US$ 7,318,413 in compensation for property allegedly
looted as a result of Uganda’s non-compliance with its obligations as an occupying
Power in Ituri.928 The claimed amount, the DRC contends, is supported by “a
detailed list of the property looted”929 prepared on the basis of “worksheets created
by the DRC’s investigators”.930
928 Ibid., para. 7.43.
929 Ibid., para. 3.48 (Translation by Counsel, original in French: “une liste détaillée des biens
pillés… est reprise en annexe du présent chapitre”.).
930 Ibid., para. 7.43 (Translation by Counsel, original in French: “fiches établies par les enquêteurs
de la RDC”.).
298
7.50 The DRC states that this “detailed list” is “attached in the annex to [Chapter
3]”of the Memorial.931 There is, however, no such annex to that chapter. The DRC
appears to be referring instead to Annex 1.3, which contains a file entitled
“Evaluation Pertes des Biens”, and consists of a summary table purportedly listing:
(1) the victims of looting; (2) the property looted; and (3) its value.932
7.51 Here as elsewhere, however, the DRC offers no supporting evidence
showing that the property listed in its summary table was actually looted, or that it
was looted by UPDF soldiers or as a result of Uganda’s non-performance of its
obligations as an occupying Power. For this reason alone, the DRC cannot recover
the compensation it seeks.
7.52 This element of the DRC’s claim must be rejected for another reason as
well: the DRC’s valuation of the property listed in the summary table appears
wholly arbitrary. The DRC has not adduced even a single document proving the
ownership and value of any of the allegedly looted property. Nor has the DRC
explained the basis for the nominal values it assigns to the various items of property
listed in the summary table.
7.53 In nearly one thousand instances of alleged looting listed in the table
“Victimes_PerteBien_ITURI”, the DRC does not even identify the affected
property. Instead, it uses vague descriptions such as “various property items”
(“divers biens”), “merchandise”, “furniture” or “kitchen utensils”, without
particularising actual items of property.933
931 Ibid., para. 3.48.
932 “Evaluation Pertes des Biens” in file Victimes_PerteBien_ITURI, DRCM Annex 1.3.
933 “Evaluation Pertes des Biens” in file Victimes_PerteBien_ITURI, DRCM Annex 1.3 (Translation
by Counsel, original in French: “marchandise”; “meuble”; “ustensils de cuisine”). There are for
299
7.54 For each of these unspecified property items, the DRC also assigns, without
proof, markedly high monetary values, ranging from US$ 10,000 to over US$
1,000,000 in the case of “various property items”. The DRC claims more than US$
2 million in compensation for the ostensible looting of “various property items”
alone.934
7.55 DRC’s “detailed list of the property looted” also reveals a notable
uniformity in the values of property items that defies credibility. There are, for
example, more than 400 instances of property generically described as “furniture”,
which allegedly belonged to different victims from different locations.
Nevertheless, in each and every one of these cases, the furniture is uniformly valued
at an identical price (US$ 5,000).935 The DRC similarly places a uniform value on
other property items, without regard to location or the identity of the alleged
victim.936 These include vehicles valued at US$ 10,000 in nearly all instances and
example, 82 instances of “marchandise;” 463 instances of “meuble;” and 43 instances of “divers
biens”.
934 In this category, many claims range between US$ 10,000 and US$ 100,000; others between US$
100,000 and US$ 1,000,000; one is above US$ 1,000,000. Yet none of those claims is accompanied
by any explanation and proof as to the actual extent of damages directly caused by Uganda’s
wrongful acts and the method of their valuation. See, e.g., “ Evaluation Pertes des Biens” in file
Victimes_PerteBien_ITURI, pp. 49, 60, 169, DRCM Annex 1.3.
935 In some instances, furniture (“meuble”) is valued at US$ 5,000, US$ 8,000 and US$ 10,000. But
those “valuations” strain credulity. For example, at page 15 of the summary valuation table, the
DRC alleges that some unspecified furniture was allegedly destroyed as a result of alleged
destruction of a small/simple house (“habitation legère”). The damage to “furniture”, the DRC
claims, is “assessed” to be US$ 10,000. On its face, it is implausible that small/simple house, valued
at US$ 300, could have been furnished with items exceeding the value of the house in more than 30
times. See “Evaluation Pertes des Biens” in file Victimes_PerteBien_ITURI, p. 15, DRCM Annex
1.3.
936 “Evaluation Pertes des Biens” in file Victimes_PerteBien_ITURI, DRCM Annex 1.3. It bears
emphasis that unspecified property generically stated as “merchandise” is valued in all instances at
the same price of US$ 1,000; cows (“vache”) are uniformly valued at US$ 300 per one animal in
more than 300 instances; vehicles (“véhicule”) in nearly all cases are valued at US$ 10,000 per item
regardless of their condition and location; bicycles (“vélo”) at US$ 100 per bicycle; televisions
(“télévision”) are valued at US$ 250 in all cases; goats (“chevre”) are valued at US$ 100 in more
than 500 instances; and utensils (“ustencils de cuisine”) are valued at US $200 in nearly all cases.
300
televisions, uniformly valued at US$ 250.937 In other words, the DRC’s valuations
numbers are not based on particularised information and do not reflect actual
damages; they appear instead to have been selected at random by the DRC for use
in this litigation.
7.56 All of this results in exorbitant and arbitrary claims. Just for allegedly
looted “furniture”, for example, the DRC claims compensation totaling US$ 2
million. Instead of being supported by evidence and based on credible valuation
methodologies, the DRC’s claim for compensation for looting is an edifice of
speculation built on a foundation of conjecture. Indeed, the DRC’s claim is so
arbitrary and so speculative, that it nowhere takes the trouble to explain how it
arrived at the figure for the total amount of compensation it seeks for looting (US$
7,318,413). Uganda has diligently searched and searched again for the basis on
which this amount was calculated but it is nowhere to be found in the DRC
Memorial or its annexes.
7.57 Because the DRC has failed to prove the exact damage for looted property
in Ituri suffered as a result of specific actions of Uganda constituting internationally
wrongful acts, there is no basis for the award compensation the DRC seeks under
this head of damages.
B. KISANGANI
7.58 The DRC claims US$ 17,323,998 in compensation for property damage
allegedly suffered in Kisangani. This amount, according to the DRC, covers six
categories: damage to houses; looting or destruction of personal property;
destruction of educational and medical institutions; damage to places of worship;
937 “Evaluation Pertes des Biens” in file Victimes_PerteBien_ITURI, DRCM Annex 1.3.
301
damage to public companies; and damage to private companies.938 The DRC
Memorial nowhere explains what portion of the total sought is apportioned among
these six categories, a failure that makes it impossible to determine how and on
what basis the DRC arrives at the total amount claimed (US$ 17,323,998).
7.59 To this unexplained sum, the DRC also adds nearly US$ 100 million (US$
97,412,090, to be precise) for damages allegedly caused to the National Electricity
Company.939
7.60 As will be demonstrated below, the DRC has failed to prove any property
damage in Kisangani that was directly caused by Uganda’s specific actions
constituting internationally wrongful acts. It has equally failed to prove the value
of any such property loss.
1. Houses
7.61 The DRC does not specify the amount of compensation it seeks for damages
allegedly caused to houses in Kisangani. Nor can the amount sought be inferred
from the materials annexed to the DRC Memorial . Indeed, those materials offer
conflicting accounts of the number of houses allegedly damaged, indicate no clear
valuation methodology and fail to show that any of the putative damages resulted
from specific wrongful acts of Uganda.
7.62 The DRC Memorial asserts that, in Kisangani, Uganda caused damages to
“100 [houses] in August 1999, 100 in May 2000, and 4,083 in June 2000, that is, a
938 DRCM, para. 4.71.
939 Ibid., para. 7.47.
302
rounded total of 4,300 damaged houses”.940 This claim has no support in the cited
sources, however.
7.63 With respect to the damage or destruction of “100 houses in August 1999
and 100 in May 2000,” the sole basis for alleging that such property loss was caused
by Uganda is Annex 4.3 of the Memorial. In that annex, the DRC provides excerpts
selectively clipped from reports by the DRC-based NGOs Groupe Lotus and
Groupe Justice et Libération.941
7.64 Yet the excerpts contained in Annex 4.3 do not state the number of houses
damaged in August 1999 and mention only 21 houses allegedly damaged in May
2000. At best, the DRC’s own evidence therefore only supports a total number of
21 houses during the relevant period, not 200 as the DRC claims in its Memorial.
It is unclear on what basis the DRC selected 200 as the appropriate figure.
7.65 Moreover, the annexed excerpts of the cited NGO reports did not even
purport ascribe responsibility for the damage to those 21 houses to Uganda. Rather,
the reports expressly refer to damages caused by Rwandan and Burundian troops,
940 Ibid., para. 4.68 (Translation by Counsel, original in French: “100 en août 1999, 100 en mai 2000
et 4083 en juin 2000 soit un total arrondi de 4.300 logements endommagés”) (emphasis added). The
nominal total of houses damaged is, of course, 4,283, not 4,300. Here, as elsewhere, the DRC simply
rounds numbers up when it suits its convenience.
941 See, e.g., Atteintes aux biens à Kisangani, pp. 3-4, DRCM Annex 4.3.
303
as well as Congolese rebels,942 and stress the role of “the DRC [g]overnment …
i[n] favoring … the violation of [the] rights” of the Kisangani population.943
7.66 With respect to the damage allegedly caused to 4,083 houses in June 2000,
the DRC mistakenly relies on the UN Inter-Agency Report. That report notably
does not attribute responsibility for the stated damages to Uganda; it merely makes
general observations on the damages caused during military confrontations.
7.67 The DRC also fails to show that the number it selects from the UN Inter-
Agency Report is corroborated by other, credible sources.944 In this respect, it is
telling that the Groupe Lotus —the DRC’s preferred source when it yields higher
numbers—stated that in June 2000 456 houses—roughly 1/10th the number
claimed by the DRC—were damaged. Even then, the Groupe Lotus does not
ascribe responsibility for those damages to Uganda.945
7.68 The DRC’s claim that Uganda caused damage to 4,300 houses in Kisangani
is also refuted by other materials annexed to the DRC Memorial . For example, the
942 See, e.g., Groupe Lotus, Les conséquences de la contraction des alliances et factions rebelles au
nord-est de la RDC – La guerre de Kisangani, Sept. 1999, p. 7, DRCM Annex 4.18; Groupe Lotus,
Les rivalités Ougando-Rwandaises à Kisangani (Mai 2000), p. 3, DRCM Annex 4.19; Groupe
Lotus, Rapport sur la guerre de six jours à Kisangani (Juillet 2000), p. 4, DRCM Annex 4.20;
Conseil de sécurité, Rapport de la mission d'évaluation interinstitutions qui s’est rendue à
Kisangani en application du paragraphe 14 de la résolution 1304 du Conseil de sécurité, U.N. Doc.
S/2000/1153 (4 Dec. 2000), p. 9, DRCM Annex 4.24.
943 Groupe Lotus, Rapport du Groupe Lotus de Kisangani (15 Oct. 1998), p. 11, Annex 4.15
(Translation by Counsel, original in French: “le Gouvernement de la RDC… favorise… les
violations de ces droits”.).
944 Armed Activities (2005), para. 205 (evidence contained in United Nations documents may be
taken into account “to the extent that they are of probative value and are corroborated, if necessary,
by other credible sources”.).
945 Groupe Lotus, Rapport sur la guerre de six jours à Kisangani (Juillet 2000), p. 5, DRCM Annex
4.20 (367 partially affected houses plus 89 deeply affected houses).
304
table entitled “Liste des biens perdus de 1998 à 2003” included with Annex 1.3946
ostensibly summarises the types of property damaged in Kisangani. That table lists
a total of 1,341 houses—not 4,300.947 But even this smaller number is contradicted
by still another table included with Annex 1.3, “Evaluation pertes des biens”.948
This table suggests an even lower number: 1,130 houses.949
7.69 The credibility of any of the numbers presented in the DRC’s tables is called
into question by the absence of any specificity. As was true in the case of the DRC’s
claim for alleged damages to houses in Ituri, not a single house is identified with
specificity: there is no evidence as to location, size or time period when the harm
occurred. There is also no justification given for the breakdown of the allegedly
damaged houses into the three different categories (luxury, medium and
small/simple). In addition, no information is provided as to: the condition of the
property before the alleged damage; the extent of actual damage; and the existence
of a causal connection to Uganda’s specific wrongful acts.
7.70 With respect to the quantum of compensation sought, the DRC Memorial
vaguely alludes to “the amounts emerging” from Annex 2.4 and 4.3.950 Yet, despite
Uganda’s best efforts, it has not been able to discern any comprehensible amounts
“emerging” from those annexes. Annex 2.4 contains only summary tables
synthesising alleged damages occurring in Beni, Butembo and Gemena, not
946 “Liste Biens Perdus de 1998 à 2003” in file Liste Biens Perdus et leurs fréquences KISANGANI,
DRCM Annex 1.3.
947 Ibid., pp. 3-4, DRCM Annex 1.3 (“Habitation de Luxe”: 63; “Habitation Légère”: 220;
“Habitation Moyenne”: 1058; Total: 1,341.).
948 “Evaluation Pertes des Biens” in file Victimes_PerteBien_KISANGANI, DRCM Annex 1.3.
949 Listes numérisées pour Kisangani, Évaluation pertes des biens, DRCM Annex 4.7.d (“Habitation
de Luxe”: 56; “Habitation Légère”: 113; “Habitation Moyenne”: 927; Total: 1,130.)
950 DRCM, para. 7.45 (Translation by Counsel, original in French: “les montants qui en résultent”.).
305
Kisangani. And for its part, Annex 4.3 is merely a collection of uncorroborated
excerpts clipped form reports by Groupe Lotus and Groupe Justice et Libération
that do not set out any valuation methodology or undertake any assessment of
compensation.
7.71 Although not cited in the DRC Memorial, the only place where an attempt
at valuation appears to have been made is at Annex 4.7.d. This annex consists of
an unsigned and unsworn summary table, devoid of any underlying evidence,
entitled “Evaluation pertes des biens”, which lists alleged damages to various
categories of property.951 This table mentions a total of 1,130 houses multiplied by
the following “valuation” scale: US$ 10,000 for luxury houses; US$ 5000 for
medium houses and US$ 1000/500/400/300/150 for small/simple houses.
7.72 Annex 4.7.d. does not indicate what the claimed valuation amounts
represent or how they were derived. Given the similarity (indeed, virtual identity)
of these amounts to those used for houses in Ituri, they appear to be “reconstruction
costs”. Uganda respectfully submits that it is facially implausible that
reconstruction costs would remain the same regardless of the extent of damage and
location. (The DRC also appears to have applied the same reconstruction costs for
houses allegedly damaged in Beni, Butembo, and Gemena.) The similarity with the
claim in respect of houses in Ituri does not end there. As in Ituri, the ostenisble
“reconstruction costs” in Kisangani are entirely without evidentiary support.
7.73 The wholesale lack of evidence and the confusion arising from the disparate
and contradictory numbers as to allegedly damaged houses suggested by the DRC’s
own sources may explain why the DRC Memorial makes no effort to state a clear,
951 Listes numérisées pour Kisangani, Évaluation pertes des biens, DRCM Annex 4.7.d.
306
comprehensible and defensible amount of compensation sought under this head of
damages.
7.74 In any event, the DRC’s failure to prove the exact damage to houses in
Kisangani suffered as a result of specific actions of Uganda constituting
internationally wrongful acts means that there is no basis to award it compensation
under this head of damages.
2. Movable Property
7.75 The DRC has also not expressly stated the amount of compensation it seeks
for alleged acts of looting and destruction of movable property in Kisangani. Nor
has it offered any credible basis for assessing compensation.
7.76 The DRC states that “the number of incidents of [looted or destroyed
property] used… as the basis of its claim for reparation for this category of damages
is equivalent to that of the residences that were destroyed or damaged…that is, a
total of 4,300”.952 This claim cannot be accepted for at least three reasons.
7.77 First, the underlying premise is unfounded. As shown above, the DRC has
failed to prove that Uganda actually damaged or destroyed 4,300 residences in
Kisangani. Second, there is no logical—or even rational—reason to believe that the
numbers of instances of looting can simply be equated to the ostensible number of
houses damaged. Third, in any event, the DRC adduces no evidence to back its
claim; it offers only unsupported assertion.
952 DRCM, para. 4.69 (Translation by Counsel, original in French: “Le nombre d’incidents de cet
ordre retenu par la RDC comme base de sa demande de réparation pour cette catégorie de dommage
est équivalent à celui des habitations détruites ou endommagées… soit 4.300 au total”.).
307
7.78 For all three reasons, this aspect of the DRC’s claim is entirely speculative
and cannot form a credible basis for compensation.
7.79 This aspect of the DRC’s claims is also plainly contradicted by the
summary table entitled “Evaluation pertes des biens” included with Annex 1.3 to
the DRC Memorial . That table, which purports to comprehensively set out all
damages Uganda allegedly caused in Kisangani, lists 2,396 alleged victims of
looting and destruction of movable property, not 4,300.953
7.80 But if 2,396 incidents of looting is the actual basis for this elusive aspect of
the DRC’s compensation claim, it, too, is unproven. The summary table suffers
from the same defects as all the other Congolese tables discussed above (and
below). It contains no evidence as to the owner of the property allegedly damaged,
the extent of the putative damage, the value assigned to property or any direct
causal link to Uganda’s wrongful acts.954 Nor does the table even purport to
articulate the total amount of compensation sought under this head of damages.
7.81 The information presented in this table is further contradicted by another
summary table entitled “Identification des victims et évaluation des dommages:
Pertes des biens (Kisangani)”.955 presented in Annex 4.5.c of the DRC Memorial
but not cited by the DRC in the text of its Memorial. Prepared by the Congolese
Commission of Experts, the table in Annex 4.5.c lists a yet even lower number of
victims who allegedly sustained property damages (1,807 persons) and “values”
953 See “Evaluation Pertes des Biens” in file Victimes_PerteBien_KISANGANI, DRCM Annex 1.3.
954 Here again, it bears emphasis that unspecified property generically stated as clothes (suitcase)
(“habits (valise)”) is valued in nearly instances at the same price of US$ 200; televisions are
uniformly valued at US$ 250 in all instances; vehicles in nearly all cases are valued at US$ 10,000
per item regardless of its condition and location; and bicycles – US$ 100 per bicycle.
955 République Démocratique du Congo, Commission d’Experts, Identification Des Victimes et
Evaluation des Dommages: Pertes des biens, DRCM Annex 4.5.c.
308
those damages at US$ 144,560,000.956 Yet the basis for this amount is unclear
because no value is stated, let alone proven, for nearly all property items summarily
listed.
7.82 Perhaps recognising the arbitrariness of this “valuation”, the DRC then
slashes the amount from the US$ 144,560,000 stated in Annex 4.5.c to the much
lower lump sum of US$ 80,000.957 But this lump sum nowhere appears to figure
into any of the DRC’s calculations. It is thus unclear whether the DRC actually
claims this amount. Even if does, it cannot be accepted for the lack of foundation.
7.83 Because the DRC has failed to prove the exact damage for looting and
destruction of movable property in Kisangani that was suffered as a result of
specific actions of Uganda constituting internationally wrongful acts, it follows that
there is no basis to award compensation for this head of damages.
3. Educational and Medical Institutions
7.84 The DRC also seeks compensation for the harm allegedly caused to
educational and medical institutions in Kisangani.958 Here again, the amount of
compensation is not stated. Nor can an exact number be inferred from the materials
the DRC submits. There is therefore no basis for an award of compensation under
this head of damages.
956 Ibid., p. 215.
957 Ibid., p.1 (where the Congolese Commission of Experts states: “Montant unitaire forfaitaire
d’indemnisation: 80.000 $US”.).
958 DRCM, para. 4.73.
309
7.85 As regards educational institutions, the DRC says it seeks compensation
for damage to 69 schools allegedly caused by Uganda.959 Even if, quod non, that
number had any support in credible evidence, the DRC has made no effort to
quantify its ostensible damages. The DRC’s failure to identify the location, size,
date of harm or exact damage for any of the allegedly damaged schools, let alone
prove that the damage directly flowed from Uganda’s wrongful acts, makes
assessment of compensation impossible.960
7.86 With respect to the assertions that are made, the DRC contradicts itself
multiple times. To see how, the Court need look no further than the materials
apparently prepared by the DRC’s investigators. One of them is DRC Memorial
Annex 4.5.f entitled “Identification des victimes et évaluation des dommages :
associations sans but lucratif (Kisangani)”.961 That annex lists only eight (not 69)
schools and describes the damage allegedly suffered mostly as loss of “personal
and miscellaneous items” (“effets personnels et divers”), not destruction or serious
harm. But then, five of the eight schools are inexplicably omitted from another of
the DRC’s annexes, the purportedly comprehensive Annex 4.7.d entitled
“Evaluation Pertes des Biens”.962
959 Ibid.
960 The U.N. Inter-Agency Report does not ascribe those damages to Uganda but instead merely
makes broad observations on the damages caused during military confrontations. Conseil de
sécurité, Rapport de la mission d’évaluation interinstitutions qui s’est rendue à Kisangani en
application du paragraphe 14 de la résolution 1304 du Conseil de sécurité, U.N. Doc. S/2000/1153
(4 Dec. 2000), DRCM Annex 4.24. In addition, the numbers included in the report are not supported
by any evidence or corroborated by other sources.
961 République Démocratique du Congo, Commission d’Experts, Identification Des Victimes et
Evaluation des Dommages: ASBL et Autres Identités, DRCM Annex 4.5.f.
962 Listes numérisées pour Kisangani, Évaluation pertes des biens, DRCM Annex 4.7.d.
310
7.87 Similar contradictions also pervade the DRC’s valuations of the damage
allegedly caused to these schools. The amount of compensation sought for schools
listed in Annex 4.5.f inexplicably increases when those schools are moved to
Annex 4.7.d. This is shown in the table below:
School US$ in Annex 4.5.f US$ in Annex 4.7.d
Complexe Scolaire Okapi 5,000 (p. 3) 9,610 (p. 80)
Complexe Scolaire Odilo 1,500 (p. 3) 1,630 (p. 80)
Complexe Scolaire Home
Feyen
6,000 (p. 3) 35,315 (p. 80)
Complexe Educatif de
Likunde
4,500 (p. 3) 7,625 (pp. 79-80)
The DRC’s cavalier treatment of such data not only calls into question the accuracy
of these summary tables, but also the accuracy of all of the tables the DRC has
presented to the Court.
7.88 With respect to these particular tables, there is certainly no prima facie basis
for selecting one set of conflicting numbers over the other. Moreover, there is no
basis for doing so based on supporting materials the DRC presents to the Court
because there are no such materials. There is simply no evidence proving that the
alleged damages actually occurred, that they occurred as a result of Uganda’s
specific wrongful actions or that the valuations stated are accurate and reflect actual
damages.
7.89 As regards medical institutions, the DRC claims that Uganda’s “fighting”
caused damage to 13 hospitals in Kisangani.963 The claim rests solely on
unsupported and uncorroborated statements clipped from a single NGO source:
963 DRCM, para. 4.74 (Translation by Counsel, original in French: “combats”.).
311
Groupe Lotus.964 Aside from lacking meaningful probative value, the statements
by Groupe Lotus actually lend no support to the DRC’s claim in this respect. Taken
at face value, the Groupe Lotus refers to just two incidents, which actually have
nothing to do with damages caused by “fighting”. One allegedly involved “5 rebels,
including 3 Tutsis and two Ugandans” who allegedly took unspecified medications
and US$ 200 from one hospital.965 Another allegedly involved “Ugandan soldiers”
who took unspecified medications and 300 Congolese Francs at another hospital.966
7.90 Such incidents, even if true and attributable to Uganda, reflect relatively
insubstantial harm to property. Whether the DRC actually relies on those incidents
in calculating its claim for compensation is unclear, as the DRC has not articulated
any compensation amount or the basis for any such amount.
7.91 The DRC has entirely failed to prove the exact damage to educational and
health institutions in Kisangani that was suffered as a result of specific actions of
Uganda constituting internationally wrongful acts. Accordingly, there is no basis
to award it compensation for this head of damages.
4. Places of Worship
7.92 The DRC also seeks compensation for damage allegedly caused to places
of worship in Kisangani. But here, once more, it fails to specify the quantum it
seeks.967
964 Administrations publiques et cultes à Kisangani, DRCM Annex 4.4, pp. 5-7.
965 Ibid., p. 6 (Translation by Counsel, original in French: “5 rebelles dont 3 Tutsi et deux
Ougandais”.)
966 Ibid., p. 7 (Translation by Counsel, original in French: “militaires Ougandais”.).
967 DRCM, para. 4.75.
312
7.93 The evidence the DRC submits to the Court reveals that only one religious
institution, the Archdiocese of Kisangani, submitted any materials purporting to
justify a claim for compensation (in the amount of US$ 4,811,713).968 If this is the
amount the DRC uses as the basis for its unspecified claim, it cannot be accepted.
7.94 The material ostensibly submitted by the Archdiocese of Kisangani consists
only of an unsigned list of estimated repair works prepared under unknown
circumstances on an unknown date.969 Even if this document could be accepted as
genuine and reliable, which it cannot be, there is nothing showing that the estimated
repair works correspond either to the actual costs of repair or, more importantly, to
the damages directly caused by Uganda as opposed to other actors.
7.95 Aside from being unfounded, the stated sum is also facially speculative.
Nearly US$ 2 million of this amount relates to unexplained and unproven entries
such as 5% for “Technical expertise fees,”970 10% for “unexpected physical
events”971 and “50% for increase due to the uncertainty of prices after the crisis,”972
968 Ibid., referring to Annex 4.28 (République Démocratique du Congo, Archidiocèse de Kisangani,
Travaux de Réparation des Dégâts Causés Par la Guerre, B.P. 505 (5-10 June 2000)). In
Administrations publiques et cultes à Kisangani, DRCM Annex 4.4, the DRC also listed some
entities without any explanation or evidence as to the nature, extent, time and cause of their putative
damages.
969 See République Démocratique du Congo, Archidiocèse de Kisangani, Travaux de Réparation
des Dégâts Causés Par la Guerre, B.P. 505 (5-10 June 2000), DRCM Annex 4.28. “Travaux de
réparation des dégâts causés par la guerre du 5 au 10 juin 2000”.
970 Ibid., p. 2 (Translation by Counsel, original in French: “Frais d’expertise Technique 5%”.).
971 Ibid., (Translation by Counsel, original in French: “Imprévus physiques (10%)”.).
972 Ibid., (Translation by Counsel, original in French: “Majoration incertitude liée à l’incertitude
prix 50%”.).
313
which cannot possibly have any direct causal connection to Uganda’s actions.973
These items make the claim even more arbitrary and causally remote.
7.96 Finally, the claimed amount is also mathematically flawed. This is apparent
from the excerpt from the first page of the report setting out the calculation of repair
costs for Cathédrale Notre Dame du Très Saint Rosaire,974 as shown below:
The sum stated in the fourth line item (US$ 191,587.27) can only be reached by
double-counting the speculative 10% related to “unexpected physical events”
stated in the third line (US$ 15,326.96).975 The issue here is not so much about the
973 The calculations set out on pages 1 and 2 of the report in Annex 4.28 reveal that the alleged
repair costs for Cathédrale Notre Dame Du Très Saint Rosaire and “Sites 2 à 17” are US$
287,380.90 and US$ 2,742,019.57, respectively. To those basis amounts, which add up to US$
2,895,288, the report applies unexplained 5% of expert fees, 10% of unexpected physical events,
and 50% of uncertain prices after the crisis. This inflates the claim by US$ 1,916,425. Ibid., pp.1-
2.
974 Ibid., p. 1.
975 Ibid., (Translation by Counsel, original in French: “Imprévus physiques”.). Specifically, it is
mathematically impossible to get to 191,587.27 without adding twice 15,326.96 (153,269.81 +
7,663.49 + 15,326.96 + 15,326.96 = 191,587.27). The misconceived amount of 191,587.27 is then
multiplied by the arbitrary and speculative factor of “50% for increase due to the uncertainty of
314
size of the amount (which itself is doubtful), but about the obviously flawed
calculation, which once again illustrates the problems pervading the DRC’s
calculation of all its damages, thus calling into question the credibility of the
amounts the DRC has put before the Court.
7.97 Because the DRC has failed to prove the exact damage to houses of worship
in Kisangani, including to the Archdiocese of Kisangani, that was suffered as a
result of specific actions of Uganda constituting internationally wrongful acts, there
is no basis to award compensation for this head of damages.
5. Public Companies
7.98 The DRC further seeks compensation on behalf of three public companies
that allegedly suffered damage in Kisangani: the National Electricity Company,
Air Traffic Control and the Central Bank of the Congo.976 According to the DRC
Memorial, each of these entities prepared a “detailed assessment” that forms the
basis of the DRC’s compensation claims.977 Uganda will address each of these
claims in turn.
7.99 On behalf of the National Electricity Company (Société Nationale
d’Électricité (“SNEL”)), a Congolese public company, the DRC claims
compensation in the amount of US$ 97,412,090.978 This claim for nearly US$ 100
prices after the crisis.” The result is not just an arbitrary, but also mathematically flawed, amount
of US$ 287,380.90.
976 DRCM, para. 4.72. Although the DRC alleges that “some 25 public institutions suffered damages
in Kisangani”, none of those institutions are identified except for SNEL, CBC and Air Traffic
Control. (Translation by Counsel, original in French: “quelque 25 administrations publiques ont
subi des dommages à Kisangani”.).
977 Ibid., para. 7.47 (Translation by Counsel, original in French: “évaluation détaillée”.).
978 Ibid.; Société nationale d’électricité (SNEL), Réclamation, N/Réf/DG/2016/4208 (9 juin 2016),
p. 4, DRCM Annex 4.26.
315
million is based solely on an unsigned report that SNEL prepared on 31 May 2016
in response to a request from the Congolese Ministry of Justice, just a few months
before the filing of the DRC Memorial . The Court has, however, routinely
disregarded such unsigned materials prepared by interested persons for purposes
of litigation years after alleged events in question.979
7.100 Moreover, the SNEL’s report is devoid of evidentiary support. Aside from
four pages of conclusory statements under the headings “introduction,” “status of
data collection,” “difficulties encountered,” “guiding principles for valuing wealth”
and “methods of valuation”, the report consists only of summary tables purporting
to list damages to various SNEL centres.980
7.101 Among the basic questions left unanswered in the SNEL report are when
the alleged damages occurred and who caused them. The closest the SNEL report
gets to answering these basic questions are two conclusory statements. One appears
in the transmittal note to the DRC Minister of Justice, where the SNEL Director
for Distribution in the Provinces says that SNEL has received feedback from SNEL
entities on “the effects of Uganda’s armed activities on Congolese territory during
the period 1998-2003”.981 The other appears in the Introduction to the report, which
contends that SNEL has conducted an inventory of all damage caused on the SNEL
979 Armed Activities (2005), paras. 64, 125.
980 Société nationale d’électricité (SNEL), Réclamation, N/Réf/DG/2016/4208 (9 juin 2016), pp.1-
3, DRCM Annex 4.26 (Translation by Counsel, original in French: “Introduction”; “état
d’avancement de la récolte des données”; “Difficultés rencontrées”; “Principes directeurs de
valorisation de patrimoine”; “Méthodologie de valorisation”.
981 Ibid., p. 1 (Translation by Counsel, original in French: “les effets des activités armées de
l’Ouganda sur le territoire Congolais au cours de la période 1998-2003.”).
316
electrical distribution network following “the occupation of a part of Congolese
territory by the Ugandan army.”982
7.102 In the rest of the report, however, SNEL notably eschews any specificity as
to time, place or origin of the damage, making it impossible to establish with any
level of certainty whether damages in fact occurred, whether claims as to the extent
of the damages are accurate or whether the damages were the direct result of
specific wrongful actions by Uganda.
7.103 Moreover, there is no corroborating documentation for the assertions set
forth in the report. For example, there are no internal communications within SNEL
(such as between its headquarters and its local entities), nor communications
between SNEL and DRC government agencies, let alone communications
contemporaneous with the alleged damage. Such evidence should exist from the
normal course of day-to-day operations; no State entity experiences a loss of US$
97 million and fails to record the matter at the time of the loss. The utter absence
of supporting documentation casts serious doubt upon the existence of the damage.
7.104 The SNEL’s valuation methodology also does not inspire confidence. The
2016 SNEL report is apparently based on an earlier report the SNEL prepared in
2008.983 But this earlier report is not submitted into evidence. However, the SNEL
admits that there were shortcomings in the 2008 report, which were carried over
into the 2016 report, infecting it beyond repair. The SNEL admits, for example,
that there are no materials supporting “the value of the relevant assets”984 listed in
982 Ibid.
983 Ibid., p. 2 (Translation by Counsel, original in French: “L’absence des valorisations des
immobilisations concernés [sic]”.).
984 Ibid., p. 4.
317
the 2008 report, and that some values in that earlier report have no support in
market prices or methodology, and are thus open to challenge.985 Nonetheless,
those unproven valuations were taken as final for the assessment of damages in the
2016 report.986
7.105 The 2016 SNEL Report further admits that the absence of documents
confirming property titles for a great number of property items made it impossible
to estimate some damages.987 The acknowledged evidentiary gaps in the 2016
report appear to have been filled in with guesswork and speculation. Finally, unable
to establish the actual costs of the allegedly damaged property, the 2016 SNEL
Report adopts current replacement costs.988 But even those costs are not
corroborated by documentary evidence.
7.106 Such a weak foundation simply cannot support the weight of a nearly US$
100 million claim.
7.107 The arbitrariness of this number is further underscored by its constituent
elements. The single largest element of the SNEL claim concerns “Dégâts et forfait
humains” (“human damage and loss”), which the SNEL claims to be US$
27,163,539.989 This claim is based on nothing more than vague, sometimes
inscrutable, assertions presented in a summary table that, like the report, is
unsigned.990 Some assertions in the table are also incomplete. For example, the
985 Ibid.
986 Ibid., p. 3.
987 Ibid., p. 5.
988 Ibid., p. 3-4.
989 Ibid., p. 4. The actual number claimed is “US$ 27 163 539,11”.
990 Ibid., p. 5, containing “Tableau Récapitulatif des Dégâts Causés par l’occupation de l’armée
Ougandaise”, which lists without any specificity such general entries as “certain agents died because
318
table states that “before the conflict the centre had had … agents,… were
transferred … agents were dead”.991 (The ellipses appear to indicate places where
numbers were supposed to be filled in by the SNEL.) Other elements stated in the
table are entirely unintelligible; for example, the phrase: “project no agent except
the agents of the project”.992
7.108 The most that could be gleaned from the summary table is that, at unknown
times, for unknown reasons, 42 unidentified SNEL employees were transferred out
of unspecified localities and about 13 unidentified employees died under unknown
circumstances. Such an obscure and limited set of “facts” cannot possibly justify a
claim exceeding US$ 27 million. Moreover, aside from failing to prove that any
damage actually occurred, the DRC has utterly failed to present any evidence, let
alone convincing evidence, directly linking the alleged damages to specific wrongful
actions attributable to Uganda.
7.109 The same is true with respect to the other six elements of the claim on behalf
of SNEL, which total approximately US$ 70 million.993 All of those elements are
associated with cryptic abbreviations for unexplained and undocumented
equipment. This is illustrated in table 7.1 entitled “Evaluation of electromechanical
of lack of medical assistance and others were transferred”; “some agents left during the conflict and
others were transferred to Kisangani” (Translation by Counsel, original in French: “certains agents
décédés suite au non accès aux soins et d’autres en mutation” “Quelques agents partis pendant les
hostilités et d’autres mutés vers Kisangani”.).
991 Ibid. (Translation by Counsel, original in French: “Avant les hostilités, le centre avait avait [sic]
… agents… ont été mutés… agents étaient morts”.).
992 Ibid. (Translation by Counsel, original in French: “Projet pas d’agent sauf les agents du projet”.).
993 These elements include: Looting of Thermic or Hydroelectric Centrals (US$ 23,900,759.86);
Destruction of MT/MT stations and MT/BT booths (US$ 9,245,787.20); Damages caused to the
MT, BT and EP networks (US$ 15,864,152.44); Lost profits on sales (US$ 6,543,952); Damages
caused to SNEL’s administrative buildings and residence (US$ 12,255,899.51); Other damages
(US$ 2,438,000).
319
equipment of thermal power plants,” which is presented on page 6 of the 2016
SNEL report:
7.110 As can be seen, the DRC bases a claim to nearly US$ 24 million on nothing
more than one unsigned and unsupported table, which simply lists a number of
320
locations and a number of values of electrical equipment without no information
about the alleged date, extent or other circumstances of the harm to that
equipment.994
7.111 The SNEL Report also claims “lost profits” (“Manque à gagner sur les
ventes”) in the amount of US$ 6,543,953, based on a table that appears on page 14.
This aspect of the claim is equally hopeless. It is based on an alleged loss of
revenues (“recettes”) from the loss of two hydroelectric plants located in Kisangani
and Gbadolite. The lost revenues claimed cover a period of eight years, from 1998
to 2005. In a “Commentary” that appears directly below the table, the authors of
the report explain that this eight-year period “correspond[s] to the period of war”.
7.112 To determine how much revenue was lost at the two plants during each of
these eight years, the authors of the report decided to estimate lost revenues during
the years 2004, 2005 and 2007, and then to calculate an average across those three
years (which is applied retroactively across all eight years). For each of those three
years, global revenues (“recettes globales”) for all of SNEL and estimated revenues
(“recettes estimées”) for the Kisangani and Gbadolite plants are listed. The
“Commentary” explains that the estimated revenues for Kisangani and Gbadolite
for each of the three years were derived by assuming that Kisangani generated 65%
994 Similarly unsigned and unsupported tables form the sole basis for the other categories of the
SNEL’s claim: the claim to “Destruction of MT/MT stations and MT/BT booths” (“Destruction des
postes MT/MT et cabines MT/BT”) is the amount of US$ 9,245,787.20 is based on the summary
table at page 4; the claim to “Damages caused to the MT, BT and EP networks” (“Dégâts subis par
les réseaux MT, BP et EP”) in the amount of US$ 15,864,152.44 rests solely on the summary table
on page 4; the claim to “Lost profits on sales” (“Manque a gagner sur les ventes”) in the amount of
US$ 6,543,952 is based on the summary table 7.9 on page 14; finally, the all-catch claim under the
category “Other damages” (“Autres prejudices”) in the amount of US$ 2,438,000 rests on the
summary table 7.8 on page 13. See Société nationale d’électricité (SNEL), Réclamation,
N/Réf/DG/2016/4208 (9 juin 2016), DRCM Annex 4.26.
321
of global revenues while Gbadolite generated 2% of global revenues (to determine
these percentages, the Commentary says is relied upon 2013-2015 data).
7.113 Yet nowhere does the report establish that these hydroelectric plants were
in fact damaged, in whole or in part. Further, no information is provided as to when
such damage occurred and by whom it was caused. Indeed, the implausible and
unsubstantiated assumption appears to be that Ugandan armed forces completely
destroyed both plants as of 1 January 1998, before the date of Uganda’s
intervention.
7.114 Any calculation of lost profits should have been based on revenues made
before the events of 1998—information that should be readily available to SNEL—
not on revenues dating to after the withdrawal of Ugandan armed forces.
Furthermore, and despite the fact that the DRC itself acknowledged during the
merits phase of this case that such withdrawal was completed by 2 June 2003,995
the SNEL claims to be entitled to eight years of lost profits because the armed
conflict supposedly lasted for the period 1998 to 2005. The SNEL report is so
fundamentally flawed and misguided that it cannot serve as proof of any lost
profits.
7.115 Whether the claim on behalf of SNEL is taken as a whole, or viewed in its
constituent elements, the conclusion is the same: the DRC has failed to show with
any level of certainty that the damages claimed actually occurred, that they were
directly caused by Uganda or that the valuation of those damages is grounded in
evidence and based on sound methodologies.
995 Armed Activities (2005), para. 167.
322
7.116 The DRC’s compensation claims for the other two State entities fare no better.
On behalf of the Air Traffic Control (“ATC”), the DRC claims US$ 19,353,000.996
This claim rests solely on the following undated, unsigned, summary table
apparently prepared for purposes of this litigation:
996 Régie des voies aériennes (RVA), Réclamation, DRCM Annex 4.27.
323
7.117 This table cannot take the place of actual evidence showing that the ATC
suffered the claimed damages, that those damages were directly caused by the
specific wrongful acts attributable to Uganda and that the alleged values
correspond to the actual values of items claimed. Without such evidence, the claim
fails for lack of proof.
7.118 Nor is there any evidence proving the claim for US$ 4,830 on behalf of the
Central Bank of the Congo.997 To support this claim, the DRC relies on Annex
4.7.c. That annex consists not only of an unsigned summary table, but also one that
inexplicably relates to alleged damages caused to displaced persons, not the Central
Bank.
7.119 It appears that the DRC meant to refer instead to the summary table entitled
“Valuation of property damages” contained in Annex 4.7.d. As best Uganda has
been able to determine, that is the only place where the Central Bank’s damages
purport to be summarised. They are listed in US$ as: “cash money -- 2630,” one
“stereo -- 650,” one “radio – 1300,” one “television – 250”.998 The sum of these figures
is consistent with the amount the DRC seeks on behalf of the Central Bank (US$
4,830).999
7.120 Assuming that is correct, this aspect of the DRC’s claim is still unfounded.
As with all of the DRC’s other unsigned summary tables, there is no reliable
evidence to support the DRC’s assertions concerning the existence of the damages
997 DRCM, para. 4.72.
998 Listes numérisées pour Kisangani, Évaluation pertes des biens, p. 36, DRCM Annex 4.7.d
(Translation by Counsel, original in French: “argent en espèce—2630”, “chaine musicale—650”,
“radio 1300”, “television 250”.).
999 Ibid.
324
claimed. Still less is there evidence directly connecting the alleged damages to the
wrongful actions of Uganda. This claim too therefore also fails for lack of proof.1000
6. Private Companies
7.121 The DRC also seeks compensation for damage to private companies in
Kisangani. It does not, however, articulate either the basis of the claim or the
specific amount sought.1001 The DRC merely asserts that it has “been able to count
23 such cases of damage for the 1999 war, 13 for the 2000 war, and approximately
10 for June 2000”.1002 It then adds that because damages to private companies are
“variable in nature and scale, they cannot be generalized”.1003 The DRC promises
to define the quantum claimed in Chapter 7,1004 but that promise is never fulfilled.
7.122 As stated, the DRC Memorial contends that Uganda caused damage to
approximately 46 private companies.1005 But different numbers are presented in the
annexes prepared by the DRC’s “investigators”. Only nine companies are
1000 The claim also appears to be spurious. Elsewhere, the DRC uniformly “valued” radios at US$ 50
each regardless of the place and time of alleged damages. See, e.g., “Evaluation Pertes des Biens”, in file
Victimes_PerteBien_KISANGANI, p. 1, DRCM Annex 1.3. By contrast, the claim for a radio in the case
of the Central Bank is in the amount of US$ 1300, which is also nearly six times more expensive than
the TV valued at US$ 250!
1001 DRCM, para. 4.70.
1002 Ibid. (Translation by Counsel, original in French: “On a pu en compter 23 pour la guerre de
1999, 13 pour celle de mai 2000 et une dizaine pour juin 2000”.).
1003 Ibid. (Translation by Counsel, original in French: “de nature et d’ampleur variable, ils ne
peuvent être globalisés ici”.).
1004 Ibid., para. 4.76.
1005 Ibid., para. 4.70. The DRC allegedly found 23 for the 1999 war, 13 for the May 2000 war and
10 for June 2000 (Translation by Counsel, original in French: “On retrouve enfin les dommages
subis par les entreprises privées. On a pu en compter 23 pour la guerre de 1999, 13 pour celle de
mai 2000 et une dizaine pour juin 2000”.). Atteintes aux biens à Kisangani, DRCM Annex 4.3 and
Administrations publiques et cultes à Kisangani, DRCM Annex 4.4 are a nothing more than a
collection of snippets plucked from unsupported and uncorroborated reports by the Congolese
NGOs, Groupe Lotus and COJESKI, which, moreover, do not even directly implicate Uganda in
causing the alleged damages.
325
mentioned in the table labeled “Identification of private companies and valuation
of their damages”, which appears in Annex 4.5.e.1006 and not even all those are
listed in Annex 4.7.d (“Valuation of property damages”) and Annex 1.3
(“Victimes_PerteBien_Kisangani”),1007 which contain identical summary tables
purporting to represent all alleged damages in Kisangani.1008
7.123 Examining Annexes 4.5.e and 4.7.d side-by-side further reveals that the
descriptions and “valuations” of damages for the companies listed in one annex are
not the same as those contained in the other. For example, Annex 4.5.e lists
damages to Ets Hotel Kisangani as US$ 18,830, but in Annex 4.7.d the claim for
the same hotel is just US$ 8,364.1009
7.124 It is difficult, if not impossible, to makes sense out of the DRC’s claims
given these contradictions. It is also impossible to reconcile these contradictions
by reference to any actual evidence. Here, as in so many places, the DRC’s claims
are presented in the form of summary tables unanchored to any underlying
evidence. Instead, Uganda and the Court are expected to simply take the conflicting
1006 This annex contains only a summary table with some incomplete entries, which is divorced
from any evidence as to whether the claimed damages allegedly amounting to US$ 2,104,203 were
actually sustained as a direct result of the specific wrongful actions attributable to Uganda. Indeed,
as shown in para. 7.105 of Uganda’s Counter-Memorial, the largest component of damages in this
table consisting of SOTEXKI’s claim to US$ 1,642,224 relates to damages admittedly caused by
actors other than Uganda.
1007 It bears emphasis that Listes numérisées pour Kisangani, Évaluation pertes des biens, DRCM
Annex 4.7.d and “Evaluation Pertes des Biens” in file Victimes_PerteBien_KISANGANI, DRCM
Annex 1.3 consist of the same summary tables. The unexplained multiplicities of the same summary
tables for alleged damages not only in regard to Kisangani, but also Ituri, Gemena, Beni and
Butembo, only exacerbates the confusion of already confused claims.
1008 For example, Hotel Masudin with an unfounded claim of US$ 4,452 is mentioned in République
Démocratique du Congo, Commission d'Experts, Identification Des Victimes et Evaluation des
Dommages: Sociétés Commerciales et Etablissements Privés, DRCM Annex 4.5.e but not in Listes
numérisées pour Kisangani, Évaluation pertes des biens, DRCM Annex 4.7.d.
1009 For the differences in the description of alleged damages, see pages 48, 105, in “Listes
numérisées pour Kisangani”, Évaluation pertes des biens, DRCM Annex 4.7.d.
326
tables by themselves as proof that the damage occurred, that it is attributable to
Uganda and that the valuations stated are correct.
7.125 Based on Uganda’s review of the DRC’s materials, it appears that only one
company, Société Textile de Kisangani (“SOTEXKI”) submitted any materials
purporting to support a claim for damages. All those materials do, however, is
highlight the arbitrariness of the claim.
7.126 Relying on reports prepared by the DRC’s law enforcement agents,1010
SOTEXKI claims compensation in the amount of US$ 1,642,224.1011 The claim,
however, fails for at least three reasons.
7.127 First, there is nothing in these reports that provides any convincing
evidence that the alleged damages are attributable to Uganda. Following
investigations conducted shortly after the events causing the alleged damage,
Congolese police inspectors recorded in their reports that the damages in August
1999 were caused by “unknown (men in military uniform)”1012 who were
“Ugandan and Rwandan allies of the Rassemblement Congolais pour la
Démocratie (RCD),”1013 and that damages during the five years of war to the
company’s Yacht Club and hangar were caused by “AFDL” (“Alliance des forces
démocratiques pour la libération du Congo”) and “Ugandan and Rwandan
1010 Société textile de Kisangani (SOTEXKI), Réclamation, N/Réf:DG/ADM/KIN?009/2016, (2
mai 2016), p. 2, DRCM Annex 4.25. (“Parquet près le Tribunal de Grande Instance de Kisangani,
Commission Gouvernementale d’identification des victimes”.).
1011 DRCM, para. 4.69 and Société textile de Kisangani (SOTEXKI), Réclamation,
N/Réf:DG/ADM/KIN?009/2016, (2 mai 2016), Annex 4.25.
1012 Société textile de Kisangani (SOTEXKI), Réclamation, N/Réf:DG/ADM/KIN?009/2016, (2
mai 2016), p. 6, Annex 4.25 (Translation by Counsel, original in French: “Inconnus (Hommes en
Uniforme Militaire)”.).
1013 Ibid. (Translation by Counsel, original in French: “alliés rwandais et ougandais du
Rassemblement Congolais pour la Démocratie (RCD)”.).
327
allies”.1014 In other words, nowhere in their contemporaneous reports did the
Congolese law enforcement officers ascribe responsibility for any of the damage
to Uganda.1015 At best, there are vague references to “Ugandan allies” among other
actors. The required causal link between Uganda’s unlawful acts and the alleged
damages is thus missing.
7.128 Second, the alleged damages lack sufficient proof. SOTEXKI puts forward
only a series of summary tables listing property items and their values. This is not
adequate. As the Court made clear in Diallo, the list of property is, on its own,
insufficient to prove the value of the listed property. Sufficient proof, the Court
held, would require the submission of invoices, receipts, insurance documents or
other similar documents showing the value of the listed property.1016 SOTEXKI
offers no such evidence here.
7.129 Third, SOTEXKI’s allegation that its damages total US$ 1,642,224 is
unsupported by the very materials on which it purports to rely. The sum of the
valuations stated in the summary tables is not US$ 1,642,224 but actually more
1014 Ibid. (“Translation by Counsel, original in French: “alliés rwandais et ougandais”.).
1015 It is surprising how in light of these official findings SOTEXKI’s representatives alleged in the
unsigned DRC’s claims forms that damages were caused by “Ugandan and Rwandan armies.” This
attempt must be rejected and those forms must be treated for what they are: post-fact statements
made by persons interested in the outcome of litigation. Other documents, the DRC attached,
observe that SOTEXKI was the object of lootings “orchestrated by the Rwandan, Burundian and
Congolese military” (Translation by Counsel, original in French : “orchestrés par les militaires
Rwandais, Burundais et Congolais”.) Groupe Lotus, Les conséquences de la contraction des
alliances et factions rebelles au nord-est de la RDC – La guerre de Kisangani, Sept. 1999, Annex
4.18.
1016 Diallo (2012), paras. 32, 34-36.
328
than 20% less: US$ 1,292,224.91.1017 Nothing in the materials the DRC offers
explains this US$ 350,000 difference.
7.130 The DRC’s claim on behalf of SOTEXKI thus not only lacks foundation, it
also is devoid of credibility.
*
7.131 For all these reasons, the DRC’s claim for US$ 17,323,998 in alleged
property damages in Kisangani lacks foundation and there is no basis to award the
DRC the seeks.
C. AREAS OTHER THAN ITURI AND KISANGAN (BENI, BUTEMBO AND GEMENA)
7.132 The DRC also claims US$ 8,304,077 in compensation for alleged property
losses in Beni, Butembo and Gemena.1018 The amount sought is apportioned as
follows:
 US$ 5,526,527 for Beni;
 US$ 2,680,000 for Butembo; and
 US$ 97,550 for Gemena.1019
1017 Société textile de Kisangani (SOTEXKI), Réclamation, N/Réf:DG/ADM/KIN?009/2016, (2
mai 2016), pp. 35, 44, 49-50, DRCM Annex 4.25. (Damages caused between 15 and 17 August
1999 (US$ 1,056,776.14), p. 35; damages caused during the six-day war (US$ 46,533.77), p. 44;
damages caused during the five-year war to the company’s hangar (US$ 123,188), p. 49; and
damages caused during the five-year war to the Yacht Club (US$ 65,727), p. 50. The sum of these
damages is US$ 1,292,224.91.).
1018 DRCM, para. 2.85.
1019 Ibid., paras. 2.87 and 7.46. In addition, para. 2.87 of DRC Memorial also refers to 43 incidents
in Maboya and Loya, but the DRC does not present claims for damages in those areas.
329
7.133 According to the DRC, these amounts “emerge” from “detailed lists”
created by the DRC’s investigators and contained in Annex 2.4.1020 Yet that annex
contains neither the stated numbers nor “detailed lists” supporting them.1021 Their
provenance and foundation are unknown.
7.134 In fact, the numbers stated in the DRC Memorial are contradicted by those
presented in Annex 2.4. Moreover, the numbers stated in Annex 2.4 are themselves
contradicted by the numbers stated in other annexes created by the DRC’s
investigators.1022 This is shown in the table on the next page:
1020 Ibid., paras. 7.45 and 2.85.
1021 “Evaluation des pertes des biens à Beni, Butembo et Gemena de 1998 à 2003”, DRCM Annex
2.4 only consists of a series of cryptic summary tables entitled “Tableau de Synthèse Effectif Perte
Biens” and “Tableau de Synthèse Evaluation Perte Biens,” respectively. Those tables, as their titles
suggest, purport to “synthesise” the instances and valuations of alleged property damages listed in
other summary tables, which are also prepared by the Congolese investigators and included with
Evaluation des pertes des biens à Beni, Butembo et Gemena de 1998 à 2004: Détail évaluation
perte des biens à Beni de 1998 à 2003, DRCM Annex 2.4bis, Evaluation des pertes des biens à
Beni, Butembo et Gemena de 1998 à 2005: Détail évaluation perte des biens à Butembo de 1998 à
2003, DRCM Annex 2.4ter, and Evaluation des pertes des biens à Beni, Butembo et Gemena de
1998 à 2003: Détail évaluation perte des biens à Gemena de 1998 à 2003, DRCM Annex 2.4quater,
DRCM Annex 2.4quater (“Evaluation Pertes des Biens”).
1022 These include Evaluation des pertes des biens à Beni, Butembo et Gemena de 1998 à 2004:
Détail évaluation perte des biens à Beni de 1998 à 2003, DRCM Annex 2.4bis with a summary
table entitled “Liste des Biens Perdus de 1998 à 2003” in Beni; Evaluation des pertes des biens à
Beni, Butembo et Gemena de 1998 à 2005: Détail évaluation perte des biens à Butembo de 1998 à
2003, DRCM Annex 2.4ter with a summary table entitled “Liste des Biens Perdus de 1998 à
2003” in Butembo; and Evaluation des pertes des biens à Beni, Butembo et Gemena de 1998 à
2003: Détail évaluation perte des biens à Gemena de 1998 à 2003, DRCM Annex 2.4quater with
a summary table entitled “Liste des Biens Perdus de 1998 à 2003” in Gemena. The same summary
tables with the same information are then restated in Annex 1.3 in the folder “Dommage Perte
Biens” in file Victimes_PerteBien_BENI, DRCM Annex 1.3; “Dommage Perte Biens” in file
Victimes_PerteBien_BUTEMBO, DRCM Annex 1.3; “Dommage Perte Biens” in file
Victimes_PerteBien_GEMENA, DRCM Annex 1.3.
330
Beni Butembo Gemena
US$ 5,526,527 (DRCM, para.
7.46)
US$ 2,680,000 (DRCM, para.
7.46)
US$ 97,550 (DRCM, para.
7.46)
US$ 5,013,987 (Annex 2.4) US$ 6,449,424 (Annex 2.4) US$ “6.4827985E7” (Annex
2.4)
US$ 5,551,427 (Annex 2.4bis
“Evaluation Pertes des
Biens”)
US$ 65,130,030 (Annex
2.4ter “Evaluation Pertes des
Biens)
US$ “6.477755E7” (Annex
2.4quater “Evaluation Pertes
des Biens”)
7.135 Whatever the actual number is, the materials nominally prepared by the
DRC’s investigators do not constitute convincing evidence. This is because they
suffer from the same infirmities as the materials relating to Ituri and Kisangani:
they are nothing more than unsigned, undated and unsupported summary tables
listing various property items and assigning to them arbitrary values.1023 Here as
elsewhere the DRC offers absolutely no supporting evidence, let alone convincing
evidence, that makes it possible to establish with any level of certainty that the
property listed in summary tables was actually damaged, that such damage directly
resulted from the specific wrongful acts attributable to Uganda and that the
1023 These include Evaluation des pertes des biens à Beni, Butembo et Gemena de 1998 à 2004:
Détail évaluation perte des biens à Beni de 1998 à 2003, DRCM Annex 2.4bis with a summary
table listing property losses in Beni; Evaluation des pertes des biens à Beni, Butembo et Gemena
de 1998 à 2005: Détail évaluation perte des biens à Butembo de 1998 à 2003, DRCM Annex 2.4ter
with a summary table listing property losses in Butembo; and Evaluation des pertes des biens à
Beni, Butembo et Gemena de 1998 à 2003: Détail évaluation perte des biens à Gemena de 1998 à
2003, DRCM Annex 2.4quater with a summary table listing property losses in Gemena. The same
summary tables with the same information are then restated in Annex 1.3 in the folder Dommage
Perte Biens.
331
valuations assigned are accurate. For this reason alone, the DRC cannot recover the
compensation it seeks.
7.136 The compensation the DRC claims cannot be awarded for yet another
reason: the DRC has not adduced even a single document that proves the ownership
and actual value of any of the allegedly damaged property. Nor has the DRC
explained the basis for the values assigned to property items allegedly damaged in
Beni, Butembo and Gemena. Indeed, they are strikingly similar to the values
assigned to property allegedly damaged in Ituri and Kisangani.1024 The uniformity
in the alleged property values, without regard to location, extent of damages or the
identity of alleged victims, suggest that the DRC’s “valuation” numbers are not
based on particularised information and do not reflect actual damages.
1024 The DRC again presents uniform prices regardless of location, extent of damages and the
identity of victims. For example, in Beni, Butembo and Gemena, a pig is uniformly valued at US$
80; a cow at US$ 300; a bicycle at US$ 100. See “Evaluation Pertes des Biens” in file
Victimes_PerteBien_BENI, DRCM Annex 1.3; “Evaluation Pertes des Biens” in file
Victimes_PerteBien_BUTEMBO, DRCM Annex 1.3; “Evaluation Pertes des Biens” in file
Victimes_PerteBien_GEMENA, DRCM Annex 1.3, respectively. Even unspecified items
generically described as clothes (suitcase), and kitchen utensils are uniformly valued at US$ 200.
Ibid. In addition, in Butembo, the tables show the existence of 18 diamonds valued at US$ 1,000
apiece; and 12 diamonds in Beni valued at US$ 25,000 apiece. See “Evaluation Pertes des Biens”
in file Victimes_PerteBien_BENI, DRCM Annex 1.3; “Evaluation Pertes des Biens” in file
Victimes_PerteBien_BUTEMBO, DRCM Annex 1.3. There is however no evidence of possession
of diamonds by the alleged victims nor any documents confirming the assigned values. It is also
worth noting that the DRC present uniform values for diamonds which are notable for their value
variation subject to different factors. Finally, it also bears emphasis noting that categories of
property damages as stated in the tables “Evaluation Pertes des Biens” often do no correspond to
the same categories “synthesised” in Annex 2.4. See “Evaluation des pertes des biens à Beni,
Butembo et Gemena de 1998 à 2003”, DRCM Annex 2.4, Evaluation des pertes des biens à Beni,
Butembo et Gemena de 1998 à 2004: Détail évaluation perte des biens à Beni de 1998 à 2003,
DRCM Annex 2.4bis and Evaluation des pertes des biens à Beni, Butembo et Gemena de 1998 à
2005: Détail évaluation perte des biens à Butembo de 1998 à 2003, DRCM Annex 2.4ter.
332
7.137 The DRC’s claim is so arbitrary and speculative, that the DRC has even
failed to explain how it arrived at the figures for the total amount of compensation
it seeks for Beni, Butembo and Gemena.
7.138 As was true with respect to Ituri and Kisangani, the DRC has failed to prove
the exact property damage in Beni, Butembo and Gemena suffered as a result of
specific actions of Uganda constituting internationally wrongful acts. As a result,
there is no legal basis to award it compensation for this head of damages.
D. THE CONGOLESE ARMY
7.139 The DRC also seeks US$ 69,417,192 in compensation for “material
damages” the Congolese army allegedly suffered “in combat with the UPDF and
rebel movements supported by it”.1025
7.140 This claim founders in the first instance on the absence of any connection
to the Court’s findings in the 2005 Judgment. As a matter of law, the DRC cannot
seek damages beyond the scope of what was decided at the merits phase by seeking
damages for claims that were never presented at that phase.
7.141 The Court’s 2005 Judgment is confined to the DRC’s claims advanced in
its Application, as elaborated in the written and oral proceedings, and its final
submissions. At no time during the merits phase did the DRC raise any issue
concerning material damage allegedly suffered by the Congolese army. Nor did the
Court make any such finding in the dispositif or text of the 2005 Judgment.
1025 DRCM, para.7.48 (Translation by Counsel, original in French “dommages matériels subis par
les forces armées congolaises… dans le cadre des combats qui l’ont opposée à l’UPDF et aux
mouvements rebelles soutenus par cette dernière”.).
333
7.142 Just as claims falling outside the jurisdiction of the Court cannot be pursued
at the merits phase,1026 claims not presented to the Court at the merits phase cannot
serve as a basis for an award of damages in this phase.1027 Accordingly, the DRC
cannot at this phase advance claims beyond the scope of what was proven to the
Court at the merits phase.
7.143 Moreover, even if the DRC could overcome this threshold problem (quod
non), this aspect of its claim would still fail for lack of proof. The DRC’s claim
rests solely on two summary tables prepared by a high-ranking officer of the
Congolese Army on 31 August 2016—that is, just two weeks before the DRC
submitted its Memorial to the Court. The Court has, however, routinely disregarded
materials prepared by interested persons for purposes of litigation years after
alleged events in question.1028
7.144 And even if the two summary tables included in Annex 7.4 of the DRC
Memorial were accepted as genuine and reliable (which they should not be), they
do nothing other than underscore the speculative and arbitrary nature of the DRC’s
claim. The two tables are reproduced below. The first lists the alleged damages and
purports to quantify them based on the values alleged in the second table. Nothing
in either table has any support in genuine evidence, however.
1026 Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgement, I.C.J.
Reports 1985, p. 23, para. 19 (“The Court must not exceed the jurisdiction conferred upon it by the
Parties…”.).
1027 Case Concerning the Barcelona Traction, Light and Power Company, Limited (New
Application: 1962) (Belgium v. Spain) Second Phase, Judgement, I.C.J. Reports 1970, p. 37, para.
49 (the Court concluded that a certain matter raised by the applicant State went beyond the claim
as originally formulated, such that the Court “will not pursue its examination of this point any
further”.). See also Chapter 3 above for further discussion.
1028 Armed Activities (2005), paras. 64, 125.
334
1029
1029 “Evaluation des dégâts militaires dans les rangs des FARDO par l’armée ougandaise et alliés”
(31 Aug. 2016), p. 1, DRCM Annex 7.4.
335
1030
7.145 In support of the alleged damages, the DRC relies on just a single source:
“The Choice of Liberty”, a book authored by the MLC leader J. Bemba.1031 It is
perhaps ironic that the DRC could not come up with any better source than extracts
1030 Ibid., p. 2.
1031 See DRCM, paras. 2.48, 2.51, 2.53, and 2.55 citing to Bemba’s “Choice of Liberty” as the sole
support for damages the Congolese Army allegedly sustained in Mindembo, Pimu, Gbadolite, and
Ubangi, respectively.
336
of a book in which Mr Bemba boasts about the results his group achieved under his
command in battles with the Congolese Army.1032 It is even more ironic that the
DRC cannot corroborate any of those damages by contemporaneous documentary
materials from the FAC. In fact, the DRC resorts to outright speculation by making
up numbers to “concretise” Bemba’s general allegations.
7.146 For example, the DRC quotes Bemba’s book for the proposition that the
Congolese Army “abandoned … hundreds of ammunition boxes” after fighting
with the MLC near Ubangi 1033 Based on that one vague allegation, the DRC claims
damages to 800 tons of ammunition.1034 There is no proof that this is the amount of
ammunition that the Congolese Army actually lost.1035
7.147 In any event, it does not matter what damages to the FAC the DRC seeks
to extract from Mr Bemba’s book. Mr Bemba said nothing about any specific
damages having been caused by UPDF soldiers. To the contrary, he insisted that it
was he who was in control of the military ventures, not Uganda.1036 Moreover, as
1032 Ibid., citing to Bemba’s “Choice of Liberty” as the sole support for damages the Congolese
Army allegedly sustained in Mindembo, Pimu, Gbadolite, and Ubangi, respectively.
1033 DRCM, para. 2.55.
1034 “Evaluation des dégâts militaires dans les rangs des FARDO par l’armée ougandaise et alliés”
(31 Aug. 2016), DRCM Annex 7.4. See also the excerpt from Bemba’s book, quoted in para. 2.55
of the DRC Memorial , mentioning that the Congolese Army abandoned heavy artillery equipment
and light weapons, without referring to any specific number. However, the DRC claims, without
any evidence, damages to 600 units of weapons. See also para. 2.51 of the DRC Memorial quoting
to Bemba’s book that the Congolese Army “abandoned… several rocket launchers.” (Translation
by Counsel, original in French: “abandonment… du materiel d’artillerie lourde”.). On that shaky
foundation, the DRC claims damages to 10 rocket launchers. DRCM, para. 2.55, 2.51.
1035 See, e.g., DRCM, para. 2.55 quoting to Jean-Pierre Bemba, Le choix de la Liberté (2002),
DRCM Annex 2.13.
1036 See the DRCM, paras. 2.48, 2.51, 2.53, and 2.55 citing to Jean-Pierre Bemba, Le choix de la
Liberté (2002), DRCM Annex 2.13 as the sole support for damages the Congolese Army allegedly
sustained in Mindembo, Pimu, Gbadolite, and Ubangi, respectively. See also the Court’s finding
that: “[T]he pages cited by the DRC in Mr Bemba’s book do not in fact support the claim of “the
creation” of the MLC by Uganda, and cover the later period of March-July 1999. The Court has
337
previously noted, the Court made clear that the MLC’s conduct is not attributable
to Uganda.1037
7.148 The DRC equally fails to adduce any evidence supporting its valuation of
the alleged damages. The values assigned to weapons and military equipment listed
in the summary table have no documentary support.1038
7.149 Unlike in the Corfu Channel case, where the material damages to the U.K.’s
military vessels were proven by convincing contemporaneous evidence, including
documentary materials and photographs, and where the valuation of damages was
based on a credible and sound methodology,1039 the DRC’s claim is founded on
speculation atop speculation.
7.150 Because the DRC has failed to prove the exact damage that the Congolese
Army suffered as a result of specific actions of Uganda constituting internationally
wrongful acts, there is no basis to award compensation on this account.
noted the description in Mr Bemba’s book of the training of his men by Ugandan military instructors
and finds that this accords with statements he made at that time, as recorded in the ICG report of 20
August 1999. The Court has equally noted Mr Bemba’s insistence, in November 1999, that, while
he was receiving support, it was he who was in control of the military venture and not Uganda. The
Court is equally of the view that the Harare Disengagement Plan merely sought to identify locations
of the various parties, without passing on their relationships to each other.” Armed Activities (2005),
para. 158.
1037 Armed Activities (2005), para. 160.
1038 See Table 2 in “Evaluation des dégâts militaires dans les rangs des FARDO par l’armée
ougandaise et alliés” (31 Aug. 2016), DRCM Annex 7.4. Moreover, this table does not provide
values to four types of weapons (“Mi 12.7 mm,” “Mi 14.5 mm,” “Mortier 82 mm,” and “Canon 75
mm”). It thus unclear on what basis the DRC assessed damages for those elements of its claim. For
example, the DRC values two 82mm mortars at US$ 5,432 apiece, without even explaining the
source of the alleged valuation amount. The same is true in regard to the DRC’s valuation of 75 mm
cannons valued at US$ 13,000 apiece. See Table 1 of “Evaluation des dégâts militaires dans les
rangs des FARDO par l’armée ougandaise et alliés” (31 Aug. 2016), Annex 7.4.
1039 Corfu Channel (Compensation, 1949).
338
*
7.151 For all the foregoing reasons, the DRC is not entitled to the compensation
it seeks for alleged damages caused to property.
339
CHAPTER 8
THE DRC’S CLAIMS RELATING TO NATURAL RESOURCES ARE
UNSUPPORTED BY ITS EVIDENCE AND METHODOLOGICALLY
FLAWED
8.1 The DRC seeks US$ 3,478,494,205 in compensation for damages allegedly
caused to Congolese natural resources by Uganda.1040 This amount includes:
 US$ 685,513,737 for the alleged exploitation of gold, diamonds and
coltan;
 US$ 2,692,980,468 for alleged damages to wildlife; and
 US$ 100,000,000 for alleged deforestation.1041
8.2 As was true of its other claims discussed in the previous chapters, the DRC
fails to prove any of these claims: it presents no convincing evidence showing with
a high degree of certainty the exact injury suffered as a result of specific wrongful
acts of Uganda, or the valuation of the alleged injury.
8.3 Section I of this Chapter discusses the standard techniques for proving and
valuing damages of this kind in international law (which techniques the DRC
Memorial declines to follow). Section II then demonstrates that the DRC’s claims
relating to natural resources are unsupported by evidence and methodologically
flawed.
1040 DRCM, para. 5.190.
1041 Ibid., para. 5.190. The DRC has also reserved its right to make additional claims in regard to
the alleged mining of gold and diamonds as well as deforestation. This reservation of rights is
untenable for the reasons explained in the sections addressing the DRC’s unsustainable claims of
damages to the alleged mining of natural resources and deforestation.
340
I. The DRC’s Claims Are Not Based on Standard Methods for Proving the
Existence and Valuation of the Damages It Claims
8.4 This chapter principally focuses on the systematic legal and factual
problems with the DRC’s claims concerning the alleged exploitation of natural
resources. At the outset, however, it is important to note that the DRC’s claims are
not based on the standard methods or the kinds of evidence that would normally be
expected for proving the existence and valuation of harms like those the DRC
alleges.
8.5 A survey of relevant practice relating to pillage, plunder or spoliation1042
indicates that the method for proving compensation for the exploitation of natural
resources entails several elements, including: (1) identification of the specific place
or places where the exploitation occurred, such as specific mines, oil wells,
quarries, forests or rivers where the extraction of the resources occurred; (2)
identification of the specific time period during which the exploitation occurred;
(3) determination of at least the approximate amount of resources extracted; and
(4) valuation of those resources.
1042 Methodology and evidentiary standards for proving pillage, plunder, and spoliation may be
found in a range of jurisprudence before international criminal tribunals and mixed claims
commissions from Nuremberg to the present, including situations where natural resources have
been seized. See, e.g., Polish Forestry, Case No. 7150, The United Nations War Crimes
Commission, History of the United Nations War Crimes Commission and the Development of the
Laws of War (1948), p. 485 (finding liability of German troops for over-exploitation of forests in
occupied Poland). See generally Michael A. Lundberg, “The Plunder of Natural Resources during
War: A War Crime?”, Georgetown Journal of International Law, Vol. 39 (2007-2008); Daniëlla
Dam-de Jong, International Law and Governance of Natural Resources in Conflict and Post-
Conflict Situations (2015); F. Ortino & N. M. Tabari, “International Dispute Settlement: The
Settlement of Disputes Concerning Natural Resources — Applicable Law and Standards of
Review,” in RESEARCH HANDBOOK ON INTERNATIONAL LAW AND NATURAL RESOURCES (E.
Morgera & K. Kulovesi, eds. 2016), p. 496.
341
8.6 Such elements should be proven through a range of documentary evidence
typically available with respect to the relevant sector of natural resources. If a State
seeks to prove that gold was unlawfully exploited from a specific mine, for
example, it should produce reports, business records and other documents
generated in the regular course of operations of that mine during the years leading
up to its seizure. The seizure of the mine would then be proven through either
contemporaneous accounts or sworn affidavits by persons with direct knowledge.
Valuation of the harm from lost resources might be proven based on prior years of
extraction of the resource from that location, discounted by the costs of extraction
and taking into account any changed circumstances (such as damage to the mine
from the armed conflict). If the gold mine is owned and operated by a private
company, not the State, the State must establish that the company has been
continuously of its nationality from the date of the injury until at least the
presentation of the State’s claim. Once such specifics are proven, if the exploitation
occurred within occupied territory, the occupying Power is entitled to establish that
the alleged exploitation was consistent with the laws of war relating to usufruct.
8.7 Alternative techniques are possible for addressing mass claims for property
damage before complex claims commissions, but as explained in Chapter 3, those
techniques are not appropriate in the context of inter-State litigation before the
Court. Even before those commissions, the evidentiary standards for claims
relating to exploitation of natural resources typically are quite high, as may be seen
with respect to the “Category E1” claims before the UNCC concerning Kuwait’s
oil sector.1043
1043 See U.N. Security Council, Report and Recommendations Made by the Panel of Commissioners
Concerning the Second Instalment of “E1” Claims, U.N. Doc. S/AC.26/1999/10 (24 June 1999),
paras. 30-32, Annex 9. See generally C. Payne & P. Sand eds., Gulf War Reparations and the UN
Compensation Commission: Environmental Liability (2011).
342
8.8 As Uganda has indicated in previous chapters, it is mindful of the
difficulties that may be associated with gathering evidence of exploitation of
natural resources during an armed conflict. Yet the fact remains that the DRC has
provided no evidence of the type normally expected to prove the existence and
valuation of specific harm in the form of exploitation of natural resources.
8.9 As will be shown below, rather than follow the standard approach for
proving the alleged injury and its valuation, the DRC cobbles its claims together
primarily from unsupported allegations and misconstrued data selectively extracted
from the widely criticised UN Panel reports.1044 Relying exclusively on the UN
Panel’s first report of 12 April 2001 (“UN Panel’s first report”), for example, the
DRC erroneously contends that the difference between the production and export
of mineral resources in Uganda during 1998-2003 somehow shows Uganda’s
illegal exploitation of the Congolese mineral resources.1045 The DRC puts this
flawed proposition forward knowing full well that it was abandoned in the UN
Panel’s final report of 23 October 2003, which does not contain even a hint that
Uganda’s export of minerals during the relevant period was connected to illegal
exploitation of Congolese natural resources. (This claim was also refuted in the
Porter Commission Final Report).1046 Likewise, the DRC grounds its compensation
claim for deforestation entirely on the misconceived DARA-Forest “Case Study”
set out in the UN Panel’s first report, which was also abandoned in the UN Panel’s
final report.1047 Many of the DRC’s other claims related to natural resources are
1044 U.N. Panel of Experts, first report of 12 Apr. 2001, Annex 11; U.N. Panel of Experts, Addendum
to the first report of 12 April 2001, Annex 13; U.N. Panel of Experts, report of 16 Oct. 2002, Annex
15.
1045 See paras. 8.47-8.94.
1046 See paras. 8.68-8.71.
1047 See paras. 8.153-8.164.
343
similarly based on allegations plucked from UN Panel reports and misleadingly
presented as established fact (which they are not).1048
8.10 Because nearly the whole of the DRC’s case on natural resources hinges on
the UN Panel reports, it is useful here to recall generally their limitations. (Specific
problems with the reports will be addressed in connection with particular aspects
of the DRC’s claims addressed below).
8.11 The UN Panels were established at the behest of the UN Security Council
to suggest solutions to the illegal exploitation of natural resources in the DRC. The
UN Panel reports were not designed to establish responsibility for violations of
international law, the purpose for which the DRC is now trying to use them.
Instead, the Panels were essentially political organs, vested only with responsibility
to suggest political solutions for the problems on the ground. The Security Council
understood that any report would not reach the high standards required for judicial
purposes, noting that the UN Panels were not judicial organs vested with the power
or capability to collect and evaluate evidence.1049
8.12 Even once their limited purpose is understood, the UN Panel reports, and
especially the first report on which the DRC primarily relies, are deeply flawed.
1048 DRCM, paras. 5.07, 5.08, 5.28, 5.30, 5.33, 5.37, 5.40, 5.41, 5.86-5.88, 5.90, 5.95, 5.104, 5.114,
5.115, 5.127, 5.174-5.176, 5.182.
1049 The President of the Security Council, commenting on the work of the First Panel, stated: “I
want to repeat something that other speakers have noted… Our goal is not to punish or apportion
blame; our goal, is and must remain, the successful implementation of the Lusaka Ceasefire
Agreement and the relevant Security Council resolutions.” The Permanent Representative of the
United Kingdom, in a similar vein, observed: “We must engage with each other and try to achieve
greater clarity, but we also need to focus on the primary goal here, which is not to punish or narrowly
to assign blame, but to tackle the problem in the interests of promoting the wider peace process and
alleviating the suffering of the Congolese people.” For the full discussion with all supporting
documents, see Rejoinder submitted by the Republic of Uganda (6 Dec. 2002), in Armed Activities
(2005), paras. 332-338.
344
The Panel’s first report was criticised as biased and lacking in credibility, so much
so that the failures of the first UN Panel required the appointment of a second Panel.
The new Panel admitted that the report of 12 April 2001 was defective and that it
could not correct all the problems in the report. Some of the defects in the first
report thus continued to infect subsequent reports. This led to the preparation of a
third report that still failed to make meaningful improvements on its predecessors.
During an open debate before the Security Council, members made clear that they
did not consider any of the reports sufficient to warrant action by the Security
Council.1050 If the UN Panel reports could not justify political action, a fortiori they
cannot meet the higher standards of evidence to sustain legal action against a State.
8.13 Notably, in the past, the DRC itself admitted that the UN Panel reports
(especially the UN Panel’s first report on which it so heavily relies) lacked
credibility. In debates before the Security Council, the DRC attacked portions of
the reports alleging improper conduct on the part of the DRC government. It
emphasised three major flaws in the reports: (1) the reports make accusations
without an understanding of the factual context; (2) the reports make accusations
that are not based on evidence; and (3) the reports fail to understand the difference
between what is legal and what is illegal.1051
8.14 The DRC was far from being the only State to recognise the inadequacy of
the UN Panel reports. A host of other States also criticised them, pointing out,
among other flaws, the failure: to distinguish between fact and hearsay; to support
allegations with evidence; to seek corroborating evidence; to interview relevant
witnesses; to inspect relevant documents; to identify sources; to understand the
1050 For the full discussion with all supporting documents, see Rejoinder submitted by the Republic
of Uganda (6 Dec. 2002), in Armed Activities (2005), paras. 339-375.
1051 Ibid., paras. 340-344.
345
context of events; to distinguish between legal and illegal activity; to provide an
opportunity to those accused to explain or otherwise respond to allegations; and to
satisfy basic standards of impartiality.1052
8.15 Given these widely recognised issues, it is not surprising that, in its 2005
Judgment, the Court did not rely on the UN Panel reports in reaching its findings
concerning the illegal exploitation of natural resources. Instead, the Court drew its
conclusions primarily from Uganda’s Porter Commission Report.1053 As the Court
explained, “evidence obtained by examination of persons directly involved, and
who were subsequently cross-examined by judges skilled in examination and
experienced in assessing large amounts of factual information, some of it of a
technical nature, merits special attention.”1054
II. The DRC Has Failed to Prove the Extent of the Harms to Natural
Resources It Claims, and Its Valuation of Those Harms Is
Methodologically Flawed
8.16 Before turning to the specifics of the DRC’s reparation claims relating to
natural resources, it is useful to briefly recall the relevant findings in the Court’s
2005 Judgment.
8.17 Relying primarily on the Porter Commission Report, the Court reached two
findings against Uganda.1055 First, the Court found “that officers and soldiers of
the UPDF, including the most high-ranking officers, were involved in the looting,
plundering and exploitation of the DRC’s natural resources and that the military
1052 Ibid., paras. 340-375.
1053 Porter Commission, Final Report, Annex 52.
1054 Armed Activities (2005), para. 61.
1055 Ibid., paras. 237-250.
346
authorities did not take any measures to put an end to these acts”.1056 This finding
was primarily based on references to parts of the Porter Commission Report
addressing misconduct of some UPDF soldiers and officers who were taking
advantage of their positions in the DRC with an aim of profiting for themselves.1057
Second, the Court found that “Uganda violated its duty of vigilance in Ituri by not
taking adequate measures to ensure that its military forces did not engage in the
looting, plundering and exploitation of the DRC’s natural resources”.1058
8.18 On that basis, the Court held in its dispositif that Uganda violated its
obligations under international law “by acts of looting, plundering and exploitation
of Congolese natural resources committed by members of the Ugandan armed
forces in the territory of the Democratic Republic of the Congo and by its failure
to comply with its obligations as an occupying Power in Ituri district to prevent
acts of looting, plundering and exploitation of Congolese natural resources”.1059
The Court’s decision was clearly limited to the period of time that Ugandan forces
were present in the DRC, and outside Ituri, and limited to acts committed directly
by Ugandan forces.
8.19 It is equally important to recall what the Court did not find in its 2005
Judgment. First, contrary to the DRC’s contentions, the Court did not find that
there was “a governmental policy of Uganda directed at the exploitation of natural
resources of the DRC or that Uganda’s military intervention was carried out in
1056 Ibid., para. 242.
1057 See ibid., paras. 238-242 referring to the following sections of the Porter Commission, Final
Report: 13.1, 13.2, 13.4, 14.4, 14.5, 15.7, 18.5.1, 20.3, 21.3, 21.3.4, Annex 52.
1058 Armed Activities (2005), para. 246.
1059 Ibid., para. 345(4).
347
order to obtain access to Congolese resources.”1060 Second, the Court did not find
that Uganda was responsible for looting, plundering and exploitation of Congolese
natural resources committed by rebel groups outside of Ituri.1061
8.20 The Court also did not make any findings concerning specific types of
natural resources or specific locations. Rather, it only determined, as a general
matter, that looting, plundering and exploitation of natural resources had occurred
to an unspecified degree. Indeed, the Court expressly stated that it was “not
necessary for the Court to make findings of fact with regard to each individual
incident alleged.”1062
8.21 It, therefore, now falls to the DRC to prove the exact injury suffered as a
result of the specific actions of Uganda constituting internationally wrongful acts
for which it is responsible.1063 As demonstrated below, the DRC Memorial does
not meet this burden with respect to any aspect of its claims. The DRC has
presented a series of unsustainable propositions, built upon unconvincing evidence
or speculation, in order to advance highly inflated claims. There is therefore no
credible basis for awarding the compensation the DRC seeks.
1060 Armed Activities (2005), para. 242.
1061 Ibid., para. 247 (“As for the claim that Uganda also failed to prevent the looting, plundering and
illegal exploitation of the DRC’s natural resources by rebel groups, the Court has already found that
the latter were not under the control of Uganda (see paragraph 160 above). Thus, with regard to the
illegal activities of such groups outside of Ituri, it cannot conclude that Uganda was in breach of its
duty of vigilance”.).
1062 Ibid., para. 237.
1063 See Chapter 3 and Chapter 4 of Uganda’s Counter-Memorial.
348
A. MINERAL RESOURCES
8.22 The DRC claims US$ 685,513,737 for the alleged exploitation of mineral
resources. This amount includes:
 US$ 675,541,972 for the exploitation of gold;
 US$ 7,055,885 for the exploitation of diamonds; and
 US$ 2,915,880 for the exploitation of coltan;1064
The DRC, however, offers no evidence proving the existence, causation or
valuation of the claimed harms.
1. The DRC Has Failed to Prove the Existence of the Alleged Harms
Relating to Mineral Resources
8.23 The DRC presents its claims for the alleged illegal exploitation of mineral
resources in three simplistic steps:
1. It starts by asserting that UPDF troops were present in some locations
in the DRC and assumes that they were in those locations at all times
between 1998 and 2003;
2. It then refers to several incidents allegedly involving elements of the
UPDF;
3. From this weak foundation, it then leaps to misconstrued economic data
plucked from the UN Panel’s discredited first report to argue that the
difference between the allegedly low production in, and high export
1064 DRCM, para. 5.190.
349
volume of mineral resources from, Uganda between 1998 and 2003
somehow both proves that Uganda illegally exploited Congolese
mineral resources and shows the extent of that alleged exploitation.
8.24 The DRC’s claims suffer from a series of fatal flaws: some do not even fall
within the scope of the Court’s findings in 2005; virtually all are not based upon
proof of specific acts attributable to Uganda that resulted in the unlawful
exploitation of mineral resources; and where some evidence is presented for a very
few internationally wrongful acts ascribable to Uganda, the DRC fails to specify
and prove the exact injury. None of those flaws can be cured by resorting to the
“economic data” just mentioned, as the DRC tries to do. Uganda addresses each of
these failings in turn.
(a) The DRC Cannot Seek Compensation Based on Claims Falling Outside
the Scope
of the Court’s Findings on Natural Resources
8.25 The DRC can claim compensation only for injury caused by actions that
fall within the scope of the Court’s findings on natural resources in 2005.1065 The
DRC has, however, disregarded this requirement in several respects.
8.26 For example, the DRC claims that Uganda exploited gold in Bondo, a
locality in the Bas-Uele Districts in Equator Province.1066 The claim is based on the
following statement from the UN Panel’ first report:
“In the Bondo locality within the Equateur Province,
young men from 12 to 18 years were recruited by
Jean-Pierre Bemba [the MLC leader]. The Ugandan
1065 See Chapter 3, Section II(A).
1066 DRCM, paras. 5.36-5.38.
350
allies trained the recruits and shared with them the
idea that the Ugandan army was an “army of
development” that aimed at improving ordinary
people’s living conditions. After the one-hour
morning “physical training” session, they were sent
to gold mines to dig on behalf of the Ugandans and
Mr Bemba.”1067
8.27 Aside from being unsupported and uncorroborated, this statement is also
too vague to convincingly link the exploitation of gold in Bondo to Uganda. The
Porter Commission concluded as much by stating:
“The UPDF officers and men this Commission
interviewed have admitted that Jean-Pierre Bemba
was an ally and that they trained the rebels under his
command, but denied that they trained young men
recruited by him to mine gold diamonds or coltan.
Jean-Pierre Bemba has also denied the allegation.
Since the names of the alleged eyewitnesses who
gave information to the original Panel were not
disclosed, this Commission is unable to investigate
the matter further, concludes that there it is unable
to find evidence to support this allegation”.1068
8.28 At best, the statement the DRC cites from the UN Panel’s first report
suggests that MLC rebels were exploiting gold. But the DRC cannot press this
claim because it is contrary to the Court’s express finding in the 2005 Judgment
that Uganda was not responsible for acts of looting, plundering and exploitation
committed by rebel groups outside Ituri.1069 Wrongful conduct for which the Court
1067 Ibid., para. 5.37 (Translation by Counsel, original in French: “Dans la localité de Bondo,
province de l’Equateur, des jeunes de 12 à 18 ans étaient recrutés par Jean-Pierre Bemba. Les alliés
ougandais entraînaient les recrues et leur inculquaient l’idée que l’armée ougandaise était une
‘armée de développement’ dont l’objectif était d’améliorer les conditions de vie de la population.
Après la séance ‘d’exercice physique’ d’une heure le matin, ils étaient envoyés dans les mines d’or
afin d’extraire le minerai pour le compte des Ougandais et M. Bemba”.). 1068 Porter Commission, Final Report, p. 71 (emphasis added), Annex 52.
1069 Armed Activities (2005), para. 247 (“As for the claim that Uganda also failed to prevent the
looting, plundering and illegal exploitation of the DRC’s natural resources by rebel groups, the
351
did not find Uganda responsible in 2005 plainly cannot serve as a basis for
compensation.1070
8.29 The same is true with respect to the DRC’s new sweeping allegations that
“the unofficial trade in gold [was] likely facilitated by the lax enforcement of
regulations at the Uganda-Congo border posts” and by the lack of requirement for
Ugandan companies “to inquire about the origin of the gold that they bought”.1071
To prop up those allegations, the DRC also claims that two private companies in
Uganda, Uganda Commercial Impex, Ltd. and Machanga, Ltd. “declared to Human
Rights Watch researchers that the gold they traded came from the Congo (and more
specifically from Ituri)”.1072
8.30 Here again, the DRC disregards the fact that the Court made no findings
that Uganda was internationally responsible for “the lax enforcement” of
regulations or not imposing on private companies the requirement to enquire about
the origin of gold. Nor did the Court find Uganda internationally responsible for
“the unofficial trade in gold” carried out by private persons.1073 Res judicata bars
Court has already found that the latter were not under the control of Uganda (see paragraph 160
above). Thus, with regard to the illegal activities of such groups outside of Ituri, it cannot conclude
that Uganda was in breach of its duty of vigilance”.).
1070 Even if, quod non, the DRC could prove that UPDF forces exploited gold in the mines in the
Bondo area, the DRC still fails to adduce any evidence on the levels of exploitation in that locality.
1071 DRCM, para. 5.48 citing to Human Rights Watch, The Curse of Gold, Democratic Republic of
the Congo (2005), Annex 57.
1072 DRCM, para. 551 (Translation by Counsel, original in French: “ont déclaré aux chercheurs de
Human Rights Watch que l’or dont ils faisaient commerce provenait du Congo (et plus
spécifiquement d’Ituri)”.).
1073 Indeed, as the Porter Commission concluded, Uganda cannot be blamed that gold was smuggled
because of an “inefficient Customs Service and a porous border. It is not the only country in Africa
with these problems.” Porter Commission, p. 109, Annex 52. The Porter Commission also found
that the UN Panel of Experts wrongly attributed smuggling by private actors and rebels to Uganda.
See Porter Commission, Final Report, pp. 163-164; 167, Annex 52.
352
the DRC from claiming compensation based on allegations unrelated to acts for
which Uganda was found responsible in 2005.
8.31 Equally of no help is the DRC’s reference to a 2005 Human Rights Watch
report mentioning that two Ugandan private companies were trading gold from the
Congo. Human Rights Watch explained that those companies were buying gold
from private persons in the DRC and exporting it to Dubai, South Africa and
Switzerland. It saw nothing illegal in those operations, concluding that those
companies “do not operate illegally but rather benefit from the loose regulation of
the gold trade”.1074 Indeed, the DRC has failed to show any evidence connecting
the operation of those companies, or any Ugandan company, to specific wrongful
acts for which the Court found Uganda responsible in 2005.
8.32 The DRC also disregards the Court’s findings on liability when it presents
claims for the alleged destruction of the Gorumbwa mine and “theft of fuel and
explosives” in unspecified locations of OKIMO mining company.1075 The DRC
may be entitled to pursue these claims but not under a heading related to the
exploitation of natural resources. These claims are properly considered as being
related to property damage, and even then could only serve as a basis for recovery
if the DRC were to prove both the extent of the alleged property damage and
directly connect them to specific wrongful actions attributable to Uganda (neither
of which it does).1076
1074 Human Rights Watch, The Curse of Gold, Democratic Republic of the Congo (2005), p. 109
(emphasis added), Annex 57.
1075 DRCM, paras. 5.28, 5.32 (Translation by Counsel, original in French: “vol de carburant et
d’explosifs”).
1076 These claims still suffer from significant evidentiary shortcomings. For example, the DRC’s
allegation that UPDF soldiers destroyed the Gorumbwa mine rests on one illegible report of the
OKIMO company to the Governor of the Province of Kibali-Ituri, dated 4 September 1999.
353
(b) The DRC Cannot Claim Compensation for Damages that Did Not
Result from Uganda’s Wrongful Acts
8.33 The Court indicated in the 2005 Judgment that, at this reparations stage, the
DRC must prove “specific actions of Uganda” that resulted in “exact injury” to the
DRC. Thus, even if the DRC could establish the existence of illegal exploitation of
mineral resources, that injury would only be compensable if the DRC were to prove
that the injury was the “result” of specific actions of Uganda falling within the
scope of the internationally wrongful acts identified in the 2005 Judgment.1077
8.34 Yet the DRC offers virtually no evidence as to specific instances or specific
places where acts of illegal exploitation by Uganda ostensibly occurred. Nor has
the DRC made any effort to identify specific time-periods during which any such
illegal exploitation took place. The DRC simply assumes that any exploitation of
natural resources in the DRC must be attributable to Uganda. In fact, the DRC’s
assumption is even more brazen. As discussed in greater detail below, the DRC’s
claims rest entirely on an assumption that evidence of exports of minerals from
Uganda demonstrates unlawful exploitation by Uganda in the DRC. Yet there are
myriad reasons why exports of minerals from Uganda, even if proven, may have
nothing to do with illegal exploitation by Uganda in the DRC. That is why it is
critical for the DRC to prove specific incidents of illegal exploitation in the DRC,
so that the Court can be confident that it was a specific act of Uganda that resulted
in specific illegal exploitation in the DRC, rather legal exploitation within or
However, the report makes no mention of UPDF soldiers. Further, even if the DRC could prove
that the mine was indeed destroyed by UPDF soldiers, it would have to provide documentary
evidence showing the extent of destruction and valuation of damages. See DRCM, para. 5.28;
Rapport de la société OKIMO au Gouverneur de la Province de Kibali-Ituri (4 Sept. 1999), DRCM
Annex 5.5.
1077 See Chapter 4, Section I(B).
354
outside the DRC, or illegal exploitation within the DRC by some actor other than
Uganda.
8.35 The DRC alleges, for example, that in Ituri FNI militiamen took control of
the Adidi mine from the UPC in March 2003 and collected taxes from gold panners
at a rate of about US$ 1 per person.1078 Because this allegation does not implicate
UPDF soldiers, the DRC’s claim would appear to rest on an alleged failure to fulfill
Uganda’s obligations as an occupying Power in Ituri to prevent acts of exploitation
of Congolese natural resources by others.
8.36 As explained in Chapter 4, however, the compensation due for Uganda’s
failure to exercise its obligations as an occupying Power cannot simply be
measured by pointing to injuries materially inflicted by others. The causal nexus
between a wrongful omission and injury “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 [harm] would in fact have been averted if the
Respondent had acted in compliance with its legal obligations.”1079 The DRC has,
however, failed to adduce any evidence showing that what happened at the Adidi
mine (or any other mine in Ituri for that matter) would in fact have been averted if
Uganda had acted in compliance with its obligation of due diligence.
8.37 The DRC Memorial also fails to establish a direct causal link between the
alleged exploitation of coltan and wrongful acts for which Uganda is
1078 DRCM, para. 5.22. The DRC also alleged that the FNI militiamen ultimately destroyed
“numerous pieces of infrastructure, as well as the Adidi mine itself.” Ibid. (Translation by Counsel,
original in French: “de nombreuses infrastructures, ainsi que de la mine d’Adidi elle-même”.).
1079 Bosnia and Herzegovina v. Serbia and Montenegro (2007), para. 462.
355
responsible.1080 For example, the DRC cites to the UN Panel’s report of 16 October
2002 alleging, without any supporting evidence, that coltan was exploited in
Orientale Province by various armed groups under the protection of UPDF.1081 The
UN Panel used a company called La Conmet as a “Case Study” purportedly
showing the exploitation of coltan by Uganda. The allegation was that a UPDF
officer owned La Conmet, a company that received “full exoneration” from the
Commissioner General for RCD–Kisangani for all its activities, and was selling
coltan abroad at US$ 17 per kilogram without paying fiscal and customs duties.1082
8.38 The DRC’s reliance on the La Conmet “case study” as proof of harm caused
by Uganda is misplaced. The Porter Commission found it “not supported by
credible evidence.”1083 In fact, the Commission obtained corroborated evidence
confirming that no Ugandan, let alone a UPDF officer, had any ownership interest
in La Conmet.1084 The Porter Commission also disproved that La Conmet illegally
exploited coltan:
“According to the evidence available, La Conmet
exported only one consignment of coltan from
Democratic Republic of Congo to Ulba, Kazakhstan
in October 2000. The commission has in its
possession receipts for taxes paid by the company to
the Congolese authorities in respect of that export.
1080 Coltan is a short description for columbite-tantalite and know industrially as tantalite, from
which the elements niobium and tantalum are extracted.
1081 DRCM, para. 5.86-5.87 citing to the U.N. Panel of Experts, report of 16 Oct. 2002, paras. 108-
111, Annex 15. 1082 Ibid.
1083 Porter Commission, Final Report, p. 183, Annex 52.
1084 Ibid.
356
Therefore it is not correct that the company was
exempt from paying fiscal and customs duties.”1085
8.39 The DRC’s other claims relating to the alleged exploitation of coltan also
fail for want of a causal link. Citing the Porter Commission’s observation that
“there undoubtedly was coltan from the Congo transiting through Uganda”, for
example, the DRC concludes that the mere fact of coltan transiting through Uganda
conclusively proves that Uganda illegally exploited coltan.1086 This conclusion is
wrong on its face. It also has no support in the Porter Commission Report. The
Porter Commission’s finding about La Conmet exporting coltan after the payment
of fiscal and custom duties to the Congolese authorities indicates that, to the extent
that coltan from the DRC may have transited Uganda, it did so in the normal course
of trade.
8.40 This is also confirmed by another example related to the export of coltan
by a Thai company, Dara Forêt/DARA-Forest. The Porter Commission found that
“Dara Forêt has been exporting coltan for which [it] has a licence, which [the
company’s owner] has produced to this Commission. It does not appear to be
forged. The mineral has been sent in transit through Uganda. Mr Kotiram [the
owner of Dara Forêt] has produced before this Commission Customs documents
which have been verified for this Commission by [Uganda Revenue
Authority]”.1087
8.41 The mere transit of goods from the DRC through Uganda does not
demonstrate any form of illegal exploitation by Uganda. Entities operating in the
eastern DRC were unable to import or export goods through Kinshasa due to the
1085 Ibid.
1086 DRCM, para. 5.88 citing to the Porter Commission, Final Report, p.111, Annex 52.
1087 Porter Commission, Final Report, p. 61, Annex 52.
357
lack of transportation infrastructure. Transit continued to be possible through
Uganda, as has long been the case. Prohibiting such transit would have had an
adverse impact on the people of eastern Congo. This was confirmed in the UN
Panel’s report of 16 October 2002, which advised against closing the border
between the DRC and Uganda and imposing an embargo on cross-border trade.1088
8.42 The DRC’s claim would only be tenable if it could present convincing
evidence showing that specific amounts of coltan transited through Uganda as a
result of specific wrongful actions attributable to Uganda. The DRC presents no
such evidence. Indeed, it presents no evidence at all justifying compensation for
the exploitation of coltan.1089
(c) In the Few Instances Where There Is Evidence of Specific Acts
Attributable to Uganda, the DRC Has Failed to Prove Its Exact Injury
8.43 In a very few instances, the DRC provides some evidence, primarily from
the Porter Commission Report, of specific acts attributable to Uganda resulting in
unlawful exploitation of mineral resources. Yet even if this evidence is regarded as
convincing, the DRC eschews any effort to prove the exact injury resulting from
those acts. 1090
1088 U.N. Panel of Experts, report of 16 Oct. 2002, p. 29, para. 155, Annex 15.
1089 The DRC also cites to uncorroborated sources alleging that in clashes with UPDF local
militiamen recovered coltan from UPDF soldiers. For example, the DRC cites to one report by a
Congolese NGO in support of an allegation that the Mai Mai intercepted from a UPDF convoy “a
package of at least 5000kg of coltan”. DRCM, para. 2.27. However, the source on which the DRC
relies says nothing about “a package of at least 5000kg of coltan”. The DRC appears simply to have
made this up. See DRCM, para. 5.89 citing to Société civile Grand Nord, Point de vue de la Société
civile du Grand Nord sur les interventions militaires de l’Ouganda en RDC, (Extraits), DRCM
Annex 2.7.
1090 See Chapter 3, Section III.
358
8.44 The DRC cites to the Porter Commission’s finding that some UPDF
soldiers took for private gain “contributions of gold from miners to allow them to
mine.”1091 The Commission also addressed the operations of the Victoria
Company, registered in Goma (DRC), which was authorised by rebels to purchase
gold and diamonds, and was paying taxes to the MLC.1092 Although the Victoria
Company had no “Ugandans living in Uganda as shareholders”, and “Uganda as a
state [was] not involved” in its activities,1093 one high-ranking UPDF officer,
according to the Porter Commission, appears to have “facilitated” the company’s
business operations in exchange for “security payments” with the aim of “profiting
for himself”.1094
8.45 Although those actions may fall within the scope of the Court’s general
findings concerning Uganda’s responsibility for the illegal exploitation of mineral
resources, proving their occurrence does not automatically lead to monetary
compensation. Just as was required of the applicant States in the Corfu Channel
and Diallo cases, the DRC still must prove with convincing evidence the specific
harm that the DRC suffered from those actions. The DRC Memorial entirely fails
in that task. It does not present any evidence, let alone convincing evidence,
proving the extent of injury resulting from those actions, or from any other alleged
actions.1095 It does not provide any evidence as to the extraction of resources at
1091 DRCM, para. 5.35 citing to the Porter Commission, Final Report, p. 69, Annex 52.
1092 Ibid., paras. 5.67-5.68 citing to the Porter Commission, Final Report, p. 119-120, Annex 52.
1093 Porter Commission, Final Report, p. 164, Annex 52.
1094 DRCM, para. 5.67-5.68 citing to the Porter Commission, Final Report, p. 119-122, Annex 52.
Notably, the Porter Commission calls into doubt the DRC’s allegation that the high-ranking UPDF
officer in question was directly involved in the operations of the Victoria company and had interest
in it as having “no conclusive evidence”. Porter Commission, Final Report, p. 81, Annex 52.
1095 For example, the DRC alleges based on uncorroborated sources that “the Ugandan soldiers
requisitioned gold from the OKIMO company”, DRCM, para. 5.32 (Translation by Counsel,
original in French: “les militaires ougandais ont requisitionné l’or de la société OKIMO”). If the
DRC could prove this allegation, it would still have to prove how much gold was in fact
359
such locations prior to the conflict to estimate exploitation during the conflict.
Likewise, no attempt is made to determine through documentary evidence any net
loss in value to the DRC or to any of its companies.
8.46 In short, even for the few instances where there is some evidence of illegal
exploitation activities by individual members of the UPDF, the DRC has offered
no evidence specifying and proving the exact injury resulting from such
exploitation. It has therefore provided the Court no basis on which any award of
monetary compensation may be made.1096
(d) The “Economic Data” on which the DRC Relies Prove Nothing
8.47 In a vain attempt to skirt the requirements to prove the exact injury caused
by specific internationally wrongful acts attributable to Uganda,1097 the DRC
contends that the difference between the purported production and export of gold,
diamonds, and coltan/niobium in Uganda between 1998 and 2003 can be used as a
proxy for assessing the injury it allegedly suffered from the illegal exploitation of
those minerals.1098
requisitioned. Yet the DRC offers no evidence about the specific place where some specific amount
of gold was requisitioned. Another example is the DRC’s reference to one illegible and
uncorroborated report from the management of the OKIMO company alleging that on 23 May 2001
“the illegal gold panners” (Translation by Counsel, original in French: “les orpailleurs illégaux”),
supervised by the Ugandan soldiers and by the RCD/ML coordinator, occupied the Durba mine and
the facilities of the OKIMO company. DRCM, para. 5.29 citing to Lettre de Gaspard Lubenda
Diemu au Monsieur le Secrétaire National (23 May 2001), DRCM Annex 5.7. Even if this allegation
were borne out by requisite evidence, the DRC still fails to show the period during which that mine
was illegally exploited; the extent of resources extracted during the relevant period, and what
portion of gold, if any, was exploited by UPDF soldiers; the extraction of resources at such locations
prior to the war enabling to estimate war-time exploitation.
1096 Diallo (2012), paras. 32, 34-36 (The Court monetary compensation cannot be awarded unless a
claimant proves the existence of specific injury); Armed Activities (2005), para. 260.
1097 Armed Activities (2005), para. 260.
1098 DRCM, paras. 5.54, 5.81-5.82, 5.91.
360
8.48 As a threshold matter, Uganda observes that the DRC’s misguided attempt
to use Uganda’s purported export of minerals to prove the injury the DRC allegedly
suffered effectively contradicts the Court’s express finding in 2005 that there was
no “governmental policy of Uganda directed at the exploitation of natural resources
of the DRC or that Uganda’s military intervention was carried out in order to obtain
access to Congolese resources.”1099 But this is far from being the only reason why
the DRC’s claim must fail.
8.49 The DRC bases its claim entirely on the widely criticised (including by the
DRC itself) first report of the UN Panel.1100 In its first report, the original UN Panel
erroneously sought to rely on economic data to confirm the illegal exploitation of
the DRC’s natural resources.1101 The Panel collected statistical information from
inappropriate sources on purported production and export of gold, diamonds and
coltan/niobium in Uganda during 1998-2003. Observing that the alleged levels of
export of those minerals from Uganda exceeded the amount of domestic
production, the Panel speculated: “The gap between production and export could
originate from the exploitation of the natural resources of the Democratic Republic
of the Congo.”1102
8.50 As the choice of the word “could” suggests, even the Panel was not
prepared to go so far as to affirmatively conclude that the gap between production
and export reflected Uganda’s illegal exploitation of mineral resources in the DRC.
The DRC nevertheless presents the first UN Panel’s speculation as a proven fact
1099 Armed Activities (2005), para. 242.
1100 See supra paras. 8.12-8.15.
1101 U.N. Panel of Experts, first report of 12 April 2001, paras. 94-102, Annex 11.
1102 Ibid., para. 97 (emphasis added).
361
and presents the economic data from the first report without making any effort to
understand what those data actually say (and do not say).
8.51 An important preliminary point is necessary. The economic data upon
which the DRC relies are a hodgepodge of numbers that the first UN Panel cobbled
together from a variety of sources, none of which were Uganda’s official statistical
data, including unconfirmed third-party data and incomplete data from some
Ugandan agencies. That other data must be analysed in light of Uganda’s official
statistical information.
8.52 In Uganda, the centralised “source of official statistical information” is the
Uganda Bureau of Statistics (“UBOS”).1103 UBOS is “the principal data collecting
and disseminating agency responsible for coordinating, monitoring and supervising
the National Statistical System.”1104 UBOS is responsible for providing “central
statistics information services”,1105 “promot[ing] standardization in the collection,
analysis and publication of statistics to ensure uniformity and reliability of
statistics”,1106 and “organiz[ing] and maintain[ing] a central depository of statistical
reports.”1107
8.53 As regards statistical information about Uganda’s exports, UBOS collects
relevant export data from the Bank of Uganda, the Uganda Revenue Authority, the
Ministry of Energy and Mineral Development and the Customs Authority. Because
1103 Uganda, Act 12, the Uganda Bureau of Statistics Act, published in The Uganda Gazette, No.
36, Vol. XCI, Acts Supplement No. 7 (11 June 1998), Part II(4)(2)(b), Annex 35.
1104 Ibid., Part II(4)(1).
1105Ibid., Part II(4)(2)(a)(i).
1106 Ibid., Part II(4)(2)(a)(ii).
1107 Ibid., Part II(4)(3)(e).
362
data from these sources concern only some aspects of export, it falls to UBOS to
analyse and reconcile them to capture a true picture of Uganda’s actual exports.
8.54 After “appropriate processing and ascertaining its quality for accuracy,”
statistical information is then “released [by the UBOS] for general
dissemination”1108 in an annual publication of a Statistical Abstract. These
publications have been readily available online since 2002 and contain data
covering the years 1997-2016.1109 Because collecting and monitoring statistical
information is an ongoing process, data published in the Statistical Abstract may
be subject to subsequent revisions to account for possible errors.1110
8.55 The Statistical Abstracts annually include data on Uganda’s external trade.
These data are reflected in the annual publications in Section 4.2 entitled “External
Trade”, which is supplemented by a statistical Table 4.2.A entitled “Exports by
quantity.” This table lists commodities that are regularly exported. Those
commodities that are not regularly exported and do not generate significant export
revenue are not listed separately and may be grouped by general category.1111
1108 Ibid., Part III(20).
1109 See Uganda Bureau of Statistics, Statistical Abstracts, available at
http://www.ubos.org/publications/statistical-abstract/ (last accessed 27 Jan. 2018).
1110 As explained in the 2002 Statistical Abstract, “the Statistical Abstract is designed to serve as a
convenient tool for statistical reference and a guide to other statistical publications and sources.
Note however that, the contents being taken from the Bureau of Statistics and many other
organizations are subject to errors arising from a number of factors including: sampling variability
(for sample studies); reporting error in data for individual units; incomplete coverage; nonresponses,
imputation and processing errors.” See Uganda Bureau of Statistics, Statistical Abstracts
(2002, 2004, 2005), 2002 Statistical Abstract, p. 1, Annex 38.
1111 If a data user is interested in the details of specific commodities grouped in a general category,
however, UBOS can provide those data upon request.
363
8.56 In the discussion below, Uganda will therefore refer to the official data
provided in Table 4.2.A in Section 4.2 on “External Trade,” which is published
annually in the Statistical Abstracts. These data will be supplemented as necessary
by other official data from the UBOS.
8.57 Uganda previously explained these facts when it circulated its observations
to the Security Council on how the original UN Panel ignored official UBOS
statistics, and how the Panel relied on unconfirmed third-party sources and
misconstrued data from other Ugandan agencies.1112 Notably, the reconstituted UN
Panel accepted Uganda’s explanations and, in its report of 16 October 2002,
jettisoned the flawed proposition that the economic data mentioned in the first
report reflected illegal exploitation.1113
8.58 The DRC nevertheless persists in presenting the unsupported, unverified,
uncorroborated and misconstrued data from the UN Panel’s first report as the basis
for its claim for compensation for the exploitation of gold, diamonds, and
coltan/niobium.
i. “Economic Data” on Gold
8.59 To show the extent of its alleged injury for the unproven exploitation of
gold, the DRC relies on “economic data” summarised in Table 1 found in the UN
Panel’s first report.1114 This table is reproduced below:
1112 U.N. Security Council, The Response by the Government of the Republic of Uganda to The
Addendum Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and
Other Forms of Wealth of the Democratic Republic of the Congo (DRC), U.N. Doc. S/2001/1163
(4 Dec. 2001), p. 7-8, Annex 37.
1113 See supra para. 8.9.
1114 U.N. Panel of Experts, first report of 12 April 2001, pp. 19-20, Annex 11.
364
8.60 The first UN Panel said it derived these data from a single source: Uganda’s
Ministry of Energy and Mineral Development. These data do not, however, reflect
conclusive and comprehensive information on Uganda’s exports. As explained
below, they do not reflect actual exports.1115
8.61 The DRC then supplements the data in Table 1 from the UN Panel’s first
report with data from the Ugandan Ministry of Energy and Mineral Development
for the years 2001 to 2003 (which were not analysed by the original Panel of
Experts). On this basis, the DRC claims:
1115 See infra para. 8.63.
365
“According to these reports, Uganda exported 6.09
tons of gold, compared to its own production of
0.000142 tons, in 2001. In 2002, Uganda exported
7.589 tons of gold, compared to its own production
of 0.002565 tons. In 2003, Uganda exported 4.16
tons of gold, compared to its own production of
0.040 tons.
…
According to the statistics of the Ugandan Ministry
for Energy and Mineral Development, supplied to
the Panel of Experts and supplemented by the annual
reports of the ministry, Uganda exported 45.149 tons
of gold from 1998 to 2003, compared to its own
production of 0.06 tons. Exports that could not be
justified by its own production therefore rose to
45.143 tons.”1116
8.62 Based only on these data, the DRC claims that 45.143 tons represents the
minimum amount of DRC gold illegally exploited by Uganda.1117 The claim is
misconceived, not least because it disregards statistical and regulatory factors that
explain the apparent gap between Uganda’s purported production and export of
gold.
8.63 The reliance of the first UN Panel, and now the DRC, on export data from
the Ministry of Energy and Mineral Development was a significant mistake. The
1116 DRCM, paras. 5.42, 5.55 (Translation by Counsel, original in French: “Suivant les statistiques
du ministère ougandais de l’Energie et du développement minérale, fournies au Groupe d’experts
et complétées par les rapports annuels dudit ministère, l’Ouganda a exporté 45,149 tonnes d’or de
1998 à 2003, pour une production propre de 0,06 tonnes. L’exportation non justifiable par une
production propre s’élève donc à 45,143 tonnes”.) (Translation by Counsel, original in French: “En
2001, l’Ouganda exportait, selon ces rapports, 6,09 tonnes d’or pour une production propre de
0,000142 tonnes. En 2002, l’Ouganda exportait 7,589 tonnes d’or pour une production propre de
0,002565 tonnes. En 2003, l’Ouganda exportait 4,16 tonnes d’or pour une production propre de
0,040 tonnes”.). 1117 DRCM, 5.55. The DRC also makes an alternative claim that Uganda allegedly exploited 67 tons
of gold from 1998-2000. As will be shown below at paras. 8.72 et seq., this claim has no basis.
366
Ministry of Energy’s figures reflect export permits issued by the Ministry. They
indicate the amount of gold for which permit-seekers sought authorisation to
export from Uganda, not what they actually exported. The data therefore reflect
numbers that are higher than the amount of gold actually exported.
8.64 Official UBOS data show that the amount of gold actually exported is much
lower. Official statistical information published by the UBOS in the 2002, 2004,
and 2005 Statistical Abstracts is summarised in the table below:1118
TABLE 8.1: Uganda’s Export of Gold and Gold Compounds by Quantity, 1997 – 2004
YEAR QUANTITY (kg)
1997 1,381
1998 665
1999 4,231
2000 5,297
2001 6,161
2002 7,117
2003 3,478
2004 5,465
8.65 Uganda notes the data have subsequently been updated by UBOS to take
account of better information. The most significant change is an upward adjustment
for 1998 from 665 kg to 2,247 kg of gold exported.1119 The updated data are
reflected in the table on the next page:
1118 This table combines data from Table 4.2A, Uganda Bureau of Statistics, Statistical Abstracts
(2002, 2004, 2005), Annex 38.
1119 Letter from Imelda Atai Musana, Executive Director, Uganda Bureau of Statistics to the
Solicitor General, Ministry of Justice and Constitutional Affairs, UBOS/30/30 (26 Oct. 2017),
Annex 39.
367
TABLE 8.2: Uganda’s Export of Gold and Gold Compounds by Quantity, 1997 – 2004 (as
updated by UBOS)
YEAR QUANTITY (kg)
1997 2,035
1998 2,247
1999 4,231
2000 5,926
2001 6,158
2002 7,086
2003 3,275
2004 5,277
Total 36,235
8.66 Uganda’s official statistical information thus shows that between 1998 and
2003 Uganda did not export 45,149 kg of gold, as the DRC contends. Rather, it
exported 28,923 kg of gold during that period.1120
8.67 A regulatory factor contributed to the apparent difference between the
alleged production and export figures. Uganda explained in Chapter 2 that it
adopted trade liberalisation measures in the 1990s that, among other things,
removed export duties. As a result, exporters no longer had an incentive to
underreport exports. In addition, the reported figures for the production of gold in
Uganda are understated. Many artisanal miners and other unlicensed small-scale
producers did not report their production out of fear that they might be prosecuted
for mining without licenses. Those producers then sold their unreported output to
licensed export traders who reported those products as exports, making the export
figures larger than the production figures. Thus, after the liberalisation of Uganda’s
trade policies a gap emerged between production and export figures. Exporters no
1120 Uganda Bureau of Statistics, Statistical Abstracts (2002, 2004, 2005), Annex 38.
368
longer had reason to avoid reporting the actual level of their activity, but many
producers continued to avoid reporting their production.
8.68 Uganda presented these explanations in its responses to the reconstituted
UN Panel charged with correcting the flaws of the original Panel’s report. And, as
stated, in its final report, the reconstituted Panel did not give credence to the illconceived
speculation of the first Panel, based on erroneous data, that “the gap
between production and export [in Uganda] could originate from the exploitation
of the [Congolese] natural resources”.1121 The reconstituted Panel did not even
suggest that Uganda’s export of gold (or other minerals) was linked to its
exploitation of natural resources in the DRC.
8.69 The arguments and economic data the DRC takes from the UN Panel’s first
report were also disproved by the Porter Commission. After carefully analysing
economic data and examining persons involved under oath, the Porter commission
reached several conclusions. It confirmed in the first instance that unreported
artisanal production increased Uganda’s gold exports above the reported
production figures:
“[T]he figures for production in Uganda do not
reflect true production, because artisanal miners do
not declare production, whereas exporters do.
Nevertheless there is widespread artisanal
production in Uganda, since this would be the only
source of gold production in Uganda, apart from the
production from one mine in development.”1122
1121 U.N. Panel of Experts, first report of 12 April 2001, para. 97 (emphasis added), Annex 11.
1122 Porter Commission, Final Report, p. 109, Annex 52.
369
8.70 The Porter Commission also observed that gold was smuggled through the
always-porous borders between the DRC and Uganda, circumventing Uganda’s
authorities. The Commission found that Uganda was not responsible for gold
smuggling or preventing gold smuggling, and that Uganda derived no benefit from
smuggled gold:
“With relation to the acquisition of proper statistics,
the problem appears to be the recording of
production. This Commission visited a gold
exporter, and saw one transaction through from the
visit of the client with unprocessed gold dust to the
melting of the gold, and payment for it. The client
was a businessman in Arua [the DRC], and he
brought one large packet which was split up into
many smaller packets, each of which belonged to an
artisanal miner. Each one was painstakingly labelled
with the name of the artisan, and they were all melted
and assessed individually, and the payment for each
man calculated.
In such circumstances it is impractical to expect the
artisans to notify gold production and source, even
where the law requires it. It is only the exporter who
is required to fill in statistical forms for export.
Production and, more importantly, source figures
ought also to be required of whoever is the first
person in Uganda to melt the gold down, because the
gold dust brought contains many impurities. In that
regard, it was quite clear from the visit that URA
[Uganda Revenue Authority] has no hope of
charging import duties, because the individual
packets were so small (smaller than a matchbox,
though heavy, and quite valuable) that they were
easy to hide. For the same reason, it might be
impractical to require source figures, because gold
smuggled through the border would be unlikely to be
declared as sourced from outside Uganda, so that it
was not dutiable. This Commission was told that the
sources were all within Uganda: but looking at some
370
of the names involved, and bearing in mind the fact
that the client was from Arua, this was unlikely.
This Commission’s observation of the practice and
procedure of, at least, artisanal gold production was
that it would be very difficult, if not impossible to
control gold imports from across the border, or to
produce production statistics of any kind. Therefore,
even if the Uganda Government ought to have
noticed that production figures did not match export
figures, there was very little that could be done about
it.”1123
The Commission also stated that:
“It is quite clear therefore that there is massive
smuggling of gold, and that the figures from any
source cannot be relied upon. One wonders how it
can be suggested that Uganda must have realised
what was going on with respect to Gold, or how
Uganda can be blamed for anything but an
inefficient Customs Service and a porous border. It
is not the only country in Africa with these
problems.”1124
8.71 Consistent with the Porter Commission’s findings, the Court in its 2005
Judgment made no finding that Uganda was responsible for gold smuggling. Nor
did the Court find that Uganda derived any benefit from illegally exploited gold.
Needless to say, the DRC offers no evidence connecting even a single gram of
illegally exploited gold or smuggled gold to Uganda’s export of gold. There is thus
no basis for the DRC’s claim that Uganda illegally exploited 45 tons of Congolese
gold.1125
1123 Ibid., pp. 110-111 (emphasis added), Annex 52.
1124 Ibid., p. 109 (emphasis added), Annex 52.
1125 DRCM, para. 5.55.
371
8.72 In addition to this so-called “minimum” claim, the DRC also makes an
alternative claim that Uganda actually exported more than 67 tons of Congolese
gold between 1998 and 2003. This claim is mistakenly premised on economic data
from the COMTRADE database maintained by the Statistics Division of ECOSOC.
The DRC found these data in the Porter Commission Report. The Porter
Commission, for its part, obtained the COMTRADE data on Uganda’s purported
gold export in order to compare it with the data from the Ministry of Energy and
Mineral Development cited in the First Panel Report.1126 The Porter Commission
also analysed COMTRADE data on gold purportedly imported by Uganda’s trade
partners.1127 Ultimately, the Porter Commission found the COMTRADE data
unhelpful in determining Uganda’s actual gold exports.1128
8.73 Undeterred, the DRC selectively cites to COMTRADE data appearing in
the Porter Commission Report and argues:
“The COMTRADE figures presented by the Porter Commission are
higher overall than those presented by the Panel of Experts.
According to this source, 3 tons of gold were exported from Uganda
in 1998 (which is less than the 5.03 tons mentioned by the Panel of
Experts), but this figure then rose to 21 tons in 1999 (compared to
11.45 according to the Panel of Experts), and then to 43 tons in 2000
(compared to 10.83 according to the Panel of Experts), before
dropping to zero in 2001 (a year for which the Panel of Experts does
not have a figure). The Porter Commission’s report does not have
figures for 2002 and 2003.”1129
1126 Porter Commission, Final Report, p. 108, Annex 52.
1127 Ibid., p. 109.
1128 Ibid.
1129 DRCM, para. 5.45 (Translation by Counsel, original in French: “Les chiffres COMTRADE
présentés par la Commission Porter sont globalement plus élevés que ceux du Groupe d’experts.
Selon cette source, 3 tonnes d’or ont été exportées d’Ouganda en 1998 (soit moins que les 5,03
tonnes mentionnées par le Groupe d’experts), mais ce chiffre passe ensuite à 21 tonnes en 1999
372
8.74 On this basis, the DRC concludes:
“According to COMTRADE statistics presented by
the Porter Commission, Uganda exported 3 tons of
gold in 1998, 21 tons in 1999, 43 tons in 2000 and
zero tons in 2001, which amounts to a total of 67 tons
from 1998 to 2000. The Porter Commission has no
figures for 2002 and 2003.”1130
8.75 The DRC thus claims in the alternative that Uganda should be held
responsible for the unlawful exploitation of at least 67 tons of gold, and reserves
its right to supplement its claim in light of COMTRADE statistics for 2002 and
2003.1131
8.76 The DRC’s passion for high numbers is clear. But the Porter Commission
concluded that the COMTRADE data the DRC cites make no sense:
“What concerns this Commission is that the
COMTRADE figures declared by Uganda Bureau of
Statistics are 16, 35, and 43 million dollars for 1998,
1999, and 2000 respectively. These figures are far
too high to be matched by likely artisanal production
in the Democratic Republic of Congo even taken
together with Uganda, and they are not matched by
COMTRADE Partner Import figures which are 2, 4,
and 14 million dollars only, (which are much more
acceptable in relation to artisanal production.”1132
(contre 11,45 selon le Groupe d’experts), à 43 tonnes en 2000 (contre 10,83 selon le Groupe
d’experts), puis à zéro en 2001 (année pour laquelle le Groupe d’experts ne présente pas de chiffre).
Le rapport de la Commission Porter ne présente pas de chiffres pour 2002 et 2003”.). 1130 Ibid., para. 5.55 (emphasis added) (Translation by Counsel, original in French: “Suivant les
statistiques COMTRADE présentées par la Commission Porter, l’Ouganda a exporté 3 tonnes d’or
en 1998, 21 tonnes en 1999, 43 tonnes en 2000 et zéro tonnes en 2001, soit un total de 67 tonnes de
1998 à 2000. La Commission Porter ne présente aucun chiffre pour 2002 et 2003”.).
1131 Ibid., para. 5.61. 1132 Porter Commission, Final Report, p.110 (emphasis added), Annex 52.
373
As the Porter Commission made clear, 67 tons is too high a figure to be matched
by artisanal production of gold in the DRC and Uganda (which was at the time the
most prevalent method of gold mining). Moreover, the amount of gold purportedly
exported by Uganda does not match the amount of gold reported as being imported
from Uganda by its trade partners. The amount of gold purportedly imported from
Uganda between 1998 and 2001 totals 20,000 kg, very close to the amount
published in the UBOS Statistical Abstracts, as updated by the UBOS,1133 for 1998-
2001 (18,562 kg).
8.77 The DRC’s claim that Uganda illegally exploited 67 tons of Congolese gold
fails every bit as does its alternative claim that Uganda illegally exploited 45.143
tons of Congolese gold. The DRC has offered no legal basis for an award of
monetary compensation for the exploitation of gold.
ii. “Economic Data” on Diamonds
8.78 In an attempt to show the extent of its alleged injury for the unproven
exploitation of diamonds, the DRC relies on economic data summarised in what is
labelled “Table 1” found in a report of the British All Party Parliamentary
Group1134:
1133 Letter from Imelda Atai Musana, Executive Director, Uganda Bureau of Statistics to the
Solicitor General, Ministry of Justice and Constitutional Affairs, UBOS/30/30 (26 Oct. 2017),
Annex 39.
1134 The DRC annexes the wrong British All Party Parliamentary Group report to its Memorial as
Annex 5.10. The correct report containing the table reproduced in paragraph 5.76 of the DRCM is
annexed to this Counter-Memorial as Annex 53.
374
8.79 The DRC adds up the purported value of Uganda’s diamond exports during
1998-2001 and, much like it did with gold, on that basis alone alleges that Uganda’s
illegal exploitation of diamonds in the DRC during the given period amounts to
US$ 7,055,885.1135 The DRC also reserves its right to supplement this claim with
the numbers corresponding to Uganda’s diamond exports in 2002 and 2003 so as
to cover the entire period of Uganda’s presence in the DRC.1136
8.80 This claim is every bit as misconceived as the DRC’s claims concerning
gold. The DRC reads too much into the numbers summarised in Table 1. The DRC
presents a redacted version of this table in paragraph 5.76 of its Memorial. That
redacted version does not, however, show the sources of the data underlying this
element of its claim.
1135 DRCM, para. 5.81.
1136 Ibid., 5.61.
375
8.81 Uganda has reproduced a complete version of the table provided above. As
it indicates, the data concerning the purported value of diamonds exported from
Uganda came primarily from a private institution, the Diamond High Council
(currently restructured into Antwerp World Diamond Center). These data were
originally presented in the UN Panel’s first report and then reprinted in the British
All Party Parliamentary Group report.
8.82 The DRC Memorial does not say whether, much less provide evidence that,
the data from the Diamond High Council were independently verified, by the UN
Panel, the British All Party Parliamentary Group or anyone else. Notably, both the
Porter Commission and Uganda previously asked the UN Panel to share the data it
obtained from the Diamond High Council.1137 For unknown reasons, the Panel
refused to do so. The DRC also fails to present any materials from the Diamond
High Council corroborating the data on which the DRC relies. The DRC’s whole
compensation claim thus appears to rest solely on “evidentiary” material emanating
from a single source and having no corroboration.1138 If it is considered at all, it
must be treated with caution.1139
8.83 In fact, the reliability of these uncorroborated data has been called into
question.1140 After contacting the Diamond High Council to check the Council’s
1137 U.N. Security Council, The Response by the Government of the Republic of Uganda to The
Addendum Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and
Other Forms of Wealth of the Democratic Republic of the Congo (DRC), U.N. Doc. S/2001/1163
(4 Dec. 2001), pp. 5, 34-35, Annex 37.
1138 Armed Activities (2005), para. 61 (“The Court will treat with caution evidentiary materials
specially prepared for this case and also materials emanating from a single source”.). Ibid., para.
159 (“The Court has not relied on various other items offered as evidence on this point by the DRC,
finding them, uncorroborated, based on second-hand reports, or not in fact saying what they are
alleged to say by the DRC, or even in some cases partisan”.).
1139 Ibid., para. 61.
1140 Ibid.
376
data as reported by the UN Panel, the Porter Commission found that the data are
not based on legal export of diamonds from Uganda but rather are based upon the
declared origin of imports after arriving in Belgium:
“This Commission has checked the original Panel’s
information with the Diamond High Council. It is
revealed that, although much more care is now
exercised by the Belgian Authorities, at the time in
question, the source of diamonds was accepted upon
the information of the importer, and Diamond High
Council statistics (which the original Panel quoted as
their source) relate to import to Belgium. Therefore,
although the original Panel treat as suspicious the
fact that, according to external statistics, Uganda
was a diamond exporter, in fact that information was
based upon the most unreliable figures.
…
[The Commission’s] conclusions are undeniable:
there are no import figures for diamonds, nor transit
figures. Diamonds are therefore quite clearly being
smuggled through Uganda, and declared as sourced
in Uganda by the smugglers on arrival in Antwerp.
This Commission has evidence of one such
transaction, privately conducted.1141 That being so,
1141 The transaction in question was explained on pages 113-114 of the Porter Commission, Final
Report as follows:
“For example this Commission has traced a Police case in Uganda where one Khalil, who
is mentioned in the original Panel Report, admitted to obtaining diamonds in the
Democratic Republic of Congo in April 2000, flying them in to the Military Air Base, and
ultimately sending a packet of them through associates to the International Airport, where
the diamonds were exchanged (in the Gents toilet at the airport) for $550,000 in cash with
a courier from Belgium who caught the next flight back. This was hardly an honest
exchange, particularly as there is no record of import, export or transit through Uganda.
The reason the matter was reported to the Police in Uganda was because on the way back
to Kampala, the car was stopped by armed men and the money stolen. The case is dealt
with more particularly at Paragraph 21.3 below. The point is that the source of information
in Belgium that the diamonds originally came from Uganda (which they did not) was the
courier who had been involved in this shady deal. Had the original Panel known all this,
perhaps they would not have been so hasty as to lay the blame at Uganda’s door: and to
establish the source of the information upon which they relied was only a telephone call
377
since no tax is paid in Uganda, it is difficult to
understand the relevance of lower tax rates in
Kampala, how the Ugandan Treasury benefits, and
how the UPDF is able to use the proceeds for the
continuation of the war, as the reconstituted Panel
claim. Tax paid in the Democratic Republic of
Congo would be paid to rebel authorities, who would
be able to use the money for the continuation of the
war. This, however, would not be a matter to be laid
at Uganda’s door, although it is true that there is
cause to believe that some top Commanders were
secretly profiting for themselves from ‘Security
Funding’, a different matter. This point is a specific
example of the unfortunate failure of the
reconstituted Panel to carry out its mandate”.1142
8.84 The DRC Memorial omits another important detail. In reprinting the data
reflected in Table 1, the British All Party Parliamentary Group expressly noted:
“The Ugandan government has disputed these figures, which were originally
shown in the first report of the UN Panel of Experts”.1143
8.85 There is good reason Uganda disputed those figures. According to official
statistical information from UBOS, Uganda exported miniscule quantities of
diamonds between 1998 and 2003. This is shown in the table on the next page:
away, for that is how this Commission established this information. There is no doubt that
diamonds are being smuggled, and falsely declared as sourced in Uganda. Bearing in mind
that a fortune can be carried in a pocket, it is difficult to see what Uganda as a State can
do about this. Partner Countries must be aware that Uganda is not a diamond producing
country, and yet are prepared to publish figures which deny that fact.” Annex 52.
1142 Ibid., pp. 113, 162, Annex 52.
1143 U.K. All Party Parliamentary Group on the Great Lakes Region and Genocide Prevention,
Cursed by Riches: Who Benefits from Resource Exploitation in the Democratic Republic of the
Congo?, p. 18, note 54, Annex 53.
378
TABLE 8.3: Uganda’s Export of Diamond, Diamond Dust and Diamond Powder by
Quantity and Value in US$, 1997 – 20041144
YEAR QUANTITY (kg) US$
1997 0 4,141
1998 ─ ─
1999 ─ ─
2000 ─ ─
2001 0 201
2002 ─ ─
2003 ─ ─
2004 0 52
8.86 The DRC’s claim that Uganda illegally exploited Congolese diamonds in
the amount of US$ 7,055,885 therefore lacks foundation. Accordingly, the DRC
has offered no legal basis upon which monetary compensation can be awarded for
this unproven claim.
iii. Coltan/Niobium
8.87 To show the extent of its alleged injury for the exploitation of
coltan/niobium, the DRC relies on “economic data” presented in the same Table 1
from the British All Party Parliamentary Group’s report. That table repeats the data
originally presented in the UN Panel’s first report, which in turn is based on
statistics apparently received from Uganda’s Ministry of Energy and Mineral
Development. For convenience, this table is reproduced below:
1144 Letter from Imelda Atai Musana, Executive Director, Uganda Bureau of Statistics to the
Solicitor General, Ministry of Justice and Constitutional Affairs, UBOS/30/30 (26 Oct. 2017),
Annex 39. Because diamonds are not consistently exported and do not generate significant export
revenue they are not accorded a separate commodity line in Statistical Abstract. Therefore, export
data on diamonds are maintained separately by the UBOS and are made available upon request. See
supra para. 8.55.
379
8.88 Relying only on this one table, the DRC claims that, for the period 1998-
2000, Uganda illegally exploited 90,640 kg of Congolese coltan and US$
1,375,000 worth of Congolese niobium.1145
8.89 Even if the DRC had proven to the Court specific incidents whereby acts
attributable to Uganda resulted in the illegal exploitation of coltan/niobium in the
DRC, quod non,1146 these “economic data” are no help to the DRC in proving the
extent of the harm.
1145 DRCM, para. 5.91. It also bears emphasis that being unable to connect exports of niobium to
Uganda, the DRC even manages to add to Uganda what cannot be added under any circumstances.
It adds value for 1997, which exceeds the ratione temporis scope of the 2005 Judgment, which is
limited only to the period of 1998-2003. The question here is not so much about the amount of
13,000 which is meaningless in the context of the DRC multibillion doller claim. It is just that the
DRC claim balloons to such astronomical amounts as a result of arithmetical flaws that go hand in
hand with legal flaws.
1146 As shown in DRCM, paras. 8.37-8.38, the DRC has even failed to establish that Uganda was
engaged in illegal exploitation of coltan/niobium. The DRC’s allegations are based on what was
proven to have been legal exploitation of coltan by one company La Conmet.
380
8.90 As regards the data on coltan, this mineral does not even appear as an export
commodity in the official statistical information maintained by UBOS. Instead,
UBOS records export of niobium and tantalum (both of which are derived from
coltan ore). The volume of those minerals exported during 1997-2004 is set out in
the tables below:
TABLE 8.4: Uganda’s Export of Niobium by Quantity and Value in US$, 1997 – 2004
YEAR QUANTITY (kg) US$
1997 ─ ─
1998 11,060 231,265
1999 802 6,632
2000 ─ ─
2001 4,038 19,398
2002 ─ ─
2003 ─ ─
2004 ─ ─
TABLE 8.5: Uganda’s Export of Tantalum by Quantity and Value in in US$, 1997 – 2004
YEAR QUANTITY (kg) US DOLLAR
1997 ─ ─
1998 5,767 289,253
1999 ─ ─
2000 ─ ─
2001 1,550 8,500
2002 ─ ─
2003 ─ ─
2004 ─ ─
8.91 As regards the data on niobium, this table shows that the value of niobium
exports for the years stated was US$ 257,295, nearly five times less than the DRC’s
claim. Even if you add to that the value of exported tantalite (US$ 297,753), the
number would still be nearly three times lower than the DRC’s claim.
381
8.92 The DRC fails to connect even these much smaller numbers to any specific
incidents of alleged illegal exploitation of Congolese coltan/niobium by Uganda.
In this respect, Uganda observes that the Porter Commission refuted the claim that
Uganda’s exports of niobium were connected to the illegal exploitation of DRC
resources:
“The original Panel say that the pattern of Niobium
Export appears to be the same: no production prior
to 1997, followed by an increase in exports. In
respect of all these minerals, due to the original
Panel’s recital of data source, this Commission
communicated with WTO, who said that they did not
keep such statistics, and referred this Commission to
the UN COMTRADE Database. So there is some
confusion there, as the figures are somewhat
different. Uganda declares exports as from 1995,
whilst Partner Imports start in 1998. This makes a
nonsense of the original Panel’s conclusion that
Export started in 1997, to coincide with the start of
the war. The original Panel’s figures are much higher
than those from the COMTRADE database, but the
figures never exceed $782,000 in a year from
whatever source. This Commission does not think
that the figures bear out the original Panel’s
conclusion, or that Niobium bears any real relation
to the alleged illegal exploitation of the natural
resources of the Democratic Republic of Congo.”1147
8.93 The “economic data” on which the DRC relies thus cannot support the
DRC’s compensation claim for exploitation of coltan/niobium.
8.94 In conclusion, the DRC proves nothing by simply parroting the allegations
and data from the UN Panel’s first report that were later refuted and retracted. Nor
does the DRC offer the Court any evidence connecting Uganda’s export of gold,
1147 Porter Commission, Final Report, pp. 123-124, Annex 52.
382
diamonds and coltan to specific wrongful actions falling within the scope of the
Court’s 2005 Judgment.
8.95 Given the gravity of the DRC’s allegations and the extraordinary amount
of compensation it claims, something more than conjecture premised on unreliable
economic data is required. The DRC’s claims “require a degree of certainty that
has not been reached here.”1148 Accordingly, there is no basis for the award of
compensation that the DRC seeks.
2. The DRC’s Valuation of Alleged Damages is Methodologically Flawed
8.96 The DRC’s wholesale failure to prove the exact injury resulting from
specific wrongful acts attributable to Uganda makes it unnecessary to discuss the
valuation of that (unproven) injury.1149 Uganda will therefore only briefly address
one fundamental flaw underlying the DRC’s efforts at valuation, if only to
underscore the arbitrariness of its claims.
8.97 Aside from using incorrect economic data purporting to reflect Uganda’s
export of minerals as a proxy for proving specific acts of Ugandan exploitation and
the extent of the alleged injury,1150 the DRC seeks to value its damages based on
the market value, in the form of export prices, of the nominally exploited
1148 Corfu Channel (Merits, 1949), p. 17.
1149 Diallo (2012), para. 14 (“If the existence of injury and causation is established, the Court will
then determine the valuation”.).
1150 See paras. 8.64-8.65, 8.84, 8.90.
1150 DRCM, paras. 5.91-5.92.
383
resources.1151 This approach results in a vast overstatement of the DRC’s alleged
damages.
8.98 The DRC seeks damages for the alleged illegal exploitation of mineral
resources. The measure of any loss to the DRC is not the commercial value of
extracted and exported minerals. Instead, the measure should be the net loss in
value to the State from the exploitation of those resources. If a mine were Stateowned
or owned by a DRC national, for example, the loss the DRC may claim
would be the value of extracted minerals less the costs that would have been
incurred extracting those minerals. If a mine were privately held by a foreign
national, the DRC’s claim would be limited to the loss of tax income, royalties or
other fees that would otherwise have been paid to it. These elements of damages
would, moreover, have to be proven through documentary or other competent
evidence.
8.99 The DRC does not perform any of these analyses or produce any relevant
evidence in purporting to assess its injury. To the contrary, it simply multiplies the
amount of minerals alleged to have been illegally exploited (in the case of gold, for
example, 45 tons) by what the DRC says was the average market price in the period
between 1998 and 2004 (again in the case of gold US$ 14,964.49 per kg). This
effort at quantification is so obviously flawed and so obviously unfounded that no
further comment by Uganda is necessary.
*
8.100 Because the DRC has not established the extent of the injury it allegedly
suffered as a result of Uganda’s illegal exploitation of mineral resources, and
1151 Ibid.
384
because it has also failed to establish any genuine basis for placing a value on that
(unproven) injury, there is no basis in law for the award of compensation the DRC
seeks under this head of damages.
B. WILDLIFE
8.101 The DRC seeks US$ 2,692,980,4681152 for the injury allegedly caused by
Uganda to the wildlife in four national parks: Virunga,1153 Garamba,1154 the Okapi
Wildlife Reserve,1155 and Maiko.1156
8.102 The DRC arrives at the claimed amount by taking four misconceived steps,
each of which is unanchored in any evidence showing specific acts attributable to
Uganda, the exact injury resulting from such acts or its valuation:
 First, the DRC claims direct losses in the form of 54,892 animals of 16
different species that were allegedly killed in its national parks between
1998 and 2003/2004;
 Second, the DRC then fabricates a claim for indirect losses in the form
of 463,792 first generation offspring that would have been born to the
allegedly killed animals;
 Third, the DRC assigns monetary values to killed and unborn animals
based on unreliable, inappropriate and arbitrary prices, including “black
market” prices. In the case of elephants and rhinos, the DRC also
1152 Ibid., para. 5.172.
1153 Ibid., para. 5.165.
1154 Ibid., para. 5.167.
1155 Ibid., para. 5.169.
1156 Ibid., para. 5.171.
385
separately adds still further amounts based on “black market” prices for
ivory and rhino horns; and
 Fourth, to “fully ensure the fair and reasonable nature of its claim”,1157
the DRC applies the arbitrary discount percentages shown in the table
below to reflect the ostensible fact that Uganda was not the sole
perpetrator of the injury for which it claims damages.
TABLE 8.6: The DRC’s Discount Percentages for Each National Park
National Park Alleged injury (US$) Portion of Injury Ascribed to
Uganda (US$)
Virunga 1,038,920,2731158 x 80% = 831,136,2181159
Garamba 2,070,513,8611160 x 50% = 1,035,256,9301161
Okapi Wildlife Reserve 716,133,8001162 x 90% = 644,520,4201163
Maiko 366,133,8001164 x 50% = 183,066,9001165
Total: US$ 2,692,980,468
8.103 The harms the DRC seeks to ascribe to Uganda are unfounded in the
extreme and have no connection to specific wrongful acts attributable to Uganda.
The DRC valuation of its alleged injury is also profoundly flawed.
1157 Ibid., para. 5.164 (Translation by Counsel, original in French: “afin d’assurer pleinement le
caractère équitable et raisonnable de sa demande”.).
1158 Ibid., para. 5.162.
1159 Ibid., para. 5.165.
1160 Ibid., para. 5.166.
1161 Ibid., para. 5.167.
1162 Ibid., para. 5.168.
1163 Ibid., para. 5.169.
1164 Ibid., para. 5.170.
1165 Ibid., para. 5.171.
386
1. The DRC’s Has Failed to Prove the Existence of the Injury to Wildlife It
Seeks to Ascribe to Uganda
8.104 There is reason to doubt that the DRC’s claims for the loss of wildlife fall
within the scope of the Court’s 2005 Judgment. At the merits phase, the DRC
sought to ascribe to Uganda certain limited unproven acts concerning harm to
wildlife: the killing of 4,000 elephants in the Garamba National Park, the
possession of 800 kg of ivory and the deportation of 40 okapis in the Epulu park.1166
Yet the Court’s 2005 Judgment, in both the text and dispositif, contains no findings
that Uganda caused harm to wildlife in the DRC.
8.105 The DRC Memorial proceeds on the assumption that the Court’s general
findings relating to “natural resources” encompass its claims relating to wildlife,
an assumption that may well be incorrect. The Court knows what it decided and
what it did not, but Uganda submits that the Court’s silence with respect to the
DRC’s allegations indicates that those allegations were found to be unproven.
8.106 Assuming arguendo that the Court’s findings on the merits permit a claim
for compensation relating to wildlife, the DRC’s claims for reparation in this regard
clearly exceed the scope of the Court’s findings. As indicated above, at the merits
phase the DRC only presented to the Court certain limited acts concerning harm to
wildlife (the killing of 4,000 elephants, the possession of 800 kg of ivory and the
deportation of 40 okapis). If the Court found on the merits that such exploitation
occurred, then the DRC is limited in this phase to pursuing reparation for those
limited acts. Instead, the DRC now pursues entirely new claims for harm to wildlife
1166 DRC’s Reply on the Merits, in Armed Activities (2005), para. 4.32. Notably, having provided
at the merits phase no evidence supporting those claims, the DRC does not pursue them in assessing
losses.
387
that vastly exceed what it previously alleged and therefore what the Court
addressed on the merits.
8.107 Assuming arguendo that the Court’s findings on the merits permit the DRC
to pursue unfettered reparations for whatever new allegations of harm to wildlife
the DRC can imagine, the DRC must at this phase present convincing evidence
showing with a high level of certainty specific wrongful acts attributable to Uganda
that resulted in specific wildlife loss to the DRC, as well as the valuation of that
loss. As discussed below, the DRC’s claims do not satisfy these requirements.
(a) The Claimed Direct Losses to the Congolese Wildlife Have No
Foundation
8.108 At the outset, Uganda notes that the DRC presents no evidence as to specific
incidents or acts attributable to Uganda resulting in loss of wildlife in the DRC.
The DRC does not present any evidence that on specific dates, in specific places,
Ugandan military forces undertook specific actions that resulted in harm to DRC
wildlife. There are no eyewitness accounts presented to the Court, no sworn
declarations by others who might be knowledgeable about specific incidents, and
no documentary or photographic information contemporaneous with any such
incidents attesting to what happened, by whom and when. For this reason alone,
the DRC’s claims for compensation for loss of wildlife should be denied.
8.109 Rather than base its claims on evidence of specific incidents of harm, the
DRC purports to measure its direct losses based on vague, general information
388
coming from one of its own institutions concerning 16 species of animals allegedly
killed in Congolese national parks as a result of “the Ugandan invasion”.1167
8.110 The alleged losses are summarised in the table below:1168
TABLE 8.7: The DRC’s Alleged Losses of Wildlife Species/Parks GARAMBA VIRUNGA MAIKO OKAPI
WILDLIFE
RESERVE
Total
ANTELOPES 5,000 20,000 1,000 1,000 27,000
ELEPHANTS 5,000 1,229 2,000 2,000 10,229
HIPPOPOTAMUSES 0 107 0 0 107
BUFFALOES 0 9,048 0 0 9,048
GIRAFFES 92 0 0 0 92
OKAPIS 0 0 0 1,000 1,000
RHINOCEROSES 21 0 0 0 21
WARTHOGS 3,905 67 0 0 3,972
BABOONS 0 96 0 0 96
MONGOOSES 0 77 0 0 77
CROCODILES 0 72 0 0 72
HARTEBEESTS 17 0 0 0 17
BUFFON’S KOBS 0 160 0 0 160
WATERBUCKS 808 39 0 0 847
BUSHBUCKS 135 19 0 0 154
CHIMPANZEES 0 0 0 2,000 2,000
8.111 Adding these numbers together shows that the DRC is alleging that 54,892
individual animals were killed as a result of Uganda’s conduct. This loss, the DRC
says, is established by a single source: the DRC’s own Congolese Institute for
Nature Conservation (“ICCN”), a public institution charged with managing
national parks.1169 The DRC Memorial does not, however, explain how and on
what basis the ICCN collected and compiled this information.
1167 DRCM, paras. 5.93, 5.161, 5.166, 5.168, 5.170 (Translation by Counsel, original in French:
“l’invasion ougandaise”).
1168 The table is presented in DRCM, para. 5.138.
1169 DRCM, para. 5.101.
389
8.112 Nor can an explanation be found in the ICCN document entitled
“Récapitulatif des espèces décimés sur les aires protégées de I’ICCN” included as
Annex 1 inside Annex 5.13 to the DRC Memorial.1170 This document consists only
of an unsigned, undated two-page summary table to which no supporting evidence
is attached.
8.113 The table itself consists of three columns. The first and second columns
nominally state the numbers of animals found in the relevant Congolese national
parks in 1998 and 2003/2004, respectively. The third column lists the numbers of
allegedly killed animals. (It appears that the numbers in the third column are the
difference between the numbers listed in the first and second columns.)1171
8.114 With respect to Garamba National Park, for example, the table summarily
lists 6,535 elephants in 1998 and just 1,535 in 2003/2004. On that basis—and that
basis alone—the DRC alleges that 5,000 elephants were killed in that park as a
result of Uganda’s intervention.1172 Using the same approach, the DRC concludes
that 2,000 elephants were killed in Okapi Wildlife Reserve,1173 2,000 in Maiko
National Park,1174 and 1,229 in Virunga National Park.1175 Adding these numbers
together, the DRC makes the sweeping allegation that the total number of elephants
1170 Annex 1 titled “Récapitulatif des espèces décimés sur les aires protégées de l’ICCN” that
contains the ICCN’s undated document titled “Dégâts causés par les militaires Ougandais dans les
aires protégées à l’Est de la DRC” which appears after page 20 in J. Okana, et al., Evaluation Des
Dommages Causés à La Faune Congolaise Par L’Ouganda entre 1998 et 2003 (Sept. 2016) citing
to Institut Congolais pour la Conservation de la Nature, Récapitulatif des espèces décimées sur les
aires protégées de l’ICCN DRCM, Annex 5.13.
1171 Ibid.
1172 Ibid.
1173 Ibid., pp. 22-23 (5000 elephants in 1998 minus 3000 elephants in 2003/2004).
1174 Ibid. (5897 elephants in 1998 minus 3897 elephants in 2003/2004).
1175 Ibid. (1250 elephants in 1998 minus 21 elephants in 2003/2004).
390
killed in all four national parks as a result of Uganda’s conduct is 10,229 (5,000 +
2,000 + 2,000 + 1,229). The DRC uses exactly the same approach to calculate the
nominal losses among other species of animals.1176
8.115 Neither the ICCN nor the DRC have submitted any evidence proving the
accuracy of any of these numbers. Indeed, as stated, the ICCN table contains no
information about how it even established those numbers. Nor does it provide any
contemporaneous inventories of animals from any of the national parks. Uganda
cannot escape the conclusion that the DRC appears simply to have fabricated the
numbers claimed for purposes of this litigation.
8.116 The DRC curiously attempts to validate its claim by reference to UNESCO
data on animals in its national parks. That effort fails. The UNESCO data only
highlight the significantly inflated nature of the DRC’s claims. As just noted, the
DRC alleges that 5,000 elephants were killed in Garamba National Park because
there were ostensibly 6,535 elephants in 1998 and 1,535 elephants in 2003/2004.
By contrast, UNESCO statistics suggest the following number of elephants in the
same park: 5,878 in 1998; 5,983 in 2000; and 6,848 in 2004.1177 In other words,
they actually show a steady increase in the number of elephants during the conflict.
(It also bears note that none of the UNESCO reports the DRC cites suggests that
animals in Congolese national parks were killed as a result of Uganda’s conduct).
8.117 Even setting these very fundamental flaws aside, and assuming the numbers
of allegedly killed animals were accurate (which they are not), it would still be true
that the DRC has offered no proof that the “missing” animals were in fact killed. It
does not necessarily follow that because there were allegedly 6,535 elephants in
1176 Ibid.
1177 DRCM, para. 5.120.
391
Garamba National Park in 1998 and 1,535 elephants in 2003/2004, 5,000 elephants
must have been killed. There are many other possible explanations, including
migration, natural deaths caused by droughts and other factors, and predators. One
cannot simply assume that all the animals were killed, as the DRC does.
8.118 Atop this unproven assumption, the DRC adds a further assumption that all
of those animals were killed as a result of Uganda’s invasion. The DRC offers no
proof to support this assumption. Instead, it erroneously seeks to establish
causation based on the following reasoning: because UPDF soldiers may have been
present in a given location, losses in that location were necessarily caused by
Uganda.1178 But such reasoning is inconsistent with the requirement of proximate
causation that operates even in the context of a jus ad bellum violation, as discussed
in Chapter 4.1179
8.119 With respect to the alleged losses in Maiko National Park, for example, the
DRC starts with the allegation that:
“On August 21, 1998 RCD-ML rebel brigades,
supported by the APR and UPDF, launched a ground
operation along the length of the Lubutu axis, which
is situated on the edge of the park. After this
operation, the Ugandan troops arrived in Kisangani,
on August 21 and 22, 1998.”1180
8.120 On that scant basis, the DRC concludes:
1178 Ibid. See paras. 5.161-5.165 (Virunga); paras. 5.168-5.169 (Okapi); paras. 5.170-5.171 (Maiko).
1179 See Chapter 4, Section I(B).
1180 DRCM, para. 5.133 (Translation by Counsel, original in French: “Le 21 août 1998, les brigades
rebelles du RCD-ML, appuyées par l’APR et l’UPDF, lancèrent une opération terrestre le long de
l’axe Lubutu, qui se situe en lisière du parc. C’est après cette opération que les troupes ougandaises
arrivèrent à Kisangani, les 21 et 22 août 1998”.).
392
“The ICCN surveys come to an estimation of the
number of animals killed at 1,000 antelopes and
2,000 elephants.”1181
8.121 A variation on this same faulty approach appears in the section on losses in
Garamba Park.1182 There, the DRC plucks two unsupported statements from the
UN Panel’s first report of 12 April 2001. One of these statements reads: “[I]n the
area controlled by the Ugandan troops and Sudanese rebels, nearly 4,000 out of
12,000 elephants were killed in the Garamba Park in north-eastern Democratic
Republic of the Congo between 1995 and 1999.”1183 Another statement reads: “[I]n
August 2000, UPDF Colonel Mugeni and a crew of his soldiers were discovered
with 800 kilograms of elephant tusks in their car near Garamba Park.”1184
Immediately thereafter, the DRC leaps to this conclusion concerning the extent of
the damages allegedly caused by Uganda in Garamba Park:
“The ICCN’s assessments outline the loss of 5,000
antelopes, 5,000 elephants, 92 giraffes, 21 white
rhinoceroses, 3,905 warthogs, 17 hartebeests, 808
waterbucks, and 135 bushbucks”.1185
1181 DRCM, para. 5.134 (Translation by Counsel, original in French: “Les recensements de l’ICCN
mènent à estimer le nombre d’animaux tués à 1.000 antilopes et 2.000 éléphants”.).
1182 Ibid, paras. 5.113 -5.124.
1183 Ibid, para. 5.114 citing to U.N. Panel of Experts, first report of 12 April 2001, para. 61 (emphasis
by the DRC) (Translation by Counsel, original in French: “dans le secteur contrôlé par les forces
ougandaises et les rebelles soudanais, près de 4 000 éléphants sur une population de 12 000 ont été
tués dans le parc de Garamba, dans le nord-est de la République démocratique du Congo, entre 1995
et 1999”.), DRCM Annex 1.7.
1184 Ibid, para. 5.115 citing to U.N. Panel of Experts, first report of 12 April 2001, para. 62 (emphasis
by the DRC) (Translation by Counsel, original in French: “en août 2000, le colonel Mugeni des
Forces armées ougandaises et plusieurs de ses soldats ont été découverts avec 800 kilogrammes de
défenses dans leur véhicule près du Parc de Garamba”.), DRCM Annex 1.7.
1185 Ibid, para. 5.117 (Translation by Counsel, original in French: “Les évaluations de l’ICCN font
état de la perte de 5.000 antilopes, 5.000 éléphants, 92 girafes, 21 rhinocéros blancs, 3905
phacochères, 17 bubales, 808 waterbuck et 135 guibs harnachés”.).
393
8.122 That the conclusion does not follow from the predicate and that it lacks
evidentiary support are not the only flaws in this argument. Another shortcoming
is that the two statements pulled from the UN Panel report are unfounded and
uncorroborated. Indeed, they were subsequently called into question by credible
sources. The Porter Commission, for example, refuted the allegation of Ugandan
poaching in Garamba National Park, stating:
“Paragraph 61 of the original Panel Report states that
between 1995 and 1999, 30% of elephants were
killed in Garambwa National Park in areas
controlled by Ugandan troops and Sudanese rebels,
and that there are similar problems in other parks.
There is no evidence available as to who was
responsible for this. There is however evidence that
although there was a detachment at Durba, near the
Park, its duties did not cover the Park. Congolese
Security Reports [that were] produced complained
of poaching by SPLA [Sudan People’s Liberation
Army] in Garambwa Park and there were other
reports of trouble caused by the SPLA there. (Exh.
FM/07/102). It should also be noted that the original
Panel’s allegation covers the period from 1995 to
1999. Ugandan troops did not reach the area until
late 1998, and therefore could only have been
involved in this allegation, if at all, for a very short
time”.1186
1186 Porter Commission, Final Report, p. 72 (emphasis added), Annex 52. As regards the UN Panel
of Experts’ allegation that a UPDF officer was found with 800 kg of ivory, the Porter Commission
also found it as lacking any support: “The original Panel Report does not state the date on which
[the UPDF officer] was found nor by whom he was found, nor to which department or officer of
the Uganda Government Report was made.” Ibid.
394
8.123 No less convincing a refutation of the same allegation comes from Dr Kes
Hillman-Smith, the coordinator of the Garamba National Park project on protecting
wildlife.1187 Discussing elephant poaching, she observed:
“Since early 1997, Garamba National Park in the
northeast of the Democratic Republic of Congo
(DRC—previously Zaire) has been subjected to the
effects of two wars within the country. … The
poaching there in recent years has been primarily for
meat. Patrol monitoring indicates that 70–80% of
the poaching gangs’ members are Sudanese, usually
‘SPLA deserters’, using weapons from the ongoing
war in adjacent southern Sudan. The others are local
Congolese. The increase in poaching during the
active phases of the two DRC wars, however, was
not caused by influxes of Congolese poachers or the
occupying military. The same poachers were there
throughout, but the anti-poaching effort of guards
was temporarily stopped or reduced and the general
breakdown of law and order was exploited”.1188
8.124 There is no mention of Uganda killing elephants in Garamba. To be sure,
this source does mention Uganda, but here is what it says:
“The Ugandan forces acted positively towards
conservation efforts and prevented the sale of
bushmeat; a small increase in poaching was
checked”.1189
8.125 The lack of a genuine causal link between the damages claimed in
Congolese national parks and Uganda’s conduct is further underscored by the
1187 The goal of the project, which took place in the 1990s, was the conservation of the northern
white rhinoceros in Garamba National Park. Kes Hillman-Smith lived in the park and worked there
to protect wildlife for over twenty years.
1188 K. Hillman Smith, “Status of Northern White Rhinos and Elephants in Garamba National Park,
Democratic Republic of Congo, During the Wars” Pachyderm No. 31 (July-Dec. 2001), p. 79,
Annex 79.
1189 Ibid.
395
DRC’s arbitrary apportionment of damages. The DRC claims, without evidence or
justification, that “at the minimum” Uganda is responsible for 50% of damages in
Garamba National Park, 50% in Maiko National Park, 80% in Virunga National
Park and 90% of damages in the Okapi Wildlife Reserve.1190
8.126 To see how arbitrarily the DRC arrives at those percentages, the Court need
look no further than the DRC’s section on losses in the Okapi Wildlife Reserve
(where, it says, 1,000 antelopes, 2,000 elephants, 1,000 okapis, and 2,000
chimpanzees were killed). 1191 To prove “the causal link existing between the
presence of the Ugandan army and the damage caused to the wildlife”,1192 the DRC
relies on a single quote from one UNESCO report:
“During the civil war, Epulu was the front line
between the warring parties. The breakdown in law
and order during the 90s provided the opportunity
for thousands of itinerant miners, as well as elements
from the Ugandan army, to enter the forests of
eastern DRC to extract timber and mine for gold,
diamonds and coltan. Temporary mining camps
composed of miners, their families, hunters, itinerant
traders and other hangers-on appeared all over the
forest. The effects on wildlife were devastating as the
1190 DRCM, paras. 5.167, 5.171, 5.165, 5.169.
1191 Ibid., para. 5.125 et seq.
1192 Ibid., para. 5.128 (emphasis added) (Translated by Counsel, original in French: “Durant la
guerre civile, Epulu fut la ligne de front entre les parties belligérantes. L’état de non-droit que cela
a engendré a fourni l’occasion à des milliers de mineurs itinérants, tout comme à des éléments de
l’armée ougandaise, de pénétrer les forêts de l’est de la RDC pour l’exploitation du bois et des
mines d’or, de diamant et de coltan. Les campements miniers itinérants composés de leurs familles,
de commerçants itinérants et autres opportunistes sont apparus un peu partout dans la forêt. Les
effets sur la faune furent dévastateurs, les campements miniers devenant autant de centres pour le
commerce du gibier et de l’ivoire”.).
396
mining camps became centers for the commercial
bushmeat and ivory trades”.1193
8.127 On this basis, the DRC claims that Uganda is responsible for 90% of the
alleged losses in the Okapi Wildlife Reserve.1194 Even if the facts stated were true,
the quoted statement does not begin to support the DRC’s claims. Just because
unspecified “elements from the Ugandan army” were allegedly present at an
unknown time somewhere in the Okapi Wildlife Reserve, this does not mean that
Uganda can be deemed responsible for damages caused by various “warring
parties,” “the breakdown in law and order during the 90s,” “thousands of itinerant
miners,” “hunters,” “itinerant traders” and “other hangers-on.” This is especially
so, given that the DRC has offered no evidence, let alone convincing evidence,
linking any specific loss in the Okapi Wildlife Reserve, or any other Congolese
national park, to specific wrongful acts attributable to Uganda.
8.128 In fact, an article co-published by Jean Joseph Mapilanga, a Congolese
official from the ICCN, demonstrates that the UPDF contributed to preventing
smuggling in the Okapi Wildlife Reserve. Starting in 2000, the UPDF, APC and
the ICCN participated in a joint operation called “Operation Tango”. A joint 34-
man team comprised of UPDF and APC personnel confiscated weapons and
ammunition from smugglers,1195 and according to Mr Mapilanga, after five months
1193 UNESCO, Le patrimoine mondial dans le bassin du Congo, (emphasis by the DRC) Annex
5.16. DRCM, para. 5.128.
1194 DRCM, para. 5.169.
1195 L. Mubalama, J. J. Mapilanga, “Less Elephant Slaughter in the Okapi Faunal Reserve,
Democratic Republic of Congo, with Operation Tango”, Pachyderm, No. 31 (July- Dec. 2001), p.
39, Annex 80.
397
no new signs of poaching were found.1196 In addition, the UPDF trained newly
deployed park guards to deal with elephant poaching.1197
8.129 It follows from the foregoing that the DRC’s alleged direct losses to the
Congolese wildlife are baseless.
(b) The Claimed Indirect Injury to Congolese Wildlife Is Without Foundation
8.130 The DRC also claims indirect losses to the Congolese wildlife.1198 The DRC
measures these losses by attempting to calculate the number of first generation
offspring that would have been born to the 54,892 animals allegedly killed during
the conflict.1199 For the reasons explained above, the DRC has neither proved the
number of animals killed nor a causal link to specific wrongful actions attributable
to Uganda. Its claim for indirect losses must fail for this reason alone.
8.131 The claim fails for other reasons as well. It is, on its face, wildly speculative.
Any effort to calculate the number of offspring that would have been born in a
counter-factual scenario is, by definition, predicated on myriad unverifiable
assumptions and guesswork that afford the Court no basis to make any sort of legal
finding. Such harm is also too remote from the alleged direct injury to be a proper
subject of reparation under international law.
8.132 Moreover, even taken on its own terms, the DRC’s methodology for
calculating the number of offspring that would have been born is irredeemably
flawed. Citing to a single 1985 study on sex-ratios among animals, the DRC
1196 Ibid.
1197 Ibid.
1198 DRCM, para. 5.135.
1199 Ibid., paras. 5.135-5.136.
398
mechanically applies these sex-ratios to the allegedly killed animals to estimate the
numbers of females killed.1200 It then multiplies the number of allegedly killed
females of each species by the number of offspring they would ostensibly have
given birth to in the five years between 1998 and 2003.1201 The numbers of
offspring the DRC claims would have been born during this period is set out in
Table 4 of the DRC Memorial and reproduced (as translated) below:1202
TABLE 8.8: Numbers of Offspring the DRC Claims Would Have Been Born
Species/Parks Total
Female Male Young Total
ANTELOPES 18,765 8,235 187,650 214,650
ELEPHANTS 5,115 5,114 25,575 35,803
HIPPOPOTAMUSES 54 53 270 377
BUFFALOES 4,913 4,135 24,565 33,613
GIRAFFES 46 46 184 276
OKAPIS 500 500 2,000 3,000
RHINOCEROSES 11 10 22 43
WARTHOGS 2,514 1,458 201,120 205,092
BABOONS 48 48 96 192
MONGOOSES 31 46 1,860 1,937
CROCODILES 36 36 9,000 9,072
HARTEBEESTS 10 7 100 117
BUFFON’S KOBS 101 59 1,515 1,675
WATERBUCKS 589 258 2,945 3,792
BUSHBUCKS 89 65 890 1,044
CHIMPANZEES 1,200 800 6,000 8,000
1200 Ibid., para. 5.139.
1201 Ibid., paras. 5.139-5.140.
1202 Ibid., para. 5.141.
399
Putting these numbers together, the DRC claims that the number of first generation
offspring that would have been born is 463,792.
8.133 In Uganda’s view, the speculative and arbitrary nature of this claim speaks
for itself. It can also be illustrated by the way the DRC calculates the number of
unborn elephants.
8.134 As stated, the DRC asserts that the number of elephants killed in Garamba
National Park was 5,000. To this unproven number, the DRC applies a nominal
50/50 sex-ratio among elephants1203 to conclude that 2,500 of the 5,000 of
elephants allegedly killed were female.1204 An elephant, the DRC claims, gives
birth to “one baby per year”.1205 Multiplying 2,500 by five (one baby for each of
the five years of the conflict), the DRC says that the number of unborn elephants
in Garamba National Park alone is 12,500. This calculation is profoundly
misconceived on multiple levels.
8.135 The DRC has got its facts about elephant reproduction wrong. Elephants do
not give birth to one baby a year. In fact, elephants have the longest gestation period
of any mammal, close to two years.1206 Moreover, female elephants are mostly
fertile between 25 and 45 years of age and have inter-birth intervals of between
four to five years.1207 It is therefore biologically impossible that in five years 2,500
1203 Ibid, para. 5.139. See Table No. 2 “Sex-ratio and rate of reproduction of the species”.
1204 Ibid, para. 5.140. See Table No. 3 “Number of males and females for each species, per park”.
1205 Ibid, para. 5.139. See Table No. 2 “Sex-ratio and rate of reproduction of the species”.
1206 Sarah C. P. Williams, “The Elephant in the Womb”, Science, available at
http://www.sciencemag.org/news/2012/06/elephant-womb (19 June 2012), Annex 87.
1207 World Wildlife Fund, African elephants, available at
http://wwf.panda.org/what_we_do/endangered_species/elephants/african_el… (last accessed
29 Jan. 2018), Annex 107.
400
female elephants would have given birth to 12,500 baby elephants. (Aside from
resting on erroneous scientific premises, the DRC’s calculation also fails to account
for inevitable losses associated with natural selection or other factors affecting
mortality among baby elephants.)
8.136 Applying the same flawed approach to counting unborn elephants in the
other three nationals parks, the DRC speculatively asserts that the total number of
unborn elephants is 25,575.1208 This speculative loss leads to speculative
compensation. As discussed below, just for the alleged 25,575 “unborn” elephants,
the DRC claims damages in the staggering amount of roughly US$ 640 million.1209
8.137 There is no basis in fact or law to award the compensation the DRC seeks
for the alleged indirect harm to wildlife.
2. The DRC’s Valuation of Alleged Damages is Methodologically Flawed
8.138 The DRC’s failure to show exact losses suffered as a result of specific
wrongful acts attributable to Uganda makes it unnecessary to discuss their
valuation.1210 Uganda will nevertheless briefly discuss the manner in which the
DRC purports to place a value on alleged losses to Congolese wildlife for purposes
of highlighting the arbitrary nature of the claim.
1208 DRCM, para. 5.141. See Table No. 4 “Number of animals including their offspring, per park”
(12,500 unborn elephants in the Garamba Park, 3,075 in Virunga, 5,000 in Maiko, and 5,000 in
Okapi Reserve).
1209 As will be explained below, the DRC arbitrarily claims that the price of a baby elephant is US$
25,000.
1210 Diallo (2012), para. 14 (“If the existence of injury and causation is established, the Court will
then determine the valuation”.).
401
8.139 The DRC seeks to quantify compensation by assigning values to animals
that have no foundation in reliable, much less convincing, evidence.1211 Several
examples will suffice to illustrate these problems.
8.140 The DRC contends that the monetary value of an elephant, for example, is
US$ 50,000.1212 To support this contention, it refers only to the website of African
Sky Hunting, which offers a “10 day elephant hunting” package in South Africa for
US$ 37,602.1213 This online offer for an elephant safari in a different country says
nothing about the value of an elephant in the Congo during an armed conflict. The
DRC nevertheless takes the US$ 37,602 figure as a baseline and then increases it
to US$ 50,000. It attempts to justify this saying that Congolese elephants are more
threatened than elephants in South Africa.1214 Such speculation built atop
speculation cannot form a basis for placing a value on an injury in a court of law.
8.141 For chimpanzees and crocodiles, the DRC claims values of US$ 50,000 and
US$ 15,000, respectively.1215 These claims are based on “black market” prices for
an Indonesian orangutan (in the case of chimpanzees) and a Chinese alligator (in
1211 DRCM, 5.153. For the sake of completeness, it bears emphasis that the DRC suggested–but
ultimately abandoned–an “alternative” option that damages to wildlife could have been assessed
based on “the income [animals] may generate in connection with ecotourism”. DRCM, paras. 5.145-
151, 5.152. It is not surprising why the DRC abandoned this “valuation option”. Damages to the
DRC’s ecotourism industry are transparently speculative, especially given that the DRC had (and
has) no ecotourism infrastructure comparable to that of South Africa, Kenya, Tanzania and Zambia,
the countries that the DRC uses as the yardstick for valuating future profits from “ecotourism”. Nor
has the DRC adduced any evidence about its ecotourism before 1998, any impacted wildlife
locations that were utilised for ecotourism prior to the conflict, or specific damage caused to
ecotourism by Uganda.
1212 Ibid., para. 5.159(3).
1213 J. Okana, et al., Evaluation Des Dommages Causés à La Faune Congolaise Par L’Ouganda
entre 1998 et 2003 (Sept. 2016) citing to African Sky Hunting, Elephant, DRCM Annex 5.13.
1214 DRCM, para. 5.159(3).
1215 Ibid., paras. 5.159(2) and 5.159(7).
402
the case of crocodiles) illegally traded in Asia, which the DRC plucks from a 2008
report “International Illegal Trade in Wildlife: Threats and U.S. Policy”.1216 The
DRC’s attempted “valuation” is fundamentally flawed. The 2008 report, prepared
by the United States Congressional Research Service, was not intended to be a
“price list”. The purpose of the report was to discuss environmental and national
security threats to the United States posed by international wildlife smuggling, and
to suggest policy options to combat the international illegal trade in wildlife.1217 In
that context, by way of illustrating challenges facing the United States, the report
mentioned some “black market” prices of illegally traded species. It is regrettable
that the DRC relies on “black market” prices—for entirely different species, no
less—as a measure of compensation, thereby implicitly recognising the validity of
illegal trade in wildlife.1218
8.142 The DRC’s reliance on “black market” prices is also misplaced from a
purely economic perspective. Black market transactions are secret. The available
data are therefore not comprehensive and cannot reflect typical or average prices.
Black-market transactions are also highly idiosyncratic. It is therefore
inappropriate to apply monetary values of species individually sold on black
markets to species allegedly killed during an armed conflict. Finally, black-market
1216 Ibid., paras. 5.159(2) and 5.159(7). The DRC values a Congolese chimpanzee and crocodile at
US$ 50,000 and US$ 15,000, respectively.
1217 L. Wyler, P. Sheikh, International Trade in Wildlife: Threats and U.S. Policy, CRS Report for
Congress, RL34395 (22 Aug. 2008), p. 3, Annex 61.
1218 It also bears emphasis that the CRS’s report has no reference to Congolese chimpanzees or
crocodiles. The DRC’s extrapolation of the “black market” prices of an orangutan and Chinese
alligator to a Congolese chimpanzee and crocodile, respectively, is thus also wholly arbitrary. An
orangutan belongs to a different family of primates than a Congolese chimpanzee. A West African
crocodile and a Chinese alligator are completely different species. Moreover, orangutans and
Chinese alligators are also listed as critically endangered species by the International Union for
Conservation of Natura and Natural Resources. Moreover, contrary to the DRC’s assertion, a
chimpanzee and West African crocodile are not “species threatened with extinction.” DRCM, para.
5.155.
403
transactions do not represent replacement costs; surely the DRC does not intend to
replace the allegedly-killed animals by purchasing them on the black market.
8.143 To assess compensation for some other animals, the DRC picks and chooses
prices of individual animals, sometimes of different species, traded live at auctions
or online in third countries.1219 This valuation methodology is also seriously
flawed. The prices of animals traded in other countries are determined by factors
specific to those markets. They are thus inappropriate for assessing losses allegedly
sustained in the DRC during the conflict. It is also inappropriate to use the price of
an animal sold at auctions or online and apply that price to animals in a herd
because it overstates the value of an individual animal in a larger herd. Moreover,
auction and online prices of individual animals reflect significant costs associated
with capturing, breeding or raising an animal.1220 The DRC thus cannot, for
example, use the price of a South African antelope sold at an auction or online in
South Africa to assess the losses from the antelopes allegedly killed in the
Congo.1221
8.144 Another methodological problem in the DRC’s use of auction and online
prices is that it selects them from fragmentary and unreliable sources, and then
increases those poorly sourced prices by adding speculative assumptions. This
1219 DRCM, para. 5.155. The DRC applies this approach to make up prices for hippopotami, giraffes,
rhinoceroses, bushbucks, hartebeest, kobs, waterbucks, warthogs, baboons, and mongooses.
1220 For example, the sources cited by the DRC explain that capturing a hippo to sell at an auction
entails significant risks and monetary costs: the animal is not shot with tranquilisers, because it
could run away into water and get drown; so the animal is separated from its herd, starved for
many days, and then lured into a trap with food; then some time has to be allowed to bring the
animal into marketable shape before it can be sold at an auction. Dennis Farrell, Associated Press,
Billings Gazette, African animal auction draws 2,000, available at
http://billingsgazette.com/news/world/african-animal-auction-draws/arti…-
695919ec409b.html (22 June 2002), Annex 81.
1221 DRCM, para. 5.159(1).
404
invariably results in arbitrary prices. For example, the DRC claims that “the prices
for an ordinary giraffe range from US$ 1,300 to US$ 80,000”.1222 And since, it
says, Congolese giraffes are endangered, the price of one should be deemed the
same as that for “seriously threatened primates, i.e. US$ 50,000”.1223
8.145 The DRC’s assertion that the price of an ordinary giraffe can reach US$
80,000 is based on an unsupported observation taken from a single website
(www.exoticanimalsforsale.net) that purchasing a giraffe can require spending up
to US $80,000. This is hardly a convincing basis on which to base a compensation
claim in a court of law. Nor does the DRC offer evidence or explanation as to why
US$ 50,000 reflects the value of “seriously threatened primates”, or why that value
can simply be assumed to apply equally to an endangered giraffe.1224
1222 Ibid, para. 5.159(8) (emphasis added) (Translation by Counsel, original in French: “les prix pour
une girafe ordinaire varient de 1.300 à 80.000 dollars des Etats-Unis”).
1223 Ibid. (emphasis added) (Translation by Counsel, original in French: “des primates gravement
menacés, à savoir 50.000 dollars”.). 1224 The DRC extrapolates the same price to an okapi, stating that okapis and giraffes are “part of
the same family” (Translation by Counsel, original in French: “font partie de la même famille”.).
Since the claimed price has no foundation, it also cannot be used to evaluate losses to okapis.
DRCM, para. 5.159(9).
Yet another example of arbitrariness is the DRC’s valuation of rhinoceroses at DRCM, para.
5.159(10). The DRC claims that its “assessment took into account the price of live animals sold in
South Arica, which was US$ 28,000 on average” (Translation by Counsel, original in French:
“l’évaluation a eu égard au prix d’animaux vivants vendus en Afrique du Sud, qui était de 28.000
dollars des Etats-Unis en moyenne”.). This price was then allegedly “reassessed with regard to the
protection status of various populations of rhinoceroses” (Translation by Counsel, original in
French: “Ce prix a ensuite été réévalué au regard du statut de protection des différentes populations
de rhinocéros”.) and “the price used for the rhinoceroses of the DRC has therefore been set at US$
50,000” (Translation by Counsel, original in French: “Le prix retenu pour les rhinocéros de la RDC
a dès lors été fixé à 50.000 dollars des Etats-Unis”.). However, the DRC mentions no source that
was used to determine an average price of rhinos sold in South Africa. Nor does the DRC explain
what criteria it applied to reassess the average price and increase it to US$ 50,000.
The DRC also has offered no evidence showing that the price for a warthog is US$ 5,055 or that
the “average internet” price of a baboon is US$ 2,000, or why the “average internet” price of a
baboon should be the same for a mongoose, given that these are wholly different species. DRCM,
para. 5.159(5)-5.159(6).
405
8.146 The speculative and arbitrary nature of the prices the DRC assigns to
animals manifests itself in still other respects as well. For example, as stated, the
DRC claims compensation not only for animals allegedly killed but also for their
unborn first-generation offspring. This leads to double-counting because ordinarily
the value of an animal captures its ability to produce offspring.
8.147 The double-recovery is even more alarming in light of how arbitrarily the
DRC assigns values to unborn offspring. The DRC claims without support, for
instance, that the price of one unborn elephant is US$ 25,000 (one-half of the
claimed price for an adult elephant, which itself is unfounded, as shown above).1225
Multiplying that speculative price by a no-less-speculative number of unborn
elephants, the DRC thus claims US$ 639,375,000 in damages just for unborn
elephants.1226
8.148 For other baby animals, the DRC sometimes assigns the same price as for
adult animals. For example, the DRC claims, again without support, that the price
for a baby warthog should be the same as for an adult warthog: US$ 5,055.1227 Just
for the first generation of unborn warthogs in Garamba Park alone, the DRC claims
losses that total more than US$ 1 billion.1228
1225 See supra para. 8.139.
1226 With respect to elephants, the DRC actually engages in triple-recovery. In addition to claiming
losses for allegedly killed adult elephants, assessed at US$ 511,400,000, and unborn baby elephant,
assessed at US$ 639,375,000, the DRC also claims losses for ivory from all adult elephant, assessed
at US$ 664,820,000 based on “black market” prices (1,022,800 kg of ivory x US$ 650/kg). DRCM,
paras. 5.161, 5.166, 5.169, and 5.170 (valuation tables).
The DRC seeks the same triple-recovery with respect to rhinos: US$ 1,050,000 for allegedly killed
adult animals; US$ 550,000 for allegedly unborn baby rhinos; and US$ 787,500 for horns allegedly
taken from adult animals. See DRCM, valuation table at paras. 5.166.
1227 DRCM, para. 5.159(5).
1228 Ibid., para. 5.166.
406
8.149 The DRC’s valuation of its claimed losses to Congolese wildlife is thus not
only methodologically flawed; it is also speculative and leads to impermissible
double-recovery.
*
8.150 Because the DRC has failed to prove, through convincing evidence
showing with a high level of certainty, that Uganda’s specific wrongful acts directly
caused injury to the Congolese wildlife, there is no basis for the award of
compensation for this claim.
C. DEFORESTATION
8.151 The DRC seeks US$ 100 million in compensation for deforestation
allegedly caused by Uganda’s exploitation and export of Congolese timber.1229 The
claimed amount, according to the DRC, covers “the commercial value of the timber
and the various taxes that would have been collected on it, and the injury to
biodiversity and the habitat of the animal species.”1230
8.152 The Court made no specific findings in the 2005 Judgment that Uganda
caused deforestation by exploiting and exporting the Congolese timber.1231 It is
therefore unlikely that the Court’s general legal findings concerning natural
1229 Ibid., paras. 5.173, 5.190.
1230 Ibid., para. 5.184 (Translation by Counsel, original in French: “la valeur commerciale du bois
et les diverses taxes qui auraient dû être perçues sur celui-ci, mais aussi l’atteinte à la biodiversité
et à l’habitat des espèces animales”.). 1231 It also bears emphasis that the documents on which the Court relied to reach its general
conclusion on illegal exploitation of natural resources did not link Uganda to deforestation or
exploitation and export of the Congolese timber.
407
resources covered the exploitation of timber. As such, this claim should be denied
as beyond the scope of the 2005 Judgment.
8.153 Even if the 2005 Judgment did encompass unlawful exploitation by Uganda
in the form of deforestation, the amount claimed under this head of damages (US$
100,000,000) appears to come out of the ether. It is nowhere to be found in the
materials the DRC submits to the Court. Nor does the DRC Memorial explain how
it arrived at this number. There appears to be only one plausible explanation.
Despite the professed “carefulness that has to be observed in a legal proceeding”,
the DRC simply rounded up the number from US$ 94,888,800 (the amount claimed
for the alleged illegal exports by the company DARA-Forest), because that is the
only amount expressly stated in the DRC’s assessment of its alleged damages from
deforestation.1232 On its face, the claim for US$ 100,000,000 thus fails for lack of
proof.
8.154 Assuming that the DRC’s claim is really in the amount of US$ 94,888,800,
the claim is based entirely on the speculation that Uganda is responsible for the
unlawful exploitation of 216,000 m3 of Congolese timber. That claim is based on
an allegation that a putative “Ugandan-Thai” logging company, the aforementioned
DARA-Forest, was illegally exporting 48,000 m3 of timber a year for four and half
years (4.5 x 48,000 m3 = 216,000 m3). Yet, as discussed below, the evidence the
DRC offers is flawed, uncorroborated and unconvincing. The valuation of this
unproven harm the DRC advances is equally problematic.
1232 DRCM, para. 5.187.
408
1. The DRC’s Has Failed to Prove Any Specific Acts Attributable to Uganda
Resulting in Deforestation in the DRC
8.155 Assuming arguendo that the Court’s 2005 Judgment encompasses unlawful
exploitation by Uganda in the form of deforestation in the DRC, it remains
incumbent on the DRC at this phase to come forward with convincing evidence
showing with a high level of certainty the specific actions attributable to Uganda
that took the form of exploitation of forests, and the causal connection between
those actions and any harm to the DRC. The DRC Memorial does not make the
required showing.
8.156 The DRC’s claim is founded entirely on the DARA-Forest “Case study”
contained in the UN Panel’s first report.1233 There, it was alleged that a “Ugandan-
Thai forest company DARA-Forest”1234 illegally exploited Congolese timber for
export to Uganda.1235 It was also alleged that:
“On the basis of eyewitness accounts, satellite
images, key actors’ acknowledgements and the
Panel’s own investigation, there is sufficient
evidence to prove that timber extraction is directly
related to the Ugandan presence in Orientale
Province. This has reached alarming proportions and
Ugandans (civilians, soldiers, and companies) are
extensively involved in these activities. … In May of
2000, the RCDML [sic] attributed a concession of
100,000 hectares to DARA-Forest. Since September
1233 U.N. Panel of Experts, first report of 12 April 2001, paras. 47-54, Annex 11; DRCM, paras.
5.174-5.175.
1234 Ibid., para. 47, Annex 11.
1235 Ibid., para. 47-49.
409
1998, overall DARA-Forest has been exporting
approximately 48,000 m3 of timber per year”.1236
8.157 Using these allegations as a jumping off point, the DRC speculates that “if
we consider that the illegal exports of DARA-Forest continued for four and a half
years, with the annual volume of 48,000 m3,” Uganda should be responsible for
unlawful exploitation of 216,000 m3 of Congolese timber.1237
8.158 Each and every element of the claimed injury is flawed. As a threshold
matter, the entire claim rests on a single, shaky foundation—the DARA-Forest
“Case Study” set forth in the UN Panel’s much-criticised first report. This case
study was investigated “intensively” by the Porter Commission.1238 The result of
those investigations are detailed in the Porter Commission’s Report, which the
Court consistently cited as providing reliable evidence in the 2005 Judgment.1239
In that Report, the Porter Commission denounced the DARA-Forest case study as
fatally flawed:
“From the evidence, this Commission has come to
the conclusion that the investigation by the original
Panel of Dara Forêt was fundamentally flawed and
[the Commission] is unable to find support for any
single allegation made in this so-called Case
Study.”1240
1236 DRCM, para. 5.175 citing to the U.N. Panel of Experts, first report of 12 April 2001, para. 54,
Annex 11.
1237 Ibid., para. 5.187 (Translation by Counsel, original in French: “Si l’on considère que les
exportations illicites de DARA-Forest se sont poursuivies pendant 4 ans et demi, au volume annuel
de 48.000 m3”.).
1238 Porter Commission, Final Report, p. 72, Annex 52.
1239 Armed Activities (2005), paras. 61, 78, 237.
1240 Porter Commission, Final Report, p. 62, Annex 52.
410
8.159 Starting with the general allegation that Uganda exploited and exported
Congolese timber, the Porter Commission found it unproven:
“There is no evidence before this Commission that
Uganda as a country or as a Government harvests
timber in the Democratic Republic of Congo. This
Commission doubts that the allegation in the Report
is correct. Timber does come across the border as an
import, and there is no doubt that timber is also
smuggled through the porous borders. Such
documentation as this Commission has seen
indicates that timber cut in the Democratic Republic
of Congo is dutiable there on export, and that such
duties are levied by the rebel authorities and
paid”.1241
8.160 Turning to allegations that timber exploitation was directly related to the
Ugandan presence in Orientale Province and that Ugandan soldiers were involved
in those activities, the Porter Commission also found they lacked proof. The
Commission explained that “the UPDF presence in Orientale Province” only
“provided the security and access to overseas markets denied to the Congolese for
so long.”1242 Indeed, neither the UN Panel nor the DRC has offered any evidence
linking the UPDF or individual soldiers to exploitation of timber.
8.161 It is true, as the Porter Commission observed, that “there [were] Ugandans
who [went] over to the Congo and [bought] trees by negotiating with individual
Congolese permit holders or Chiefs, and import[ed] the timber once cut to
Uganda.”1243 But “this cross-border trade”, the Commission explained, “has been
1241 Ibid., p. 55 (emphasis added).
1242 Ibid., pp. 61-62 (emphasis added).
1243 Ibid., p. 56.
411
carried on throughout living memory,”1244 and the conduct of private individuals
engaged in commercial activities cannot be attributed to Uganda.
8.162 Finally, as regards the specific allegation that DARA-Forest was a
“Ugandan-Thai” company that annually exported approximately 48,000 m3 of
timber, the Porter Commission refuted it as wholly unfounded:
“This Commission is extremely concerned at the
approach of the original Panel to this subject.
Nowhere in the whole of this [allegation] is the
reliability of sources quoted, but, considering the
emphasis put on these alleged events, the original
Panel must have come to the conclusion that it was
safe to rely on its undisclosed and apparently unevaluated
sources. Yet the perception of those
sources, and that of the original Panel, was quite
clearly wrong. A short interview with Mr Kotiram [a
key witness related to the operations of DARAForest]
and his associates would have established the
truth, but he was never approached, according to his
evidence. This problem casts doubt on the original
Panel’s collection and reliance upon information
given to it, not only in respect of Dara Forêt, but
throughout the Report, given the emphasis placed
upon this so-called Case Study.”1245
8.163 In addition to being refuted by the Porter Commission, the allegation about
the illegal exploitation and export of the Congolese timber by a putative “Ugandan-
Thai” company was subsequently retracted by the UN Panel itself, after it “[took]
a closer look at the legal status of DARA-Forest” and its operation in the DRC.1246
The UN Panel’s revised position on this matter is set out in the Addendum to the
1244 Ibid., p. 58.
1245 Porter Commission, Final Report, p. 62, Annex 52.
1246 U.N. Security Council, U.N. Panel of Experts, Addendum to the first report of 12 April 2001,
para. 72, Annex 13.
412
report of 12 April 2001, which the DRC attaches as Annex 1.8 to its Memorial and
quotes extensively in the chapter concerning damages to plant life.1247 Yet the DRC
somehow overlooks the fact that the passages it quotes from the Addendum support
four important conclusions that are fatal to the DRC’s arguments:
1247 DRCM, para. 5.176:
“In fact, the civil servants appointed by the Government of Kinshasa are still fulfilling
duties such as that of customs officer and tax collector in the regions held by the rebels.
However, the taxes are not received by the Government of Kinshasa and are diverted by
the rebels for their own use. This situation is acknowledged by the Congolese Government,
which, in September of 2001, offered to pay 37 months of arrears in pay for these civil
servants. The Government of Kinshasa also seems to have acknowledged the activities of
commercial entities that operate in the regions in the hands of the rebels. One can cite,
among other examples, the German company Somikivu, which operates in the east of the
Democratic Republic of the Congo, but continues to pay taxes to the rebels and maintains
an office in Kinshasa. Questioned on the legal status of the commercial entities that operate
in the territories controlled or occupied by the rebels, the Congolese Minister of Justice
told the Group of Experts at a meeting held in September of 2001 that none of the
concessions had been revoked up until then, and that an assessment would be made on a
case-by-case basis when the Government would resume control of the regions in which
these entities were operating.
In order to have proof of this, the Group of Experts examined more closely the legal status
of DARA-Forest, a Thai company operating in the province of North Kivu. DARA-Forest
is a logging company registered in the Congo that belongs to five shareholders. The
principal among them, Royal Star Holdings, belongs in part to the Managing Director of
DARA-Forest, John Kortiram, as well as three other Congolese shareholders. In March
1998, DARA-Forest was registered in Kinshasa as a Congolese company, after which work
began in preparation for the construction of a sawmill in Mangina, in the province of North
Kivu. In June 1998, DARA-Forest was granted a forest concession of 35,000 hectares by
the provincial authority of North Kivu, which grants concessions to companies after their
registration with the central government. The same authority also granted DARA-Forest
an operating license to buy timber from local loggers and to export it. Its exports, headed
for the United States and China, began at the beginning of 1999, a few months after the
beginning of the war.
DARA-Forest, which adhered to the all the regulations in force, currently pays its taxes to
the same bank as before the region was taken over by the rebels. It also deals with the same
civil servants of customs when it exports its products and imports production equipment.
The Group of Experts also learned that the Congolese authorities of North Kivu carry out
a verification every two months to ensure that DARA-Forest complies with the terms and
conditions of the licenses that have been granted to it. Furthermore, on September 12,
2001, the Minister of Justice in Kinshasa granted DARA-Forest a certificate of registration,
which seems to indicate clearly that the Government of the DRC acknowledges the
company and accepts that it is operating in the zones held by the rebels”.
413
 First, DARA-Forest was not a “Ugandan-Thai” company and did not
have Ugandans, whether officials or private citizens, among its
shareholders or in its management. The Addendum explains that
DARA-Forest was “a Thai-owned [logging] company operating in
North Kivu Province” and it was registered in the Congo.1248 The “main
shareholder” of the company was Royal Star Holdings which was
“partly owned by the managing director of DARA-Forest, John
Kotiram”,1249 a Thai national.1250 In addition to Mr Kotiram, “there are
three Congolese shareholders”.1251
 Second, DARA-Forest harvested timber pursuant to concessions
granted by the Congolese authorities and all of its lumber was exported
to countries other than Uganda. The Addendum states: “In June 1998,
DARA-Forest was granted a 35,000-hectar logging concession from the
North Kivu Provincial Authority, which grants these concessions
following registration with the central Government. DARA-Forest also
acquired an exploitation licence from the same authority to buy and
export from local loggers. Its exports, which were to the United States
and China, started early in 1999, months after the beginning of the
war”.1252
 Third, after obtaining concessions in June 1998, DARA-Forest
continued to exploit timber during the conflict pursuant to additional
concessions granted by local Congolese authorities, which verified and
confirmed that the company complied with the terms of the
1248 DRCM, para. 5.176 (emphasis added); U.N. Panel of Experts, Addendum to the first report of
12 April 2001, para. 72, Annex 13.
1249 DRCM, para. 5.176 (emphasis added); U.N. Panel of Experts, Addendum to the first report of
12 April 2001, para. 72, Annex 13.
1250 Porter Commission, Final Report, pp. 56-58, Annex 52.
1251 DRCM, para. 5.176; U.N. Panel of Experts, Addendum to the first report of 12 April 2001, para.
72, Annex 13.
1252 DRCM, para. 5.176 (emphasis added); U.N. Panel of Experts, Addendum to the first report of
12 April 2001, paras. 71-73, Annex 13.
414
concessions. Moreover, the DRC central government granted the
company a certificate of registration and accepted the company’s
operation in the zones held by rebels. The Addendum explains:
“DARA-Forest, which the Panel has found to have complied with all
the regulations in effect, currently pays its taxes at the same bank as it
did before the area came under rebel control. It also deals with the same
customs officials as it did before the rebels took control of the area when
it exports its products and imports production equipment… [A]
bimonthly check is conducted by the local Congolese authorities of
North Kivu to ensure that DARA-Forest is complying with the terms of
licenses granted to it. Furthermore, DARA-Forest was granted on 12
September 2001 a certificate of registration from the Minister of Justice
in Kinshasa. This would appear to be a clear sign of recognition of the
company and acceptance of its work in the rebel-held areas by the
Government of the Democratic Republic of the Congo”.1253
 Fourth, the authors of the Addendum provided no support for the earlier
allegations from the DARA-Forest “Case Study” that the volume of
DARA-Forest’s export in 1998-2001 was 48,000 m3/year or that the
company continued to export timber at this volume for another 2.5
years.1254
8.164 The DRC’s own evidence thus refutes the DRC’s claim that Uganda
unlawfully exploited 216,000 m3 of Congolese timber.
8.165 The striking aspect of this claim is not just that it lacks any foundation, or
that the DRC erroneously sought to use a non-existant “Ugandan-Thai” logging
company as a proxy for proving attribution and proximate cause, or that the DRC
1253 DRCM, para. 5.176 (emphasis added); U.N. Panel of Experts, Addendum to the first report of
12 April 2001, paras. 71-73, Annex 13.
1254 See U.N. Security Council, U.N. Panel of Experts, Addendum to the first report of 12 April
2001 paras. 71-74, Annex 13.
415
took the unproven number of 48,000 m3 as the actual annual export of timber, or
even that the DRC assumed that this unproven export volume lasted for four and a
half years.1255 What is truly striking is that the DRC presented this claim to the
Court based on allegations it knew were erroneous, refuted and retracted.
8.166 Although the DRC does not really discuss it when stating its deforestation
claim, the DRC Memorial also includes as an annex a scientific study prepared in
May 2015 by the Inventory and Forest Management Directorate at the DRC
Ministry of Environment and Sustainable Development.1256 The DRC Memorial
limits itself to the following vague assertion:
“[This] scientific study showed that the massive
deforestation in the eastern portion of the country is
the most marked in the zones where the Ugandan
armed forces operated. With regard to this report, the
losses caused by the unlawful acts of Uganda
measure in the several hundred thousands of
hectares and several billions of dollars. The DRC
reserves the right to supplement its claim with
regard to this in the course of proceedings.”1257
8.167 This study is apparently a working paper (“document de travail”), the sole
purpose of which was to compare the areas of the DRC covered with forest between
1255 See DRCM, para. 5.187.
1256 Direction des Inventaires et Aménagement Forestiers & Ministère d’Environnement et
Développement Durable, Protocole Méthodologique de l’Evaluation du Couvert Forestier National
de Référence en République Démocratique du Congo (May 2015), DRCM Annex 5.20.
1257 DRCM, para. 5.188 (emphasis added) (Translation by Counsel, original in French: “une étude
scientifique a fait apparaître que la déforestation massive à l’est du pays est la plus marquée dans
les zones où ont opéré les forces armées ougandaises. Au regard de ce constat, les pertes causées
par les faits illicites de l’Ouganda se chiffrent en plusieurs centaines de milliers d’hectares et
plusieurs milliards de dollars. La RDC se réserve le droit de compléter sa demande à cet égard en
cours d’instance”.).
416
1990 and 2010.1258 The authors of the working paper were not tasked with looking
into or establishing causes that could explain the changes in the forest canopy in
Congolese territory.1259 The working paper mentions no fact or evidence showing
any specific injury caused by wrongful conduct attributable to Uganda. Nor does
this working paper provide any assessments or evaluation of the amount of timber
exploited between 1990 and 2010. There is therefore no basis for the DRC’s broad
assertion that the working paper shows that “the losses caused by the unlawful acts
of Uganda number in the several hundred thousands of hectares and several billions
of dollars.”1260
8.168 Still another very basic reason the DRC also cannot credibly rely on this
working paper is that the period it covers (from 1990 to 2010) substantially exceeds
the ratione temporis scope of the 2005 Judgment, wherein the Court’s findings that
Uganda had engaged in internationally wrongful conduct was expressly limited to
the period between August 1998 and June 2003.
8.169 Accordingly, the DRC has not presented convincing evidence showing any
specific action attributable to Uganda in the form of the exploitation of timber
resources that resulted in harm to the DRC.
1258 Direction des Inventaires et Aménagement Forestiers & Ministère d’Environnement et
Développement Durable, Protocole Méthodologique de l’Evaluation du Couvert Forestier National
de Référence en République Démocratique du Congo (May 2015), p. 6, DRCM Annex 5.20.
1259 Ibid.
1260 DRCM, para. 5.188 (emphasis added) (Translated by Counsel, original in French: “les pertes
causées par les faits illicites de l’Ouganda se chiffrent en plusieurs centaines de milliers d’hectares
et plusieurs milliards de dollars.”).
417
2. The DRC’s Valuation of Its Alleged Damages Is Methodologically Flawed
8.170 The DRC’s failure to show any specific action attributable to Uganda
resulting in harm to the DRC eliminates the need to address in detail the DRC’s
flawed approach to valuation for its unproven injury. As the Court held in Diallo,
it is only if the existence of specific injury and direct causal link is established that
valuation is warranted.1261 Uganda will therefore only briefly address the DRC’s
valuation to underscore additional speculative elements of this wholly arbitrary
claim.
8.171 The DRC’s effort to place a value on the injury it alleges is set out in one
paragraph:
“If we estimate that the illegal exports of DARAForest
continued for four and a half years, with an
annual volume of 48,000 m3, these exports represent
in total a market value of USD 94,888,800 (48,000 x
4.5 x 439.30) (ninety-four million, eight hundred
eighty-eight thousand, eight hundred dollars).”1262
8.172 For the reasons explained above, there is no credible basis to conclude that
there was exploitation of 48,000 m3 of timber for 4.5 years. Equally without
foundation is the third element in the DRC’s flawed calculation formula: the
alleged average commercial value of timber (US$ 439.30 m3). Any loss to the DRC
is not the commercial value of timber but rather the DRC’s loss of concession
1261 Diallo (2012), para. 14.
1262 DRCM, para. 5.187 (Translation by Counsel, original in French: “Si l’on considère que les
exportations illicites de DARA-Forest se sont poursuivies pendant 4 ans et demi, au volume annuel
de 48.000 m3, ces exportations représentent au total une valeur marchande de (48.000 x 4.5 x
439,30) = 94.888.800 dollars des Etats-Unis (quatre vingt-quatorze millions huit cent quatre-vingthuit
mille huit cent dollars)”.).
418
payments for, and/or loss of taxes on, the exploitation of such timber. The DRC
makes no effort to quantify such losses.
8.173 Had the DRC attempted to determine lost concession payments and taxes
from DARA-Forest’s operations (which, again, are not attributable to Uganda), it
would have determined that no compensation was due. The DRC’s own evidence
shows that DARA-Forest “adhered to [] all the regulations in force,” “compli[ed]
with the terms and conditions of the licenses”, “paid its taxes to the same bank as
before the region was taken over by the rebels,” and “the Government of the DRC
acknowledge[d] the company and accept[ed] that it is operating in the zones held
by the rebels.”1263 As a result, there is no basis for the DRC to claim even the loss
of taxes.
8.174 Moreover, even if the price of wood exports were relevant to this analysis
(quod non), the DRC’s claim that the average price of wood exported from the
Congo between 1998 and 2003 was US$ 439.30/m3 is unsupported by reliable
evidence. To support this assertion, the DRC presents a table at paragraph 5.186 of
its Memorial, which appears to be based on data taken from the website of the
International Tropical Timber Organization (“ITTO”).1264 However, the table lists
only prices for the 1998-2001 period. It has no data for 2002 and 2003. Without
such evidence, the DRC cannot credibly claim that the average price of exportation
of Congolese wood for the period of 1998-2003 was US$ 439.30. In fact, Uganda
examined ITTO’s data for missing years and found that the prices for those years
1263 DRCM, para. 5.176 (emphasis added) citing to U.N. Panel of Experts, Addendum to the first
report of 12 April 2001, paras. 71-73, DRCM Annex 1.8.
1264 DRCM, para. 5.186. See International Tropical Timber Organization, Biennial Review
Statistics, available at http://www.itto.int/annual_review_output/?mode=searchdata (last accessed
29 Jan. 2018). Annex 108.
419
bring the average price for 1998-2003 down to US$ 428.86.1265 This difference
may appear to be small, but it has a large effect on the overall calculation. It reduces
the claimed amount by more than US$ 2 million (to US$ 92,648,400).
8.175 The difference of nearly US$ 2 million is perhaps trivial to the DRC in the
context of its multi-billion-dollar claim. Yet miscalculated millions balloon into
billions.
8.176 Because the DRC has failed to prove, through convincing evidence
showing with a high level of certainty that Uganda wrongfully exploited Congolese
timber, resulting in harm to the DRC, there is no basis for the award of
compensation.
*
8.177 As was the case with the other heads of damages it seeks, the DRC has
eschewed any effort at proving by traditional means its claims concerning the
unlawful exploitation of natural resources. It has instead developed a series of
unsustainable propositions, built upon unconvincing evidence or speculation, so as
to advance highly inflated claims, leaving the Court without any credible basis for
awarding the DRC the compensation its seeks.
1265 According to the ITTO, the prices of wood exported from the Congo for 2002 and 2003 were
367 and 448.99, respectively. See International Tropical Timber Organization, Biennial Review
Statistics, available at http://www.itto.int/annual_review_output/?mode=searchdata (last accessed
29 Jan. 2018), Annex 108.
420
421
CHAPTER 9
MACROECONOMIC INJURY
9.1 In Chapter 6 of its Memorial, the DRC presents under the label
“macroeconomic injury” the single largest category of alleged injury for which it
seeks compensation. Under this heading, the DRC contends that it suffered US$
12,697,779,493.27 (i.e., roughly US$ 12.7 billion) in delayed economic
development as a result of the conflict. The DRC recognises, however, that this
alleged injury cannot seriously be attributed solely to Uganda. It therefore asserts
that Uganda is responsible for “only” 45% of the alleged damages; i.e., US$
5,714,000,775.1266 This single claim represents more than 40% of the total
compensation the DRC requests.
9.2 This Chapter will establish that none of the asserted amounts—whether
US$ 12.7 billion, US $5.7 billion or any other amount—can be awarded. The
DRC’s claim concerning its alleged “macroeconomic injury” is both legally and
economically flawed.
9.3 From a legal point of view, the DRC’s macroeconomic damage claim is not
compensable under international law. Section I of this chapter demonstrates that it
is at odds with international practice and case law. Section II shows that it is purely
speculative and incompatible with any notion of causality. Section III explains
why it cannot be justified under the rubric of lucrum cessans as the DRC Memorial
1266 At the negotiations stage, the DRC claimed it had suffered US $16 billion in macroeconomic
damages and, for the purposes of negotiations, it claimed from Uganda US$ 12 billion.
422
attempts to do. And Section IV demonstrates that the premise of this aspect of the
DRC’s claim is inconsistent with the 2005 Judgment.
9.4 Section V of this chapter shows that from a factual, economic point of view
the methodology the DRC uses to quantify its claim suffers from multiple fatal
flaws.
I. Macroeconomic Injury Claims Like the DRC’s Have
Uniformly Been Rejected in Practice and Case-Law
9.5 The DRC Memorial premises its claim for macroeconomic injury on the
contentions that conflict
“affects the path of the growth of the gross domestic
product (GDP), which measures the creation of
wealth produced by national and foreign economic
agents on a given national territory. It disrupts the
economic activity both in zones affected by military
operations and in those not affected by them, as the
economic actors present in the latter participate,
despite everything, in the war effort, and the scope
of their market is necessarily reduced.
…
[W]ar… disrupts all life in a country that loses all
attractiveness and competitiveness, chases away and
discourages present and potential investors, diverts
tourists and reduces final household consumption,
which is a significant component in the formation of
a country’s wealth. Furthermore, war leads to an
increase in imports of consumer goods, and therefore
a foreign currency shortage. This leads to or
aggravates a trade deficit as, in contrast with this
423
growth in imports, exports suffer a sharp decline due
to weak production”.1267
9.6 According to the DRC, Uganda is obligated to compensate it for this
economic disruption because, under the ILC Articles on State Responsibility, a
State responsible for an internationally wrongful act is required to “fully repair the
injury caused by” that act.1268 And since, according to the DRC, this economic
disruption would not have occurred but for Uganda’s intervention, Uganda is
obligated to pay the DRC compensation for it.
9.7 The DRC claim fails in the first instance because claims for macroeconomic
injury like the DRC’s have consistently, indeed uniformly, been rejected in practice
and in the jurisprudence. In this respect, it is telling that the DRC Memorial does
not cite even a single instance in which a decrease in the macroeconomic
performance of a State has been considered as a compensable head of damage
under international law.
9.8 Not even the Treaty of Versailles sought to impose responsibility on
Germany to pay for the general economic disruption accompanying World War I.
1267 DRCM, paras. 6.07, 6.09 (Translation by Counsel, original in French: “affecte ainsi la trajectoire
de la croissance du produit intérieur brut (PIB) qui mesure la création des richesses produites par
des agents économiques nationaux et étrangers sur un territoire national donné. Elle perturbe les
activités économiques tant dans les zones affectées par les opérations militaires que dans celles qui
ne sont pas touchées, car les acteurs économiques présents dans ces dernières participent malgré
tout à l’effort de guerre, et l’étendue de leur marché est forcément réduite” ; “La guerre …
désorganise toute la vie dans un pays qui perd toute attractivité et compétitivité, chasse et décourage
les investisseurs présents et potentiels, détourne les touristes et réduit la consommation finale des
ménages qui est une composante significative dans la formation de la richesse d’un pays. Par
ailleurs, la guerre entraîne un accroissement des importations en biens de consommation et donc la
pénurie des devises. Ceci entraîne ou aggrave le déficit de la balance commerciale car, en contraste
avec cet accroissement des importations, les exportations accusent une forte baisse en raison de la
faiblesse de la production.”).
1268 DRCM, para. 6.03 citing to ARSIWA, Art. 31(1)) (emphasis in original) (Translation by Counsel,
original in French: “de réparer intégralement le préjudice causé”.).
424
While actual damages to property and persons were computed to assess the amount
of reparations Germany owed, the overall economic disruption that accompanied
the war was not.1269 Likewise, after World War II, none of the unilateral or
conventional reparation schemes imposed on any of the Axis powers the duty to
compensate even a very small part of the huge macroeconomic impact of the war.
9.9 The two world wars had a profound and enduring effect on the economies
of the victorious nations. It therefore stands to reason that the victorious Powers
did not consider it appropriate or, indeed, even possible to impose responsibility
for their macroeconomic loss on the defeated States.
9.10 The practice of arbitral tribunals and claims commissions is to the same
effect. Even when macroeconomic impacts of wars are more limited in scope than
was the case during the two World Wars, compensatory claims related to
macroeconomic injury have consistently been rejected.
9.11 Following the establishment of the UNCC in the aftermath the 1990 to 1991
Iraq-Kuwait war, the UNCC Governing Council explicitly excluded, for lack of a
sufficiently direct causal link, all claims relating to losses incurred as a result of the
embargo imposed by the UN Security Council or, more generally, losses “due to
the chaotic economic situation following Iraq’s unlawful invasion and occupation
of Kuwait”.1270
1269 Pierre d’Argent, Les Réparations de guerre en droit international public (Oct. 2002), p. 88.
1270 See U.N. Security Council, Compensation for Business Losses Resulting from Iraq’s Unlawful
Invasion and Occupation of Kuwait where the Trade Embargo and Related Measures Were also a
Cause, U.N. Doc. S/AC.26/1992/15 (4 Jan. 1993), para. 5, Annex 4. See also ibid., paras. 3, 9; U.N.
Security Council, Decision taken by the Governing Council of the United Nations Compensation
Commission during the resumed Fourth Session, at the 23rd meeting, held on 6th March 1992, U.N.
Doc. S/AC.26/1992/9 (6 Mar. 1992), para. 6, Annex 3.
425
9.12 Likewise, the EECC easily rejected the claims of both States relating to
compensation for alleged macroeconomic damages resulting from “general
disruption of the civilian economy in wartime”1271 or “the generalized decline in
economic conditions”.1272 It held that a State’s international responsibility does not
extend “to all of the losses and disruptions accompanying an international
conflict”1273 because “[a] breach of the jus ad bellum… does not create liability for
all that comes after”1274 and breaches of the jus in bello do “not encompass
protection of the economy writ large”.1275
9.13 The EECC further observed that “[n]o system of legal liability can address
all of the economic consequences of war.”1276 International law imposes no
responsibility to compensate for “generalized economic and social consequences
of war.”1277 After reviewing the relevant international jurisprudence, the
Commission noted that no international tribunal has ever “found generalized
conditions of war-related economic disruption and decline to constitute
compensable elements of damage, even in the case of some types of injury bearing
a relatively close connection to illegal conduct”.1278
1271 Ethiopia’s Damages Claims (Final Award, 2009), para. 395.
1272 Eritrea’s Damages Claims (Final Award, 2009), para. 207.
1273 Ethiopia’s Damages Claims (Final Award, 2009), para. 289.
1274 Ibid.
1275 Eritrea’s Damages Claims (Final Award, 2009), para. 207.
1276 Ethiopia’s Damages Claims (Final Award, 2009), para. 395.
1277 Ibid., paras. 286, 395.
1278 Ibid., para. 286; Eritrea’s Damages Claims, para. 207; 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 Arbitration at Geneva (1873) (“Alabama Claims”), p. 545; United States v.
Germany, U.S.-Germany Mixed Claims Commission, Administrative Decision No. II, Award, 7
RIAA 1 (1 Nov.1923) (“Administrative Decision No. II”), pp. 23, 28 (The Commission established
426
9.14 The historical jurisprudence confirms the correctness of the EECC’s ruling
that compensation may not be awarded for the generalised economic consequences
of war. Before the US-Germany Mixed Claims Commission, for example, a
number of the claims pressed on behalf of American nationals were premised on
the argument “in substance that… under Article 231 of the Treaty of Versailles []
Germany is… ‘responsible for all damage or loss in consequence of the war, no
matter what act or whose act was the immediate cause of the injury’”.1279 The
Commission’s ruling was emphatic; it held:
“[T]he contention [is] rejected. … Where the loss is
far removed in causal sequence from the act
complained of, it is not competent for this tribunal to
seek to unravel a tangled network of causes and
effects, or follow, through a baffling labyrinth of
confused thought, numerous disconnected and
collateral chains, in order to link Germany with a
particular loss. … The argument, pressed to its
logical conclusion, would fix liability on Germany
for all increased living costs, increased income and
profits taxes, increased railroads fares and freights,
increased ocean freights, losses suffered through the
Russian Revolution—in a word, for all costs or
consequences of the war, direct or remote to the
extent that such costs were paid or losses suffered by
American nationals. … [I]t would follow that
Germany is liable for all losses of every nature, no
matter if the cause was entirely foreign to the war,
wheresoever and howsoever suffered by American
nationals since July 31, 1914. The mere statement of
the extreme lengths to which the interpretation we
by the United States and Germany in the aftermath of the WWI rejected the claims that Germany
was responsible “for all damage or loss in consequence of war”.).
1279 Administrative Decision No. II, p. 28.
427
are asked to adopt carries us demonstrates its
unsoundness”.1280
9.15 For exactly the same reasons, the DRC’s request for compensation for its
alleged macroeconomic injury should be rejected as a matter of law. Uganda has
no obligation to pay compensation under this alleged head of damages, regardless
of the amount.
II. The Macroeconomic Injury Is Speculative and Causally Remote
9.16 As the quotation from the US-Germany Mixed Claims Commission cited
just above indicates, the fundamental reason macroeconomic injury is not
compensable under international law is that such injury is inherently speculative
and the causal nexus between the breach of jus ad bellum and the macroeconomic
loss is “not sufficiently direct” 1281 and “too remote”.1282
9.17 The DRC’s macroeconomic claim as presented shows just how speculative
it is. By its own terms, the DRC’s claim is based on “the probability of [a]
correlation”1283 between “six variables” which result in a “model”.1284 That model
is then “estimate[d]… using two statistical methods (ordinary least squares (OLS)
method) and the generalised method of moments (GMM), which enable evaluating
the coefficients of the model in the form of elasticities, in order to measure the
1280 Ibid., pp. 28-30 (emphasis added).
1281 See U.N. Security Council, Compensation for Business Losses Resulting from Iraq’s Unlawful
Invasion and Occupation of Kuwait where the Trade Embargo and Related Measures Were also a
Cause, U.N. Doc. S/AC.26/1992/15 (4 Jan. 1993), paras. 3, 9, Annex 4.
1282 Ethiopia’s Damages Claims (Final Award, 2009), para. 402.
1283 DRCM, para. 6.21 (Translation by Counsel, original in French: “la probabilité de cette
corrélation”; “six variables”.).
1284 DRCM, para. 6.22 (Translation by Counsel, original in French: “modèle”.).
428
sensitivity of economic growth following a change in one of the exogenous
variables of the model.”1285
9.18 Uganda respectfully submits that no claim for compensation can be justified
by recourse to probabilities, variables, statistical methods and cryptic formulas. In
order to be compensable, a damage must be duly established and proven, not
speculatively derived from statistics and probabilities.
9.19 The Court will not fail to notice that the DRC Memorial very generally
refers to the alleged macroeconomic injury being “caused by the war of 1998 to
2003”,1286 without any further discussion. These general and unproved assertions
of causality are insufficient to satisfy the relevant legal requirements. Indeed, the
DRC effectively admits the point when it states, at paragraph 6.20, that the various
variables on which it relies “neither establish[] nor prove[] a causal link between
such [economic] impact and the conflict itself”.1287 This is why the DRC says, its
“correlation analysis is supplemented by an actual econometric study”.1288 Yet this
“econometric study” equally fails to address the issue of causality from any
meaningful legal perspective.
1285 DRCM, para. 6.22 (Translation by Counsel, original in French: “l’estimation du modèle au
moyen de deux méthodes statistiques (la méthode des moindres carrés ordinaires (MCO) et la
méthode du moment généralisé (GMM)) qui permettent d’évaluer les coefficients du modèle sous
la forme des élasticités en vue de mesurer la sensibilité de la croissance économique par suite de la
variation d’une des variables exogènes du modèle.”).
1286 DRCM, para. 6.11 (Translation by Counsel, original in French: “causé par la guerre de 1998 à
2003”).
1287 DRCM, para. 6.20 (Translation by Counsel, original in French: “n’établit ni ne prouve la
causalité entre un tel impact et le conflit lui-même.”).
1288 Ibid. (Translation by Counsel, original in French: “l’analyse de la corrélation est complétée par
l’étude économétrique proprement dite”.).
429
9.20 As recalled in Chapter 4, under the rules on the international responsibility
of States, the subject matter of the obligation to make reparation is limited to the
“injury resulting from and ascribable to the wrongful act” not “any and all
consequences flowing from an internationally wrongful act”.1289 The DRC’s
macroeconomic damages claim fails to establish the causal connection between
Uganda’s wrongful acts and the injury it claims.
III. Macroeconomic Injury Does Not Constitute Lucrum Cessans
9.21 The DRC argues that its alleged macroeconomic injury is compensable
because it “constitutes a loss of profit” (“manque à gagner”) in the nature of lucrum
cessans.1290 In fact, the notion of lucrum cessans is the only legal basis the DRC
offers (albeit very briefly) to justify its macroeconomic injury claim.
9.22 The DRC’s attempt to base its macroeconomic claim on the concept of
lucrum cessans reflects a deep conceptual confusion. The notion of lucrum cessans
or “loss of profits” within the meaning of Article 36, paragraph 2, of the Articles
on State Responsibility does not and cannot encompass the macroeconomic injury
the DRC claims. Indeed, the DRC’s claim is irreconcilable with the very concept
of loss of profits.
9.23 The ILC’s Commentary to the Articles on State Responsibility makes clear
that lost profits must relate to injured income-producing assets from which profits
can be legitimately expected with a degree of certainty.1291 In other words,
international law requires that the asset that failed to produce an expected profit
1289 ARSIWA, Art. 31, cmt. 9 (emphasis added).
1290 DRCM, paras. 6.03-6.04.
1291 ARSIWA, Art. 36, cmt. 27-34.
430
must have been specifically designed to make profit and been hurt by such
wrongful act (damnum emergens).
9.24 The economy of a nation is not such an asset. While States aspire to
economic growth, it is never guaranteed and depends on multitude factors.
Furthermore, it is not in the nature of each of the multiple assets that together
constitute the wealth of a nation to produce income—some do, many do not; only
taken as a whole do they reflect the wealth of a nation.
9.25 The DRC Memorial fails to identify even a single one of its assets that was
designed to produce profits and affected by Uganda’s intervention. Still less has it
computed such lost profits with any degree of certainty.
9.26 The conceptual confusion that lies at the heart of the DRC’s
macroeconomic claim is further revealed by the fact that the DRC claims
compensatory interest (at the rate of 6% from 28 September 2016) on the amount
claimed.1292 The ILC has indicated, however:
“If loss of profits are to be awarded, it is
inappropriate to award interest under article 38 on
the profit-earning capital over the same period of
time, simply because the capital sum cannot be
simultaneously earning interest and generating
profits. The essential aim is to avoid double recovery
while ensuring full reparation”.1293
9.27 By claiming compensatory interest on the amount of its alleged
macroeconomic injury, the DRC thus contradicts its own argument and reasoning,
1292 DRCM, paras. 7.61, 7.62, 7.89(b).
1293 ARSIWA, Art. 36, para. 33 (emphasis added).
431
and exposes the fallacy of its attempt to equate macroeconomic injury with lucrum
cessans.
IV. The DRC’s Macroeconomic Injury Claim Is Inconsistent with the 2005
Judgment
9.28 Uganda has elsewhere recalled that pursuant to paragraph 260 of the 2005
Judgment, the DRC must now “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”.1294 In other words, each of the DRC’s
claims must meet three cumulative conditions: (1) they must concern an “exact
injury” duly established; (2) such injury must result from “specific actions” of
Uganda; and (3) such actions must constitute breaches of international law duly
established by the Court for which Uganda was found responsible. The DRC’s
macroeconomic injury claim does not satisfy any of these three requirements:
 First, the macroeconomic injury claim fails to meet the “exact injury”
requirement because it relates to a multitude of economic factors that
the DRC itself describes as constituting a “more general” injury;
 Second, it disregards the requirement to show that the alleged injury is
the “result” of “specific actions” of Uganda because it fails to identify
any specific action for which Uganda bears international responsibility
that could have caused such general macroeconomic injury, and
because it fails to show the required causal nexus; and
 Third, the macroeconomic injury claim is explicitly premised on the
existence of an alleged “war of aggression” for which the Court never
found Uganda responsible.
1294 Armed Activities (2005), para. 260 (emphasis added).
432
A. THE MACROECONOMIC INJURY CLAIM FAILS TO MEET THE 2005 JUDGMENT’S “EXACT INJURY” REQUIREMENT
9.29 Chapter 6 of the DRC Memorial begins with the following sentence:
“Above and beyond the specific injuries that have
been described in the preceding sections, the
invasion of the DRC by Uganda has also caused
injuries that are more general.”1295
9.30 Thus, according to the DRC itself, its macroeconomic claim relates to
“injuries that are more general”, rather than injuries that are “specific”. By its own
admission then, the DRC cannot identify any specific or “exact injury” within the
meaning of paragraph 260 of the 2005 Judgment.
9.31 The DRC itself writes that its macroeconomic claim concerns a multitude
of economic factors: the “slowing, even a stoppage, of economic activity, in
addition to the destruction of the economic fabric”,1296 and also the alleged impact
of the war on “the gross domestic product (GDP), production in all sectors of
national economic life, the balance of current payments (due to the change in
balance of trade, withdrawals related to payments for arms imports and military
equipment), the level of tourism and services, debt, monetary reserves, public
finance, and gross investment.”1297
1295 DRCM, para. 6.01 (Translation by Counsel, original in French: “Au-delà des préjudices
spécifiques qui ont été décrits dans les chapitres précédents, l’invasion de la RDC par l’Ouganda a
aussi causé des préjudices plus généraux.”). 1296 DRCM, para. 6.02 (Translation by Counsel, original in French: “ralentissement considérable,
voire un arrêt, de l’activité économique, en plus de la destruction du tissu économique.”).
1297 DRCM, para. 6.06 (Translation by Counsel, original in French: “[le] produit intérieur brut (PIB),
la production dans tous les secteurs de la vie économique nationale, la balance des paiements
courants (en raison de la variation de la balance commerciale, des décaissements liés aux paiements
des importations d’armes et d’équipements militaires), le niveau de tourisme et des services,
l’endettement, les réserves monétaires, les finances publiques et l’investissement brut.”).
433
9.32 In other words, the DRC admits that its alleged macroeconomic injury
relates to a broad array of issues touching on the economic life of a nation; it is
about an alleged economic downturn in all sectors of the economy. This, by itself,
defeats the requirement of demonstrating and proving an “exact injury” suffered as
a result of the specific internationally wrongful actions of Uganda.
9.33 To meet the “exact injury” requirement set out by the Court, the DRC would
have to have proved and quantified the negative impact of specific wrongful actions
of Uganda on each of the economic factors it cites: the GDP, the production in
every specific sector, the balance of payments, tourism, services, debt, etc.—
assuming, that is, that those elements could constitute an interest duly protected
under international law (quod non). But the DRC Memorial does not do this.
Instead, the DRC claim mixes all those elements together in one global head of
damage labelled “macroeconomic injury”, without establishing that each of its
different constitutive elements is duly protected under international law.
9.34 The DRC argues, moreover, that
“the effects of armed conflicts … continue, even
when the events that caused them have ended. This
is what is called ‘hysteresis of armed conflicts,’
which includes, for example, post-traumatic and
physical disorders, permanent physical injuries,
bullet and shell impacts, displaced persons, refugees,
rape victims, child soldiers, etc.”1298
1298 DRCM, para. 6.27 (Translation by Counsel, original in French: “les effets des conflits armés…
se perpétuent dans le temps, quand bien même les évènements qui les ont causés disparaissent. C’est
ce qu’on appelle des ‘effets d’hystérèse des conflits armés’, qui comprennent par exemple les
troubles post-traumatiques et psychiques, les lésions corporelles permanentes, les impacts des balles
et obus, les personnes déplacées, refugiées et victimes des viols, les enfants enrôlés de force dans
les groupes armés, etc.”).
434
9.35 In others words, when the DRC Memorial does try to add elements of
specificity to its macroeconomic claim, it only reveals that the claim encompasses
heads of damage that are also claimed elsewhere in its Memorial (i.e., physical
injuries, rapes, displacements, child soldiers, etc.). The DRC thus effectively seeks
double recovery for elements of the damages it claims in other parts of its Memorial
under the guise of macroeconomic injury, which itself is not a compensable head
of damages under international law.
B. THE DRC’S MACROECONOMIC INJURY CLAIM DISREGARDS THE REQUIREMENT THAT IT MUST “RESULT” FROM “SPECIFIC ACTIONS” OF UGANDA
9.36 Nowhere in its Memorial does the DRC identify any “specific actions” of
Uganda deemed wrongful in the 2005 Judgment that caused, individually or
cumulatively, the macroeconomic injury it alleges. The DRC therefore fails also to
meet the second condition set out in the 2005 Judgment. Rather, as shown in
subsection (3) immediately below, the DRC bases its macroeconomic injury claim
on an alleged internationally wrongful act for which the Court never found Uganda
responsible.
9.37 Still further, the DRC’s macroeconomic claim entirely fails to meet the
proximate cause requirement detailed in Chapter 4 of this Counter-Memorial.
Indeed, as discussed above, it is precisely for lack of the requisite causal nexus that
all previous claims of the sort the DRC asserts have been rejected.1299
1299 See Chapter 4, Section II(B).
435
C. THE DRC’S MACROECONOMIC INJURY CLAIM IS PREMISED ON UGANDA BEING RESPONSIBLE FOR A “WAR OF AGGRESSION”, WHICH IT IS NOT
9.38 In making its “macroeconomic injury” claim, the DRC Memorial
repeatedly refers to what it terms the “war of aggression”1300 allegedly carried out
by Uganda and for which it ostensibly bears responsibility under the 2005
Judgment. The DRC no doubt intends the use of those words to impress the Court
in evaluating its staggeringly large macroeconomic claim. The DRC also explicitly
premises its macroeconomic claim on the existence of this supposed “war of
aggression”. The Memorial states:
“The effects of an armed aggression are not limited
to the battlefield alone. Use of large-scale force, such
as that to which the DRC fell victim between 1998
and 2003 on the part of Uganda, at the same time
causes a considerable slowing, even a stoppage, of
economic activity, in addition to the destruction of
the economic fabric. Over the course of a war of
aggression, a number of units of production that
support the economy and the growth of a State, are
shut down. When the aggressor begins pillaging and
destroying the units of production, when the
population—an important factor in production—has
to leave its living environment, it is obvious that the
circular flow of income of a State will experience
very serious disarray.1301
1300 DRCM, paras. 6.02, 6.20, 6.24, 6.31. See also para. 7.78 (Translation by Counsel, original in
French: “L’Ouganda a délibérément mené une guerre d’agression contre un de ses voisins”.).
1301 DRCM, para. 6.02 (emphasis added) (Translation by Counsel, original in French: “Les effets
d’une agression armée ne se limitent pas seulement au champ de bataille. Un recours à la force de
grande ampleur, comme celui dont a été victime la RDC entre 1998 et 2003 de la part de l’Ouganda,
provoque en même temps un ralentissement considérable, voire un arrêt, de l’activité économique,
en plus de la destruction du tissu économique. Au cours d’une guerre d’agression, nombre des unités
de production qui soutiennent l’économie et la croissance d’un Etat, sont mises à l’arrêt. Lorsque
l’agresseur se met à piller et à détruire les unités de production, lorsque la population – facteur
436
The macroeconomic injury resulting therefrom
constitutes a loss of income, which calls for
reparation.1302
…
This is why the correlation analysis is supplemented
by an actual econometric study, to assess the impact
on the Congolese economy of the war of aggression
carried out by Uganda. The loss of income endured
by the Congolese economy can thus be
calculated.1303
9.39 However, while the Court did indeed characterise the “unlawful military
intervention by Uganda” as a “grave violation” of Article 2(4) of the UN
Charter,1304 it is nowhere found that Uganda had waged a “war of aggression”
against the DRC. Indeed, the Court clearly refrained from making a finding of
“aggression” either in its reasoning or in the dispositif. The 2005 Judgment took
note of the fact that the DRC claims against Uganda “begin with what it [i.e., the
DRC] terms an aggression”.1305 Yet the Court declined to accept the DRC’s
characterisation and nowhere used the word “aggression” to qualify Uganda’s
conduct.
9.40 The DRC’s use of the words “war of aggression” in Chapter 6 of its
Memorial is therefore unjustified and inconsistent with the 2005 Judgment. Uganda
important de production – se trouve obligée de quitter son milieu de vie, il est évident que le circuit
économique d’un Etat va connaître de très sérieuses désorganisations.”).
1302 DRCM, para. 6.03 (emphasis added) (Translation by Counsel, original in French: “Le préjudice
macro-économique qui en résulte constitue un manque à gagner qui appelle réparation.”).
1303 DRCM, para. 6.20 (emphasis added) (Translation by Counsel, original in French: “C’est
pourquoi, l’analyse de la corrélation est complétée par l’étude économétrique proprement dite, pour
évaluer l’impact sur l’économie congolaise de la guerre d’agression menée par l’Ouganda. Le
manque à gagner enregistré par l’économie congolaise peut ainsi être calculé.”).
1304 Armed Activities (2005), para. 165.
1305 Ibid., para. 54.
437
considers the DRC’s use of the phrase to be inconsistent with the Court’s 2005
admonition to both Parties “that in the phase of the proceedings devoted to
reparation, neither Party may call in question such findings in the present Judgment
as have become res judicata”.1306
9.41 In any event, the critical point for present purposes is that the DRC
explicitly links its macroeconomic claim to a non-existent “war of aggression”, not
any “specific action” by Uganda. The Court should therefore reject it because, in
addition to all the other flaws discussed above, it is based on a legal premise that is
inconsistent with the 2005 Judgment.
V. The DRC Macroeconomic Injury Claim Is Economically
and Methodologically Flawed in Any Event
9.42 Even setting aside the lack of legal foundation, the DRC’s macroeconomic
claim fails for the additional reason that the DRC’s methodology is irreparably
flawed.
9.43 The DRC’s claim for macroeconomic injury relies on a study prepared by
Justin Okana N’siawi Lebun, a professor of economics at the University of
Kinshasa, and Gastonfils Lonzo Lubu, a doctoral candidate at the same university.
Their study in turn relies heavily on the writings of Professor Sir Paul Collier and
Dr Anke Hoeffler of Oxford University, who have published several studies on the
economic consequences and cost of civil wars. The DRC acknowledges this
reliance on Professor Collier and Dr Hoeffler in the text of its Memorial: “[T]he
econometric analysis [carried out by the DRC] was based on the model of P. Collier
1306 Ibid., para. 260 quoting to Nicaragua v. United States of America (Merits, 1986).
438
and A. Hoeffler. These two economists of the World Bank are specialised in the
modeling of the impacts of war on the performance of economies affected”.1307
9.44 Uganda asked Professor Collier and Dr Hoeffler to assess the manner in
which DRC’s experts used and applied their research. Professor Collier and Dr
Hoeffler agreed and prepared a brief report setting forth their views, which is
annexed as Annex 109 to this Counter-Memorial. As the Court will read, Professor
Collier and Dr Hoeffler roundly reject the analysis of the DRC’s experts in all
respects.
9.45 At the outset of their report, Professor Collier and Dr Hoeffler set forth their
summary assessment of the expert report presented by the DRC. They state that it
“is a misguided use of our approach, that the concept
on which the authors base their estimation is flawed,
and that their technical analysis is incorrect.
Consequently, in our view their results and
conclusions should be disregarded.”1308
9.46 Professor Collier and Dr Hoeffler detail the reasons for their criticism in
their report. The gravamen of their criticism relates to the way Professor Lebun and
Mr Lubu constructed the counterfactual on which their analysis is based. They
write:
“Their analysis is deeply flawed. We detail some of
the technical flaws in the following section, but the
1307 DRCM, para. 6.13 (Translation by Counsel, original in French: “l’analyse économétrique a été
basée sur le modèle de P. Collier et A. Hoeffler. Ces deux économistes de la Banque Mondiale sont
spécialisés dans la modélisation des impacts de la guerre sur la performance des économies
affectées.”).
1308 Professor Sir Paul Collier and Dr Anke Hoeffler, Oxford University, Assessment of the Impact
of the Ugandan Military Involvement in the Democratic Republic of the Congo (hereinafter “Collier
& Hoeffler Report”) (20 Oct. 2017), p. 1, Annex 109.
439
overall flaw is more fundamental. Specifically, they
calculate the losses by using a counterfactual of
positive GDP growth from 1998 onwards (Lebun
and Lubu, Graph 2, p 20). Given that the economy
of DRC had been in almost continual decline for the
30 years prior to 1998, no times series methodology
could plausibly generate such a counterfactual.
Indeed, the most plausible path based on any such
time series would have been a forecast of further
decline, which is indeed what actually happened for
the following three years.
Beginning in 2001, the economy started to recover.
Lebun and Lubu (2016:18) acknowledge this
turnaround but leave it unexplained. The most
plausible explanation for this turnaround is the onset
of the global commodity boom, or commodity super
cycle, which Lebun and Lubu fail to take properly
into account.”1309
9.47 According to Collier and Hoeffler: “The starting point of the analysis in
Lebun and Lubu (2016) is a presentation of the data and a theoretical model. As it
is common in the literature, they then test this model using statistical analysis.”1310
However, “[o]ne of the major problems with their implementation of this research
method is that they do not actually test the model they specify.” This defect is
further explained in the following terms:
“The authors start with a standard Solow growth
model which has been used in large-n studies to
examine African countries’ growth experience
(Hoeffler 2002). However, they then augment the
model in a non-standard way without discussing this
extension of the model (p.8). They then proceed to
estimate this extended model using data from the
DRC. They start off with an Ordinary Least Squares
1309 Ibid., p. 5.
1310 Ibid., p. 6.
440
(OLS) estimation which is not a suitable method for
estimating these time series models, primarily
because the error terms are serially correlated, and
not taking this correlation into account will produce
biased estimates. They do not explain this problem
with the OLS method, but do present estimations
based on the use of a Generalized Method of
Moments (GMM) estimator. They justify the use of
this method because “it makes it possible to evaluate
the model’s coefficient in the form of elasticities”.
This is factually incorrect. The logarithmic
transformation of the model makes it possible to
interpret the coefficients as elasticities. The GMM
estimation technique is used in growth regressions in
order to account for unobserved country effects and
to address endogeneity issues. GMM is also not a
time-series method and it is completely unclear how
the authors implemented this panel data estimation
method using data from only one country. The
authors then continue with parametric and nonparametric
validation (p.10). This part is very
confusing and given that the previous GMM
estimation cannot have produced sensible results,
we do not further comment on these validation
attempts. The coefficients from this unconvincing
analysis are then used to calculate the damages on
p.18. Given that the previous estimations are not
convincing, we do not trust these further
calculations.”1311
9.48 Collier and Hoeffler note still other methodological flaws:
 Lebun and Lubu “use estimation methods for largen
samples but only use data from one country, the
DRC.” This is problematic because “African data are
generally of poor quality (Jerven 2013) and that
many of the data points are estimates themselves”.
Therefore, “the quality of the data should receive
1311 Ibid., p. 7 (emphases added).
441
some discussion. However, the data quality receives
no debate.”1312
 “some of the text describing the methods used make
it very difficult for the reader to follow what the
authors have done and they do not cite other research
correctly.” Collier and Hoeffler “are aware that
African researchers often have restricted access to
recent publications, but the work cited by them is
well established and available through open access
sources by now. They quote old working papers
rather than the published versions in scientific
journals, suggesting that they did not check on
whether the research is published in a peer reviewed
journal.”1313
9.49 After recalling the dramatic and consistent decline of the Congolese
economy from the first years of the Mobutu regime—national income per capita
was US$ 972 in 1965 (expressed in 2010 constant dollars);1314 US$ 333 in 1997;
and US$ 271 in 2001—followed by the gradual recovery due to the “unprecedented
rise in global non-fuel commodity”,1315 Collier and Hoeffler
“postulate a simple counterfactual in which, in the
absence of the unauthorised Ugandan military
presence 1998-2001, this decline would have
continued at its previous long term rate, until the
onset of the global commodity super-cycle in 2001
began to lift the economy upwards. This
1312 Ibid., p. 6 (emphasis added).
1313 Ibid., p. 7 (emphasis added).
1314 The Court will not fail to note that, while Collier and Hoeffler report statistics taken from the
World Development Indicators in 2010 constant US$, the various figures assembled by the DRC
(notably at paragraph 6.18 of its Memorial) refer to several annual averages between 1960 and 2008,
but with no indication about the reference year used to express each amount in US$. However, the
value of one US dollar in 1980 is not the same as the value of one US dollar ten or twenty years
later. It is simply astonishing that nowhere in its Memorial does the DRC indicate which reference
year it uses when it presents amounts labelled in US dollars.
1315 Collier & Hoeffler Report, pp. 5-6, Annex 109.
442
straightforward counterfactual path of the economy
is shown by the downward sloping dashed line.
Using this counterfactual, there are no identifiable
economic costs associated with the military
intervention. Actual GDP always exceeds the
counterfactual GDP.”1316
9.50 Overall, Collier and Hoeffler conclude that “the estimate by Lebun and
Lubu (2016) are so seriously methodologically flawed that they cannot be taken
seriously and should be disregarded.”1317
9.51 In addition to the methodological flaws that Collier and Hoeffler identified
in the Lebun and Lubu report, the Court will note that the DRC’s macroeconomic
claim is expressly based on factual assumptions that do not remotely reflect the
realities of the DRC economy, even in peacetime. According to the DRC
Memorial:
“In peacetime, the companies of countries freely
move their products throughout the territory
according to the availability of the markets. In the
absence of war, economies of energy are developed,
as well as economies of scale, while markets
between firms are explored and used, thus favoring
inter-industry trade and intra-industry trade. The
movement of people, goods and services takes place
without constraints, and money circulates, in the
form of financial flows, across all the national
territory and within the entire national economy.”1318
1316 Ibid., p. 6. 1317 Ibid., p. 8. 1318 DRCM, para. 6.08 (Translation by Counsel, original in French: “En période de paix, les
entreprises du pays écoulent librement leurs productions sur l’ensemble du territoire selon la
disponibilité des débouchés. En l’absence de guerre, il se développe des économies d’énergies ainsi
que des économies d’échelles, tandis que sont explorés et exploités des débouchés entre firmes,
favorisant ainsi le commerce interbranches et le commerce intra-branches. La circulation des
personnes, des biens et des services s’opère sans entraves et l’argent circule, sous forme de flux
financiers, à travers tout le territoire national et au sein de l’ensemble de l’économie du pays.”).
443
9.52 This ideal description of a peacetime economy bears no semblance to the
situation in the DRC at any point in time, whether before, during or after the
conflict. The DRC’s vast territory is made up of impenetrable forests and, as
recalled in Chapter 2, its roads and transport infrastructure have always been
underdeveloped. Trade between regions is limited due to natural barriers, the huge
distances and the lack of infrastructure.1319 And corruption at all levels of
government1320 artificially increases transaction costs, limits investments and
gravely impairs the economy.
9.53 The DRC argument concerning its alleged macroeconomic damages is, in
short, based on a fiction that that does not correspond to the economic realities of
the DRC.
*
9.54 For all the above reasons, Uganda respectfully submits that the DRC’s
macroeconomic claim should be rejected in its entirety.
1319 For an historical account of the difficult and slow development of transport infrastructure in the
DRC. See notably David Van Reybrouck, Congo: The Epic History of a People (2015), Annex 89.
1320 See Marie Chêne, Transparency International, U4 Expert Answer: Overview of corruption and
anti-corruption in the Democratic Republic of Congo (DRC) (8 Oct. 2010).
444
445
CHAPTER 10
THE DRC IS NOT ENTITLED TO THE OTHER REPARATION IT
SEEKS
10.1 In addition to its claims for compensation relating to harm to people (which
are dealt with is in Chapters 5 and 6 of this Counter-Memorial), harm to property
(Chapter 7), harm to natural resources (Chapter 8) and harm in the form of
macroeconomic damages (Chapter 9), the DRC also requests that the Court order
post-judgment interest and certain additional forms of reparation. Specifically, it
requests:
(1) “[c]ompensatory interest… at the rate of 6% from and after the date
of submission of this [M]emorial”;
(2) “the sum of USD 125 million in satisfaction of all intangible harm
resulting from violations of international law enumerated by the
Court in its decision of December 19, 2005”;
(3) “as an element of satisfaction, [an order] to institute investigations
and criminal prosecutions against the officers and soldiers of the
UPDF implicated in the violations of international humanitarian law
or of international norms for protection of the rights of the
individual committed in Congolese territory between 1998 and
2003”;
(4) “in case of non-payment of the reparations granted by the Court at
the date of the ruling, default interest accruing on the principal sum
at the rate that the Court shall deem appropriate”; and
446
(5) “[compensation] for all legal expenses incurred by the [the DRC] in
this matter.”1321
10.2 Uganda has no objection to the Court issuing an order relating to postjudgment
interest. The DRC’s other requests for additional reparation are,
however, misguided, inappropriate and legally unsustainable. They should
therefore be rejected. The Court should deem its findings at the merits phase as
appropriate satisfaction for Uganda’s internationally wrongful acts.
I. The DRC Is Only Entitled to Simple Interest Calculated from the
Date of a Judgment Ordering Payment of Compensation
10.3 The DRC claims two different types of interest. First, in the event of nonpayment
of such compensation as the Court may order in its judgment at this
1321 DRCM, para. 7.89 (b-f) (Translation by Counsel, original in French:
“b. des intérêts compensatoires … à concurrence de 6%, et ce à
partir de la date du dépôt du présent mémoire;
c. …la somme de 125 millions de dollars des Etats-Unis au titre de
mesure de satisfaction pour l’ensemble des dommages immatériels
résultant des violations du droit international constatées par la Cour
dans son arrêt du
19 décembre 2005 ;
d. … au titre de mesures de satisfaction, … mettre en oeuvre des
enquêtes et des poursuites pénales à l’encontre des officiers et des
soldats de l’UPDF impliqués dans les violations du droit
international humanitaire ou des normes internationales de
protection des droits de la personne commises en territoire
congolais entre 1998 et 2003;
e. en cas de non-paiement de l’indemnité octroyée par la Cour à la
date du jugement, des intérêts moratoires courront sur la somme
principale au taux que la Cour jugera approprié de fixer ;
f. l’Ouganda est tenu de dédommager la RDC pour l’ensemble des
frais de justice exposés par cette dernière dans le cadre de la
présente affaire.”)
447
reparation phase, the DRC seeks simple interest at a rate that the Court shall deem
appropriate.
10.4 Should the Court order Uganda to pay compensation to the DRC, Uganda
accepts that it may also order that, if such compensation is not paid within a
reasonable period of time, interest shall accrue upon the amount owed from the
date of the Court’s judgment until such date as the compensation is paid.1322
Ordering such “post-judgment interest” or “default interest” would be consistent
with the prior practice of the Court, and with the procedural rules of other
international courts and tribunal applicable to inter-State proceedings.
10.5 At the same time, Uganda submits that what constitutes a “reasonable
period of time” for the payment of any compensation must turn on the magnitude
of the compensation; the larger the amount, the more time will be needed for the
State making the payment to secure and transfer the funds.
10.6 With regard to the annual rate of interest, the DRC Memorial defers to the
Court’s judgment, suggesting that the “default interest [would accrue] on the
principal sum at the rate that the Court shall deem appropriate”.1323 Uganda agrees
that, in this respect, the Court enjoys a margin of appreciation. Given contemporary
1322 In the Diallo case, the Court decided in its 19 June judgment that the amount awarded shall be
paid by 31 August (approximately 60 business days) and “that, in case it has not been paid by this
date, interest on the principal sum due… will accrue as from 1 September 2012 at an annual rate of
6 per cent”. Diallo (2012), para. 61(5).
1323 DRCM, para. 7.89(e) (Translation by Counsel, original in French: “des intérêts moratoires
courront sur la somme principale au taux que la Cour jugera approprié de fixer”.).
448
market conditions, however, Uganda urges the Court to set such interest at an
annual rate no higher than 3%.1324
10.7 Second, the DRC also seeks simple interest at an annual rate of 6% on any
compensation the Court may order, to be calculated from the date of the filing of
its Memorial on Reparation (28 September 2016) until the date of the Court’s
judgment. In contrast to the first request, ordering such “compensatory interest” in
the circumstances of this case would not be consistent the prior practice of the
Court or the rules applicable to inter-State compensation under international law.
Such compensatory interest should therefore not be included in any judgment.
10.8 The DRC attempts to justify this aspect of its request for interest as follows:
“A considerable period of time will have elapsed
between the time when these damages were
incurred, the time when they were calculated, the
time when this petition was formulated and finally
the time when the victims will in fact be
compensated. This passage of time necessarily
entails a depreciation of the sums at issue, by reason
of, inter alia, inflation (even if it has continued to
experience a marked deceleration in the DRC in
recent years). The grant of compensatory interest on
the sums due from Uganda as compensation
constitutes the most effective way to remedy this
loss in value.”1325
1324 For example, the London interbank offered rate (LIBOR) – the basic rate of interest used in
lending between banks on the London interbank market and also used as a reference for setting the
interest rate on other loans – currently is below 2%.
1325 DRCM, para. 7.56 (Translation by Counsel, original in French: “Une période de temps
considérable se sera écoulée entre le moment où ces dommages sont survenus, le moment où ils ont
été évalués, le moment où la présente demande est formulée, et enfin celui où les victimes seront
effectivement indemnisées. Cet écoulement du temps entraîne forcément une dépréciation des
sommes en cause, en raison entre autres de l’inflation (même si celle-ci a continu un ralentissement
notable en RDC au cours des dernières années). L’octroi d’intérêts compensatoires sur les sommes
449
10.9 It adds further that in order to assure full reparation,
“interest must begin to accrue at the time of
commission of the act that is unlawful under
international law. It is indeed from that time that the
victims’ right to reparations for these acts
attaches.”1326
10.10 Yet, in its final Submissions, the DRC does not provide a valuation of the
harm as of the date that the harm occurred, to which a further amount of
compensatory interest accrued from that date to the present is added. Rather, the
DRC indicates a valuation of harm to it “as of the date of the filing of its Memorial”
in this phase and then requests a supplemental amount of 6% interest calculated
“from and after” that date.1327 There is thus a disconnect between the reason the
DRC offers for an award of interest and the request for interest it presents to the
Court.
10.11 The explanation for this disconnect is that the DRC, by its own admission,
has not attempted to place a value on the alleged harm as of the date it ostensibly
occurred. The DRC acknowledges at paragraph 7.59 of its Memorial that its
approach to placing a value on the alleged harms has no connection to the date on
which the harm occurred. The quanta sought for physical harm to persons, for
dues par l’Ouganda à titre de mesures d’indemnisation constitue la manière la plus efficace de
remédier à cette perte de valeur.”) (emphasis added).
1326 Ibid., para. 7.58 (Translation by Counsel, original in French: “[L]es intérêts doivent commencer
à courir au moment de la commission du fait internationalement illicite. C’est en effet dès ce
moment-là que s’ouvre le droit à réparation des victimes de ces faits”). (emphasis added). See also
ibid. para. 7.60 (maintaining that “its basic position pursuant to which interest should begin to
accrue from the date of the illicit act”.) (Translation by Counsel, original in French: “[S]a position
de principe selon laquelle les intérêts doivent commencer à courir à compter du fait illicite.”)
(emphasis added).
1327 Ibid., para. 7.89(b) (emphasis added) (Translation by Counsel, original in French: “à partir de
la date du dépôt du présent mémoire”.).
450
example, are anchored, in part, to judgments of DRC national courts rendered
between 2009 and 2015. “Worksheets” that purportedly demonstrate property harm
were created years after the Court’s 2005 Judgment. Calculations of harm caused
to natural resources are based on factors “between the [2005] decision of the Court
and recent times”. And the alleged “macro-economic harm was calculated” as of
2005.1328 Hence, it is not possible for the DRC to seek interest on the valuation of
the harm from the date that the alleged harm occurred to the present, since all the
DRC’s valuations (and the evidence upon which they are based) substantially postdate
the harm’s nominal occurrence.
10.12 As a result, the DRC has had to shift its approach. Because the DRC
believes that it would have been within its rights to determine the valuation of the
harm as of the date it occurred, it thinks it can alternatively request compensatory
interest starting from any subsequent date when the valuation of the harm is
determined by the DRC.1329 Because its valuations are anchored in information
post-dating the occurrence of the harm, but pre-dating the filing of its Memorial,
the DRC’s theory seems to be that it can seek interest starting from the date of the
filing of its Memorial, since it is as of that date that the DRC placed a valuation on
all the alleged harm.
10.13 The DRC points to no precedent for seeking compensatory interest that
accrues from the date of the filing of a claimant’s pleading until the date of a court’s
judgment, either as a matter of international or even national law. That alone is a
strong basis for concluding that the DRC’s approach is mistaken.
1328 Ibid., para. 7.59 (Translation by Counsel, original in French: “Le dommage macro-économique
a quant à lui été évalué.”).
1329 Ibid.
451
10.14 Even more problematic is the flawed nature of the DRC’s premise. The
rules applicable to inter-State compensation do not provide for awarding
compensatory interest based merely on the applicant’s claims or on the fact that
harm occurred at some time in the past. Rather, compensatory interest is properly
applied only in circumstances where the Court determines that a fixed sum was due
to the applicant as of a specified date in the past, thereby requiring an additional
amount of compensatory interest so as to ensure full reparation in the present. No
such circumstances exist in this case.
10.15 The PCIJ stated in its very first case, S.S. “Wimbledon”:
“As regards the rate of interest, the Court considers
that in the present financial situation of the world and
having regard to the conditions prevailing for public
loans, the 6 % claimed is fair; this interest, however,
should run, not from the day of the arriva1 of the
‘Wimbledon’ at the entrance to the Kiel Canal, as
claimed by the applicants, but from the date of the
present judgment, that is to say from the moment
when the amount of the sum due has been fixed and
the obligation to pay has been established.”1330
10.16 The Court did not view the calculation of interest as commencing on the
date of the harm. Nor did the Court view the calculation of interest as commencing
on the date that the three claimant States filed their pleadings with the Court.
Rather, it found the date on which interest should commence to be the date of its
own judgment, when the amount of compensation due from Germany was fixed
and established.
1330 S.S. “Wimbledon”, Judgment, 1923, P.C.I.J., Series A, No. 1, p. 32 (emphasis added). See also
Georges Pinson (France) v. United Mexican States, 5 RIAA 327 (19 Oct. 1928), p. 453, para. 71.
452
10.17 In light of precedents such as S.S. “Wimbledon”, Article 38 of the ILC
Articles on State Responsibility, entitled “Interest”, provides:
“1. Interest on any principal sum due under this
chapter [concerning ‘Reparation for injury’] shall be
payable when necessary in order to ensure full
reparation. The interest rate and mode of calculation
shall be set so as to achieve that result.
2. Interest runs from the date when the principal sum
should have been paid until the date the obligation to
pay is fulfilled.”1331
10.18 The concept of “when the principal sum should have been paid” normally
means the date on which an international court or tribunal provides a definitive
quantification of the sum due. In some circumstances, the date when “a principal
sum should have been paid” might pre-date a judgment if the sum “is quantified as
at an earlier date than the date of the settlement of, or judgement or award
concerning, the claim and to the extent that it is necessary to ensure full
reparation”.1332 The principal example of such a circumstance is when one State
owes to another State a quantified debt that is due to be paid on a specified date. A
failure to pay the debt on time can result in compensatory interest (also conceived
of as “moratory damages” for the late payment of the debt), to be calculated based
on the date the debt was due.
10.19 Yet, even in that instance, international tribunals often have not used the
date the debt came due as the basis for calculating interest. In the Russian Indemnity
1331 ARSIWA, Vol. II, Part 2 (2001), p. 107.
1332 Ibid., Art. 38, Commentary, p. 107, para. (2).
453
Case, which was cited as an example by the ILC1333 (and referred to by the DRC
in its Memorial1334), the tribunal noted:
“A considerable number of international arbitral
awards have allowed that, even when it is a question
of moratory interest-damages for deferred payments,
there is no occasion to have it always run from the
date of the damageable fact (United States v.
Venezuela, Orinoco, award of The Hague of October
25, 1910, protocols, p. 59; United States v. Chile,
May 15, 1863, award of His Majesty the King of the
Belgians LEOPOLD I, LAFONTAINE, Pasicrisie,
p. 36, column 2 and page 37, column 1; Germany v.
Venezuela, Arrangement of May 7, 1903,
RALSTON & DOYLE, Venezuelan Arbitrations,
Washington, 1904, pp. 520 to 523; United States v.
Venezuela, December 5, 1885, MOORE, Digest of
International Arbitrations, p. 3545 and p. 3567, Vol.
4, etc.).”1335
10.20 Rather, in such instances, the date often used as the starting point for
calculating interest was the date of the receipt of demand for the payment of the
debt. The tribunal thus continued:
“[I]n principle the Imperial Ottoman Government
was liable to the Imperial Russian Government for
moratory indemnities from December 31,
1890/January 12, 1891, the date of the receipt of an
explicit and regular demand for payment”.1336
10.21 In any event, such circumstances are plainly not present in this case. There
is no basis for maintaining that an amount of compensation owed by Uganda to the
1333 Ibid., p. 109, note 619.
1334 DRCM, para. 7.60.
1335 Russian Claim for Interest Indemnities (Russia v. Turkey), P.C.A., Award (11 Nov. 1912), p.
12 (emphasis added). Unofficial translation provided by the P.C.A.
1336 Ibid., p. 16.
454
DRC was “fixed” as of any particular date in the past (including the date of the
DRC Memorial) or that an obligation to pay such an amount was “established” as
of any such date.
10.22 The concept of a “quantified” sum does not refer simply to any amount
requested by a claimant State; it refers to an amount that is unequivocally due from
one State to another, such as for repayment of a debt or a contract term that provides
for liquidated damages. The DRC’s assertions in its Memorial that it claims billions
of dollars in compensation are not comparable to these concepts. Accordingly,
there is no basis for awarding compensatory interest calculated from the time of
the submission of the DRC Memorial.
10.23 Moreover, there are other problems with the DRC’s request for such
compensatory interest. First, fixing the starting point for calculating compensatory
interest as the date when the applicant State’s Memorial is filed makes the
reparation turn on an arbitrary point in time in the process of inter-State dispute
resolution.1337 Doing so would require the Court to evaluate reparation by trying to
turn back the clock in order to reconstitute the situation prevailing at the time the
pleading was filed.
10.24 Second, the DRC’s request is inappropriate because of the nature of the
compensation it requests. The DRC generally seeks compensation based on
present-day values, whether it be with respect to physical harm or property damage.
The DRC’s request is no more targeted at having the Court determine a valuation
of the alleged harms as of September 2016 than it is at having the Court determine
1337 As early as 1875, the Arbitral Tribunal in the case of the Montijo noted that “it seems open to
question whether interest should accrue during the process of diplomatic negotiations, which are
often protracted in their character”. La Fontaine, Pasicrisie Internationale (1794-1900): Stemae
Montijo (Colombia v. USA), Arbitral Award (26 July 1875), p. 220.
455
a valuation as of September 2010 or September 2018. Yet, as the ILC points out in
its commentary, “interest may not be allowed where the loss is assessed in current
value terms as at the date of the award.”1338 If the Court is awarding compensation
based on a generalised present-day valuation, there is no basis for supplementing
that valuation with compensatory interest.
10.25 Further, as demonstrated in Chapters 5-9 of this Counter-Memorial, the
DRC’s requests for compensation are so disassociated from actual injury, that it
can be conceived of as essentially seeking a lump-sum amount, an approach which
also warrants no supplemental compensatory interest.
10.26 International tribunals have excluded compensatory interest when the
valuation of the harm is determined at the date of the award or judgment. As
explained by the arbitral tribunal in Concession of the Lighthouses of the Ottoman
Empire:
“If the Tribunal had adopted the method of fixing the
amount of the debts, at the time of their origin, in the
currencies of origin, and consequently of allowing
the effect of the devaluations of those currencies to
fall on the parties, there would have been some
reason to allow the latter to benefit similarly from
interest. If, on the other hand, the Tribunal had
proceeded from the idea that Collas & Michel, the
moneys owing to them having been paid
immediately, had invested in gold the sums thus
received in order to protect themselves against all
risk of devaluation, the award of interest would have
been illogical.
Nor is there in the system of compensation which the
Tribunal finally adopted any reason to award interest
in addition to the capital sums awarded. Indeed, the
1338 ARSIWA, Vol. II, Part 2 (2001), p. 107, note 602.
456
basic idea of that system consists precisely in
determining in a present-day currency the actual
value which the debts had in the past in their
currency of origin. In expressing this actua1 past
value as exactly as possible in terms of present-day
currency, the Tribunal deliberately excluded all the
vicissitudes of the currencies of origin. It has, so to
speak, thrown a bridge across the stirring period of
the years which have clasped and placed itself
consciously in the present. In these circumstances
justice as well as logic require that no interest
covering the past be awarded.”1339
10.27 In support of its request, the DRC mentions two investment arbitration
awards involving economic harm where the tribunals determined the amount of
economic loss as of the date of the harm and then calculated an amount of interest
on that amount from that date to the date of its award, so as to reach a total amount
owed to a private investor.1340 Those awards obviously do not support a request for
interest to be awarded from the date of the filing of a pleading in which the claimant
asserts a valuation of its claim. Moreover, they were cases before ad hoc tribunals
1339 Affaire relative à la concession des phares de l’Empire ottoman (Grèce, France), 12 RIAA 155
(24-27 July 1956), pp. 252-253 (Translation by Counsel, original in French: “Si le Tribunal avait
adopté la méthode de fixer les montants des dettes, à l’époque de leur naissance, dans les monnaies
d’origine et de faire retomber ensuite l’effet des dévaluations de ces monnaies sur les parties, il y
aurait eu lieu de les faire bénéficier également de l’intérêt. Si, au contraire, le Tribunal était parti de
l’idée que la Société, en cas de paiement immédiat de ses créances, aurait investi les sommes ainsi
perçues en or pour se protéger contre tout risque de dévaluation, l’allocation d’intérêts aurait été
illogique. Dans le système d’indemnisation que le Tribunal a fini par adopter, il n’y a pas non plus
lieu d’allouer des intérêts en sus des sommes en capital accordées. En effet, l’idée fondamentale de
ce système consiste précisément à fixer dans une monnaie présente la valeur réelle que les créances
avaient dans le passé en leur monnaie d’origine. En exprimant la valeur réelle d’autrefois aussi
exactement que possible dans la monnaie d’aujourd’hui, le Tribunal fait délibérément abstraction
de toutes les vicissitudes des monnaies d’origine. Il a, pour ainsi dire, jeté un pont à travers toute la
période mouvementée des années écoulées et s’est placé consciemment dans le présent. Dans ces
conditions, la justice aussi bien que la logique commandent de ne pas allouer en plus d’intérêts
couvrant le passé”.). See also Pierre d’Argent, Les réparations de guerre en droit international
public (Oct. 2002), pp. 710-711.
1340 See note 671 of the DRCM: “See, e.g., Metalclad Corporation v. United Mexican States, ICSID
Case No. ARB(AF)/97/1, 30 August 2000, para. 128 or Venezuela Holdings B.V. and others v.
Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/27, Award, 9 October 2014, para. 397.”
457
convened under the auspices of ICSID to dispose of disputes between States, on
the one hand, and private investors, on the other hand. As such, they have limited
relevance in the context of an inter-State claim before an international court. Most
importantly, such cases simply confirm the basic rule: only if the tribunal
determines that a fixed sum was due to the claimant as of a specified date in the
past should an additional amount of compensatory interest be awarded so as to
ensure full reparation in the present.
10.28 Third, the DRC is seeking compensatory interest for harms to persons. Yet
according to well-established case-law, “[n]o interest should be allowed, as such,
upon claims for purely personal injuries, not involving the seizure of or injury to
property.”1341 The United States-Germany Mixed Claims Commission clearly
explained:
“There is no basis for awarding damages in the
nature of interest where the loss is neither liquidated
nor the amount thereof capable of being ascertained
by computation merely. In claims of this class no
such damages will be awarded, but when the amount
of the loss shall have been fixed by this Commission
the award made will bear interest from its date. To
this class belong claims for losses based on personal
injuries, death, maltreatment of prisoners of war, or
acts injurious to health, capacity to work, or
honor.”1342
10.29 In sum, in the circumstances of this case, the DRC is only entitled to interest
in the event the Court issues a judgment ordering Uganda to pay a fixed sum of
1341 Mixed Claims Commission, H.M. Duffield Umpire, Christern & Co., Becker & Co., Max
Fischbach, Richard Friedericy, Otto Kummerow, and A. Daumen cases (Germany v. Venezuela),
10 RIAA (1903), p. 366 (emphasis in the original).
1342 United States v. Germany, U.S.-Germany Mixed Claims Commission Administrative Decision
No. III, 7 RIAA 64 (11 Dec. 1923), p. 65.
458
compensation to the DRC and Uganda fails to pay such compensation within a
reasonable period of time. Were that to happen, the DRC would be entitled both to
the fixed sum of compensation and to simple interest on that sum calculated from
the date of the Court’s judgment to the date of payment. As previously noted,
Uganda respectfully submits that, having regard to prevailing global economic
conditions, the annual rate of any such interest should be no more than 3%.
II. The DRC Is Not Entitled to the Additional Satisfaction It Seeks
10.30 The DRC claims that, regardless of the amount of any compensation that
may be granted by the Court, “this means of compensation will not suffice to
remedy the scope of damage and suffering that resulted from Uganda’s breach of
its international obligations”.1343 Consequently, the DRC seeks additional
reparation in the form of satisfaction. To that end, it relies on Article 37 of the ILC
Articles on State Responsibility, which reads:1344
“Satisfaction
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.
2. Satisfaction may consist in an acknowledgement
of the breach, an expression of regret, a formal
apology or another appropriate modality.
1343 DRCM, para. 7.65 (Translation by Counsel, original in French: “ce mode de réparation ne
suffira pas à remédier à l’ampleur des dégâts et des souffrances qui ont résulté de la violation par
l’Ouganda de ses obligations internationales.”).
1344 Ibid.
459
3. Satisfaction shall not be out of proportion to the
injury and may not take a form humiliating to the
responsible State.”1345
10.31 The DRC requests the Court to order two types of satisfaction. First, it seeks
an order from the Court that Uganda commence, “as a measure of satisfaction, the
institution of investigations and criminal prosecutions against the officers and
soldiers of the UPDF implicated in the acts at issue.”1346
10.32 Second, the DRC also requests the Court to order Uganda to pay “the sum
of US$ 125 million in satisfaction of all intangible harm resulting from violations
of international law enumerated by the Court in its decision of December 19,
2005”.1347 This enormous monetary amount is composed of two elements: (1) US$
25 million “to allow for the creation of a fund for the purpose of promoting
reconciliation between the Hema and the Lendu”; 1348 and (2) US$ 100 million, “as
an element of satisfaction, for the intangible harm suffered by the Congolese state
and the Congolese people”.1349
10.33 Both of these requests are misguided, inappropriate and legally
unsustainable. They should therefore be rejected. The ILC has observed that “one
1345 ARSIWA.
1346 Ibid., para. 7.71 (Translation by Counsel, original in French: “au titre de mesures de satisfaction,
la mise en oeuvre d’enquêtes et de poursuites pénales à l’encontre des officiers et des soldats de
l’UPDF impliqués dans les faits en cause.”).
1347 Ibid., para. 7.89 (Translation by Counsel, original in French: “la somme de 125 millions de
dollars des Etats- Unis au titre de mesure de satisfaction pour l’ensemble des dommages immatériels
résultant des violations du droit international constatées par la Cour dans son arrêt du 19 décembre
2005.”).
1348 Ibid., para. 7.75 (Translation by Counsel, original in French: “pour permettre la création d’un
fonds visant à favoriser la réconciliation entre les Hema et les Lendu.”).
1349 Ibid., para. 7.83 (Translation by Counsel, original in French: “au titre de mesure de satisfaction,
pour les dommages immatériels subis par l’Etat et la population congolaise”.).
460
of the most common modalities of satisfaction provided in the case of moral or
non-material injury to the State is a declaration of the wrongfulness of the act by a
competent court or tribunal”.1350 In fact, there are many instances in which courts
and tribunals have considered that the declaration of wrongfulness alone was an
appropriate measure of satisfaction, including in cases where use of force was
involved.1351 Uganda respectfully submits that the same approach to satisfaction
should be followed by the Court in this case.
A. SATISFACTION IN THE FORM OF AN ORDER TO INVESTIGATE AND PROSECUTE UPDF OFFICERS AND SOLDIERS
10.34 In support of its claim for satisfaction in the form of an order to investigate
and prosecute UPDF officers and soldiers, the DRC asserts that “following the
massacres that occurred in Bunia in January 2001, the special rapporteur on the
human rights situation in the DRC asked the Ugandan government and the FLC to
[investigate the incident and bring those responsible to justice]”.1352 Claiming that
it “does not have a single document or any information that would show that
criminal investigations were undertaken”,1353 the DRC asserts that “the institution
1350 “Draft articles on Responsibility of States for Internationally Wrongful Acts”, Yearbook of the
International Law Commission, Vol. II, Part 2 (2001), Art. 37, Commentary, p. 106, para. (6).
1351 See, e.g., Affaire du Carthage (France v. Italie) 11 RIAA 449 (6 May 1913), pp. 460-461;
Affaire du Manouba (France v. Italie) 11 RIAA 463 (6 May 1913), p. 475; Corfu Channel (Merits,
1949), p. 35.
1352 DRCM, para. 7.68 (Translation by Counsel, original in French: “à la suite des massacres
survenus à Bunia en janvier 2001, le rapporteur spécial sur la situation des droits de l’homme en
RDC a-t-il demandé au Gouvernement ougandais et au FLC de ‘lancer des enquêtes sur l’incident
susmentionné afin d’identifier les responsables et de les traduire en justice’”.).
1353 Ibid., para. 7.69 (Translation by Counsel, original in French: “ne dispose à ce jour d’aucun
document ou information qui attesterait que des enquêtes pénales auraient été diligentée”.).
461
of such prosecutions emerges as a major element of the reparations due to the DRC
for these acts as a measure to achieve satisfaction.”1354
10.35 There are several flaws with this request, any one of which is a basis for
denying it. First, there is no factual foundation before the Court, either at the merits
phase or now, supporting the contention that no UPDF officers or soldiers were
investigated, disciplined or prosecuted with respect to the alleged events in Bunia
in January 2001. As such, there is no evidentiary basis to conclude that such actions
of investigation or prosecution did or did not take place.
10.36 Second, the reason why no such factual record is before the Court is that
the DRC never made any claims at the merits stage that Uganda failed to pursue
such actions, let alone failed to pursue such actions with respect to any specific
UPDF officers or soldiers. Among other things, the DRC never raised at the merits
phase the “request” by the special rapporteur, which itself is not legally binding.
The DRC’s request for satisfaction therefore has no direct connection with any
specific liability finding concerning the conduct of particular officers or soldiers.
The Court cannot issue an order that persons be investigated or prosecuted when
the conduct of specific persons was not passed upon by the Court at the merits
phase.
10.37 Third, in light of the first two points, it is clear that the DRC’s request is
really a new liability claim, one that was not brought at the merits phase and
therefore is inadmissible at this phase. In essence, the DRC is now asking this Court
to find that Uganda violated international law by failing to investigate and
1354 Ibid., para. 7.70 (Translation by Counsel, original in French: “la mise en oeuvre de telles
poursuites apparaît comme un élément majeur de la réparation due à la RDC pour ces faits, à titre
de mesure de satisfaction.”).
462
prosecute UPDF officers or soldiers, a claim that might have been brought at the
merits phase but was not. Had the DRC brought such a claim, and had it been
successful in demonstrating a lack of investigation or prosecution by Uganda of
specified individuals in violation of international law, then perhaps reparation for
that violation might take the form of an order by the Court that those individuals
be investigated and their cases be submitted to prosecution. Yet none of those prior
steps was taken in this case. Although the DRC styles this as a request for a form
of reparation, the absence of a factual or legal predicate at the merits phase for such
“satisfaction” demonstrates that, in reality, it is a new claim in disguise that the
Court cannot entertain at this late date.
10.38 After mentioning the request formulated by the special rapporteur on the
human rights situation in the DRC, and deploring that there is nothing attesting that
anything has been done “yet”, the DRC states that “it is clear that said authorities
are expected to conduct such prosecutions pursuant to international law”.1355 This
statement effectively acknowledges that the DRC’s request is actually a claim that
Uganda’s failure to prosecute was a violation of international law, not simply a
request for a form of reparation. The DRC’s request overlooks the distinction
between primary rules the violation of which engage a State’s international
responsibility,1356 on the one hand, and secondary rules which cover the
1355 Ibid., para. 7.69 (Translation by Counsel, original in French: “[il] est manifeste que ce[s]
[autorités] sont tenues de diligenter semblables poursuites en vertu du droit international.”)
(emphasis added).
1356 Some treaties impose upon a State the obligation to submit to prosecution an alleged offenders
located the State’s territory, an obligation that in some instances can be avoided through extradition
or surrender to an international tribunal. For a recent report on the obligation to “extradite or
prosecute”. See “Draft articles on Responsibility of States for Internationally Wrongful Acts”,
Yearbook of the International Law Commission, Vol. II, Part 2 (2001). (The obligation to extradite
or prosecute (aut dedere aut judicare)). The DRC’s claims at the merits phase, however, invoked
no such obligations.
463
consequences that flow once State responsibility is engaged, on the other hand.1357
In suggesting that Uganda failed to investigate and prosecute even though its
authorities were bound to do so under international law, the DRC is speaking (too
late) to a primary rule, not to a matter of reparation.
B. SATISFACTION IN THE FORM OF AN ORDER TO PAY US$ 125 MILLION FOR
INTANGIBLE HARM
10.39 The DRC’s second claim for satisfaction is in the form of an order from the
Court that Uganda pay US$ 125 million for “intangible harm”. Specifically, the
DRC requests “the sum of USD 125 million in satisfaction of all intangible harm
resulting from violations of international law enumerated by the Court in its
decision of December 19, 2005”.1358
10.40 A threshold problem with this request is that it covers a type of harm that is
already encompassed in the DRC’s other compensation claims, such that the
awarding of satisfaction in this form would result in double-recovery. Thus, one
portion of the “intangible harm” covered by the DRC’s request is “for violations of
international humanitarian law and international norms for the protection of the
rights of the individual committed in the territory of Ituri”, so as to establish a fund
“for the purpose of promoting reconciliation between the Hema and the Lendu.”1359
1357 See “Draft articles on Responsibility of States for Internationally Wrongful Acts”, Yearbook of
the International Law Commission, Vol. II, Part 2 (2001), General Commentary, para. (1).
1358 DRCM, para. 7.89(c) (Translation by Counsel, original in French: “la somme de 125 millions
de dollars des Etats-Unis au titre de mesure de satisfaction pour l’ensemble des dommages
immatériels résultant des violations du droit international constatées par la Cour dans son arrêt du
19 décembre 2005”.).
1359 Ibid., para. 7.75 (Translation by Counsel, original in French: “pour les violations du droit
international humanitaire ou des normes internationales de protection des droits de la personne
commises sur le territoire de l’Ituri”, “visant à favoriser la réconciliation entre les Hema et les
Lendu”.).
464
Another portion of the “intangible harm” covered by the DRC’s request is
“intangible harm suffered by the… Congolese people”.1360 Such “intangible
harms” are no different from seeking compensation for moral injury to persons
(and is to be distinguished from intangible injury to the DRC itself1361). Yet moral
injury suffered by DRC nationals is already encompassed in the DRC’s
compensation claims, as reflected in the repeated invocation of moral injury
throughout the DRC’s requests for compensation with respect to different
categories of harm.1362
10.41 It must also be noted that, while satisfaction in the form of a monetary
payment is possible under the rules on State responsibility, in practice there is no
example of an award of such satisfaction beyond a purely symbolic amount. In the
Arends case, for example, the payment of US$ 100 was indicated as a form of
1360 Ibid., para. 7.83 (Translation by Counsel, original in French: “les dommages immatériels subis
par… la population congolaise”.).
1361 G. Arangio-Ruiz, “Second Report on State Responsibility”, in Yearbook of the International
Law Commission, Vol. II, Part I, Doc. No. A/CN.4/425 & Corr.1 and Add.1 & Corr.1 (1989), p. 5,
para. 13. See also J. Crawford, “Third report on State responsibility”, in Yearbook of the
International Law Commission, Vol. II, Part I, A/CN.4/507 and Add. 1-4 (2000), p. 54, para. 180.
1362 DRCM, para. 7.11 (Translation by Counsel, original in French: “La dimension de préjudice
moral est, quant à elle, particulièrement importante dans les cas auxquels il vient d’être fait
référence, au vu des conditions souvent atroces dans lesquelles les massacres des populations civiles
ont été perpétrés”.); ibid., para. 7.16 (Translation by Counsel, original in French: “On peut retenir
au titre du préjudice moral le traumatisme résultant des atrocités commises, l’angoisse que les faits
se reproduisent, les souffrances résultant des difficultés d’accès aux soins, la détresse résultant de
l’absence d’intervention des autorités en place et de l’absence de poursuite des auteurs des faits, la
dégradation permanente de la qualité de la vie des victimes de mutilations, de même que l’atteinte
irrémédiable à leur image et à leur estime de soi”.); ibid., para. 7.26 (Translation by Counsel,
original in French: “Le préjudice moral résulte quant à lui des traumatismes résultant de
l’arrachement de ces enfants à leur famille et de leur exposition à divers mauvais traitements ainsi
qu’aux violences de la guerre”); ibid., para. 7.30 (Translation by Counsel, original in French: “Le
préjudice moral consiste quant à lui dans le traumatisme résultant pour les déplacés des atrocités
commises contre les autres membres de leur groupe, de l’angoisse que des faits du même ordre se
reproduisent, ainsi que de la détresse résultant de l’absence d’intervention des autorités en place et
de l’absence de poursuite des auteurs des faits.”).
465
satisfaction.1363 Similarly, satisfaction in the form of the payment of one shilling
was awarded in the Brower case.1364 Moreover, even examples of satisfaction the
form of a symbolic payment are extremely rare, especially in modern practice. In
his third report on State responsibility, Professor Crawford observed: “Although
there have occasionally been examples of the award of nominal damages by
international tribunals, in modern practice these are rare”1365 and “[t]here seems to
have been no case of the award of nominal damages by an international tribunal in
a State-to-State case since the Tribunal awarded FF 1 to France in the Lighthouses
arbitration”.1366 The same is true even with respect to a breach of international law
in the form of the jus ad bellum.1367
10.42 In addition to these general comments, there is another reason to deny the
DRC’s request for satisfaction in the form of an order that Uganda pay US$ 25
million “to allow for the creation of a fund for the purpose of promoting
1363 See, e.g., Mixed Claims Commission, Plumley Umpire, Arends Case (Netherlands v. Venezuela),
10 RIAA 729 (1903), pp. 729-730. More generally, G. Arangio-Ruiz, “Second Report on State
Responsibility”, in Yearbook of the International Law Commission, Vol. II, Part I, Doc. No.
A/CN.4/425 & Corr.1 and Add.1 & Corr.1 (1989), prec. note 1361 pp. 34-35, paras. 114-118.
1364 Arbitral Tribunal (Great Britain – United States) constituted under the Special Agreement of
August 18, 1910, Isaac M. Brower (United States) v. Great Britian (Fijian Land Claims), 6 RIAA
109 (14 Nov. 1923), p. 112.
1365 Third report on State responsibility, by Mr James Crawford, Special Rapporteur, 15 March, 15
June, 10 and 18 July and 4 August 2000, Yearbook of the International Law Commission 2000, Vol.
II, Part One, p. 55, para. 188.
1366 Ibid., note 375; Affaire relative à la concession des phares de l’Empire ottoman (Grèce,
France), 12 RIAA 155 (24-27 July 1956) (Sales No. 63.V.3), p. 126. The case of the Rainbow
Warrior, isolated as it can be, is not a convincing precedent since the principle of a pecuniary
satisfaction was accepted by France and the Tribunal and only to fix its amount; it decided to split
the difference between the amount proposed by France and that claimed by New Zealand (Case
concerning the 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, 20 RIAA, (30 Apr. 1990), pp. 215-284).
1367 Pierre d’Argent, Les réparations de guerre en droit international public (Oct. 2002), op. cit.
note 1339, pp. 718.
466
reconciliation between the Hema and the Lendu.”1368 Simply put, ordering
satisfaction of this kind would be wholly unprecedented in international law.1369
10.43 The only precedent the DRC cites for the creation of such a fund is the
Rainbow Warrior case. Yet, in that case, the creation of a fund was not a measure
ordered by the tribunal; it was a mere recommendation.1370 Moreover, that
recommendation was not part of the reparation decided by the tribunal. The tribunal
first addressed reparation by declaring “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 in the circumstances appropriate
satisfaction for the legal and moral damage caused to New Zealand”.1371 Then, only
after this declaration, did the tribunal proceed to make its recommendation.
10.44 Issuing an order of the type requested by the DRC would place the Court
outside its function as a Court of law granting reparation in accordance with the
rules on State responsibility. Doing so would constitute an exercise of power ex
aequo et bono and/or constitute a form of punitive damages, neither of which is
appropriate in the context of this case.1372
10.45 There are also other reasons to deny the DRC’s request for satisfaction in
the form of an order that Uganda pay US$ 100 million “for the intangible harm
1368 DRCM, para. 7.75 (Translation by Counsel, original French: “pour permettre la création d’un
fonds visant à favoriser la réconciliation entre les Hema et les Lendu.”).
1369 Pierre d’Argent, Les réparations de guerre en droit international public (Oct. 2002), p.719-720.
1370 Case concerning the 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, 20 RIAA, (30 Apr. 1990), p. 274,
paras. 126-127.
1371 Ibid., p. 273, para. 123.
1372 See Chapter 4, Section I(D) and (E).
467
suffered by the Congolese state and the Congolese people”.1373 In particular, it is
inappropriate to order a monetary payment of such magnitude as a form of
satisfaction for intangible harm to a State.
10.46 According to the ILC:
“[T]he injury for which a responsible State is obliged
to make full reparation embraces ‘any damage,
whether material or moral, caused by the
internationally wrongful act of a State’. Material and
moral damage resulting from an internationally
wrongful act will normally be financially assessable
and hence covered by the remedy of compensation.
Satisfaction, on the other hand, is the remedy for
those injuries, not financially assessable, which
amount to an affront to the State.”1374
The Commission then immediately recalls that “[t]hese injuries are frequently of a
symbolic character, arising from the very fact of the breach of the obligation,
irrespective of its material consequences for the State concerned.”1375 For that
reason, the ILC was clear that such satisfaction was not intended to consist of largescale
monetary payments, which could only be viewed as punitive in nature:
“Excessive demands made under the guise of
‘satisfaction’ in the past1376 suggest the need to
impose some limit on the measures that can be
sought by way of satisfaction to prevent abuses,
inconsistent with the principle of the equality of
1373 DRCM, para. 7.83 (emphasis added) (Translation by Counsel, original in French: “pour les
dommages immatériels subis par l’Etat et la population congolaise”.).
1374 “Draft articles on Responsibility of States for Internationally Wrongful Acts”, Yearbook of the
International Law Commission, Vol. II, Part 2 (2001), Art. 37, Commentary, p. 106, para. (3).
1375 Ibid.
1376 Ibid., note 600 in the original: “For example, the joint note presented to the Chinese Government
in 1900 following the Boxer uprising and the demand by the Conference of Ambassadors against
Greece in the Tellini affair in 1923: see C. Eagleton, op. cit. (footnote 582 above), pp. 187–188”.
468
States.1377 In particular, satisfaction is not intended
to be punitive in character, nor does it include
punitive damages. Paragraph 3 of article 371378
places limitations on the obligation to give
satisfaction by setting out two criteria: first, the
proportionality of satisfaction to the injury; and
secondly, the requirement that satisfaction should
not be humiliating to the responsible State. It is true
that the term ‘humiliating’ is imprecise, but there are
certainly historical examples of demands of this
kind.”1379
10.47 In the present case, far from requesting an “award of symbolic damages for
non-pecuniary injury”,1380 the DRC is claiming an enormous monetary payment—
US$ 125 million—as satisfaction for intangible harm suffered by the DRC and its
people. The Court should deny the DRC’s request because it cannot be viewed as
an appropriate form of satisfaction against a State. It is clearly intended to be
punitive and humiliating in character, and is therefore not an acceptable form of
satisfaction under international law.
III. The DRC Is Not Entitled to Its Costs, Including Attorneys’ Fees
10.48 Finally, the DRC requests that “[o]ver and above the measures for
compensation and satisfaction that have just been put forth, the Democratic
Republic of Congo asks the Court to rule that the court costs incurred by the DRC
1377 Ibid., note 601 in the original: “The need to prevent the abuse of satisfaction was stressed by
early writers such as J. C. Bluntschli, Das moderne Völkerrecht der civilisirten Staten als
Rechtsbuch dargestellt, 3rd ed. (Nördlingen, Beck, 1878); French translation by M. C. Lardy, Le
droit international codifié, 5th rev. ed. (Paris, Félix Alcan, 1895), pp. 268-269.”
1378 Art. 37 provides in paragraph 3: “Satisfaction shall not be out of proportion to the injury and
may not take a form humiliating to the responsible State.”
1379 “Draft articles on Responsibility of States for Internationally Wrongful Acts”, Yearbook of the
International Law Commission, Vol. II, Part 2 (2001), Art. 37, Commentary, p. 107, para. (8).
1380 Ibid, Art. 37, Commentary, p. 106, para. (5).
469
in the framework of the instant case be borne by Uganda.”1381 This request should
also be denied.
10.49 Granting the DRC’s request would run against the presumption set forth in
Article 64 of the Court’s Statute, which provides that “[u]nless otherwise decided
by the Court, each party shall bear its own costs”. Granting it would also run
contrary to the Court’s and the PCIJ’s practice; neither has ever ordered one party
to pay the costs of the other. As the Court noted in its 1973 Advisory Opinion on
the Application for Review of Judgment No. 158 of the UNAT, Article 64 reflects a
“basic principle” of proceedings before international tribunals.1382 The Court’s
position has been reaffirmed on several occasions.1383 Notably, the DRC itself
concedes that “such petitions are rarely presented to the Court.”1384
10.50 Rosenne explained that the Court’s position “shows the correct approach as
lying in the classic theory of international arbitration and the principle of the
equality of the parties, according to which it is not appropriate to regard the parties
as standing in some sort of plaintiff/defendant relationship”.1385 In effect, contrary
to what the DRC suggests, the principle enunciated in Article 64 of the Statute does
not relate to the character or gravity of the case, but rather to the character of the
1381 DRCM, para. 7.85 (Translation by Counsel, original in French: “En sus des mesures
d’indemnisation et de satisfaction qui viennent d’être exposées, la République démocratique du
Congo demande à la Cour de dire et juger que les frais de procédure exposés par la RDC dans le
cadre de la présente affaire doivent être supportés par l’Ouganda.”).
1382 Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal,
Advisory Opinion, I.C.J. Reports 1973 (12 July 1973), p. 212, para. 98.
1383 Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land
and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Judgement, I.C.J.
Reports (25 Mar. 1999), para. 18; Diallo (2012), paras. 58-60; Construction of a Road in Costa
Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, para. 144.
1384 DRCM, para. 7.86 (Translation by Counsel, original in French: “de telles demandes sont
rarement présentées à la Cour”.).
1385 S. Rosenne & M. Shaw, Rosenne’s Law and Practice of the International Court (2016), p. 1320.
470
parties (i.e., States) appearing before the Court as equal sovereigns, both seeking
to advance their positions in the context of pacific dispute settlement. Only if the
Court were faced with a serious abuse of process by one of the parties might there
be a possibility of departing from the principle,1386 but such circumstances are not
present here.
10.51 Awarding costs in this case is inappropriate for additional reasons as well.
Throughout this Counter-Memorial, Uganda has demonstrated that the DRC’s
claims are unsustainable, built upon arbitrary and unreasonable assumptions, and
grounded in neither law nor practice. It is the DRC that has pursued baseless
reparations claims by failing to take seriously the core elements that the Court
expressly called upon the DRC to prove at this stage; namely, the specific harms it
suffered, the specific actions of Uganda that fall within the scope of the Court’s
general findings in 2005, the causal connection between those specific actions and
the alleged injury, and the valuation of that injury.
10.52 The lack of seriousness in the DRC’s approach is readily apparent in
comparing the amount sought in the course of settlement negotiations with Uganda
(approximately US$ 25 billion) and the amount it now seeks before the Court
(approximately US$ 13.5 billion). Neither figure is grounded in law or fact, and the
radical disparity between the two shows that it is the DRC that has been
disingenuous in pursuing reparations, not Uganda.
10.53 Finally, Uganda observes that the DRC’s request for costs is symptomatic
of all its reparation claims, which in their totality represent a harsh and punitive
claim that should not be countenanced. As discussed in Chapter 4, international
1386 See Kolb, The International Court of Justice (2013), p. 1003.
471
law precludes requiring a State to make reparation that exceeds its financial
capacity to pay, especially if it would cause serious injury to that State’s
population.1387 The magnitude of the DRC’s claims for reparation is not
commensurate with Uganda’s abilities and, if accepted, would inflict serious harm
upon Uganda and its people. Uganda is thus fully justified in resisting the DRC’s
claims and there is no basis for awarding the DRC’s costs, including attorneys’
fees, against it.
*
10.54 For the reasons set forth above, there no justification in fact or law for
granting the DRC the other forms of reparation it seeks, except only for its request
that simple interest be awarded in the event Uganda fails to pay any compensation
the Court may order within a reasonable period of time.
1387 Ethiopia’s Damages Claims (Final Award, 2009), para. 19; Eritrea’s Damages Claims (Final
Award, 2009), para. 19.
472
473
SUBMISSIONS
On the basis of the facts and law set forth in this Counter-Memorial,
Uganda respectfully requests the Court to adjudge and declare that:
1) the Court’s formal findings of Uganda’s international responsibility in
the 2005 Judgment constitute an appropriate form of satisfaction,
providing reparation for the injury suffered;
2) all other reparation sought by the DRC is denied; and
3) each Party shall bear its own costs of these proceedings.
Respectfully submitted,
____________________________
Mr. William Byaruhanga, SC
Attorney General of the Republic of Uganda
AGENT OF THE REPUBLIC OF UGANDA
6 February 2018
474
CERTIFICATION
I certify that the Annexes are true copies of the documents referred to.
____________________________
Mr. William Byaruhanga, SC
Attorney General of the Republic of Uganda
AGENT OF THE REPUBLIC OF UGANDA
6 February 2018
475
LIST OF ACRONYMS
A
ACLED Armed Conflict Location and Event Data Project
ADAR Association for the Development of Applied Research
AFDL Alliance des forces démocratiques pour la libération du
Congo (Alliance of Democratic Forces for the
Liberation of Congo)
ALC Armée de Libération du Congo (Movement for the
Liberation of the Congo)
ALiR Armée de Libération du Rwanda (Army for the
Liberation of Rwanda)
ANC Armée Nationale Congolaise (Congolese National
Army)
APC Action Permanente pour le Congo (Permanent Action
for the Congo)
APR Alliance pour la République (Alliance for the Republic)
C
CDR Crude Death Rate
COJESKI Collectif des organisations et associations des jeunes du
Sud-Kivu en RDC (Collective of Youth Organisations
and Associations of South Kivu in the DRC)
COMTRADE United Nations International Trade Statistics Database
D
DHS Demographic and Health Surveys
E
ECOSOC UN Economic and Social Council
EECC Eritrea-Ethiopia Claims Commission
F
FAC Forces armées congolaises (Congolese Armed Forces)
FAR Forces armées rwandaises (Rwandan Armed Forces)
476
FDD Forces pour la Défense de la Démocratie (Forces for the
Defense of Democracy)
FIDH International Federation for Human Rights
FLC Front de libération du Congo (Front for Congolese
National Liberation)
FNI Front national intégrationniste (Nationalist and
Integrationist Front)
FRPI Force de résistance patriotique de l’Ituri (Front for
Patriotic Resistance in Ituri)
G
GMM Generalized Method of Moments
H
HNTS Health and Nutrition Tracking Service
HSRP Human Security Report Project
I
ICCN Institut Congolais pour la Conservation de la Nature
(Congolese Institute for Nature Conservation)
ICESCR International Covenant on Economic, Social and
Cultural Rights
IMF International Monetary Fund
IRC International Rescue Committee
ITTO International Tropical Timber Organization
L
LORI Liberation of the Oppressed Race in Ituri
M
ML Mouvement de libération (Movement for the Liberation)
MLC Mouvement pour la libération du Congo (Movement for
the Liberation of the Congo)
477
MONUC Mission des Nations Unies en République démocratique
du Congo (United Nations Mission in the Democratic
Republic of Congo)
O
OCHA UN Office for the Coordination of Humanitarian Affairs
ODA Official Development Assistance
OECD Organization for Economic Co-operation and
Development
OLS Ordinary Least Squares
P
PLA Parti de libération des Walendu (Walendu Liberation
Party)
R
RCD Rassemblement congolais pour la démocratie (Rally for
Congolese Democracy)
RCD-Goma Rassemblement congolais pour la démocratie-Goma
(Rally for Congolese Democracy-Goma)
RCD-ML Rassemblement congolais pour la démocratie-
Mouvement de Libération (Rally for Congolese
Democracy-Liberation Movement)
RCD-N Rassemblement congolais pour la démocratie-National
(National Rally for Congolese Democracy)
RPF Rwandan Patriotic Front
S
SNEL Société nationale d’électricité (National Electricity
Company)
SOTEXKI Société Textile de Kisangani (Textile Company of
Kisangani)
SPLA Sudan People’s Liberation Army
U
UBOS Uganda Bureau of Statistics
478
UCDP Uppsala Conflict Data Program
UNCC United Nations Compensation Commission
UNDP United Nations Development Program
UNESCO United Nations Educational, Scientific and Cultural
Organization
UNHCR United Nations High Commissioner for Refugees
UNICEF United Nations Children’s Fund
UPC Union des patriotes congolais (Union of Congolese
Patriots)
UPDF Uganda’s People’s Defence Force
URA Uganda Revenue Authority
W
WHO World Health Organization
479
LIST OF ANNEXES
VOLUME II
UNITED NATIONS DOCUMENTS
Annex 1 U.N. Security Council, 2981st meeting, Resolution 687
(1991), U.N. Doc. S/RES/687 (1991) (8 Apr. 1991)
Annex 2 U.N. Security Council, 3004th meeting, Resolution 705 (1991)
(15 Aug. 1991)
Annex 3 U.N. Security Council, Council of the United NDateicoinsiso Cn otamkpeenn bsayt tihoen GCoovmemrnisinsigo n donu r6inthg Mthaer rcehs u1m99e2d, FUo.Nur.t hD Soecs. sSio/An,C a.2t 6th/1e9 2932r/d9 m(6e eMtianrg. , held 1992)
Annex 4 URe.Nsu. lStiencgu rfritoym C Iorauqn’csi lU, Cnloamwpfueln sInavtiaosni ofno ra Bndu sOincecsusp Laotisosne so f aKlusow aai tC wahuesere, Uth.Ne .T Draodce. ESm/AbCa.r2g6o/ 1a9n9d2 R/1e5la (t4e dJ aMn.e 1a9su9r3e)s Were
Annex 5 URe.Nco. mCmomenpdeantsiaotnios nM Caodme mbyi stshieo nP,a Rneepl oorf tC aonmd missioners CDoanmcaegrnesin ugp t htoe $F1i0rs0t, 0In0s0ta (lCmaetnetg oorf yI n“dCiv”id Culaali mClsa),i mUs. Nfo. rD oc. S/ AC.26/1994/3 (21 Dec. 1994)
Annex 6 U.N. Security Council, 3519th meeting, Resolution 986 (1995),
U.N. Doc. S/RES/986 (14 Apr. 1995)
Annex 7 USt.aNte. mHeunmt abny RMigrsh.t sM, Oarfyf iRceo boifn tshoen H, Uig.hN .C Hoimghm issioner, Commissioner for Human Rights (19 Sept. 1997)
Annex 8 Uth.eN P. aSneeclu orift yC Comoumnicssili,o Rneerpso rCt oanncde rRneincogm thmee Snedvaetniothn sI nMstaadlme ebnyt o“fC I”n dCivlaidimuasl) ,C Ula.Nim. Ds foocr. DS/aAmCa.g2e6s/ 1u9p9 t9o/ 1$11 0(204,0 J0u0n e(C 1a9t9e9g)o ry
480
Annex 9 U.N. Security Council, the Panel of Commissio Rneerpso Crto anncde rRneincgo mthmee Snedcaotniodn Isn Mstaaldmee bnyt of “E1” Claims, U.N. Doc. S/AC.26/1999/10 (24 June 1999)
Annex 10 U13.N30. S(2e0cu0r0i)ty, UC.oNu. nDcoilc, .4 S2/4R1EstS m/1e3e3t0in (g2, 0R0e0s)o (l5u tDioenc . 2000)
Annex 11 Uth.eN I.l Sleegcaulr Eityxp Clooiutantciioln, Roef pNoarttu orfa tlh Ree Psoaunrecl eosf aEnxdp eOrttsh eorn FUo.Nrm. Ds oofc W. Se/a2l0th0 1o/f3 D57e m(1o2c rAaptirc. 2R0e0p1u)b lic of the Congo,
Annex 12 Canladu Rdees Keaarbcehm, Tbha,e UD.eNm.Hoc.Cra.Rtic., RCeepnutrbel ifco or fD Coocnugmoe:n Ftartoimon IPnadpeepre Nndo.e n1c6e/2 t0o0 A0f (rJicuan’es 2F0i0rs1t) W orld War, WRITENET
Annex 13 Uof. NE.x Speerctusr oitny tChoe uInllceigl,a Al Eddxepnlodiutamti oton tohfe Nreaptuorrat lo Rf ethseo uPracneesl aCnodn gOot,h Uer. NF.o Drmosc .o Sf /W20e0a1lt/h1 o0f7 2th (e1 D3 eNmoovc. r2a0t0ic1 )R epublic of the
Annex 14 Uin.tNer. nGaetinoenraalll Ay swsreomnbglfyu,l Raecstsp,o Uns.Nib.i lDitoyc o. fA S/tRatEeSs /f5o6r/ 83 (28 Jan. 2002)
Annex 15 Uth.eN I.l Sleegcaulr Eityxp Clooiutantciioln, Foifn Nala rtuerpaolr tR oefs othuer cPeasn aenl do fO Ethxpere rFtso romns oSf/ 2W0e0a2l/t1h1 o4f6 t h(1e6 D Oemcto. c2r0a0t2ic) Republic of the Congo, U.N. Doc.
Annex 16 U14.N57. S(2e0cu0r3i)ty, UC.oNu. nDcoilc, .4 S6/9R1EstS M/1e4e5t7in (g2,0 R0e3s)o (l2u4ti oJann . 2003)
Annex 17 U.N.H.C.R., U.N.H.C.R. Global Appeal 2004, Uganda (31 Dec.
2003)
Annex 18 U14.N83. S(2e0cu0r3i)ty, UC.oNu. nDcoilc, .4 S7/6R1EthS m/1e4e8t3in (g2,2 R Mesaoyl u2t0io0n3 )
Annex 19 UCh.Na.i rSmeacunr oitfy t hCeo Punacniell, oLfe Ettexrp edratste odn 1 t5h eO Icltl.e 2g0a0l 3E xfrpolmoi ttahteio n of Natural Resources and Other Forms of Wealth of the
481
Democratic Republic General, U.N. Doc. S /o2f0 t0h3e/ 1C0o2n7g (o2 a3d Odrcet.s s2e0d0 3to) the Secretary-
Annex 20 U15.N46. S(2e0cu0r4i)ty, UC.oNu. nDcoilc, .4 S9/8R7EthS m/1e5e4t6in (g8, JRuenseo 2lu0t0io4n)
Annex 21 Uth.eN R. Gigehnt etora al ARsesmemedbyl ya,n Bda Rsiecp Parrainticoipnl feosr a Vnidc tGimusi doefl iGnreos sosn VViioollaattiioonnss ooff IInntteerrnnaattiioonnaall HHuummaann iRtairgihatns LLaaww, aUn.dN S. eDroiocu. s A/ RES/60/147 (21 Mar. 2006)
Annex 22 UIn.tNer. nEactoionnoaml iCc oavnedn Sanotc ioanl CEcoounnocmil,i cI,m Spolceimael natnadti oCnu lotfu trhael rReipgohrtsts: Csuobmmbiitnteedd bsye cSotantde,s t hpiarrdt,i efso uurntdhe arn adr tfiicftlhe sp 1e6ri oadnidc 17 oDfo tch.e E C/Cov.1e2n/aCnOt, DD/e5m (o1c4r Aatuicg .R 2e0p0u7b)l ic of the Congo, U.N.
Annex 23 UPr.Nes.i Sdeencut roift yth Ceo Suenccuirl,i t6y0 C5o8uthn cmile, eUti.nNg., DStoact.e Sm/ePnRt SbTy /t4h8e (22 Dec. 2008)
Annex 24 Dfle. eN ttoh eenscgawpee, ferde.s hL .c Donofblibcst, iUn .INtu.rHi .dCi.sRtr.i,c 3t 0(7,0 A00p rC. 2o0n0g9o)l ese
Annex 25 UD.eNm. oHcuramtiacn R Reipguhbtsli, cO offf itchee oCfo tnhge oH, i1g9h9 C3-o2m00m3i:s sRieopnoerr,t of the hMuampapnin rgi gEhxtes racnisde idnotecrunmateinotninagl hthuem manoistta rsiearnio luasw v icoolmatmiointtse do f bweittwhiene tnh Me taerrcrhit o1r9y9 o3f a tnhde DJuenme o2c0r0a3ti c(A Ruegp.u 2b0li1c0 o) f the Congo
Annex 26 Uof. NM. 2N3e rwebs eClleinotnr,e c, oDmRm Citomnegnot: t Uo .pNe.a ecnev toaylk ws e(l5c oNmoves. 2e0n1d3 )
Annex 27 USe.Ncu. rSiteyc Curoituyn Cciol u7n0c5i8l,t hS tMateeemtienngt, bUy. Nth.e D Porce.s ident of the S/PRST/2013/17 (14 Nov. 2013)
Annex 28 Uth.eN M. Saencduartiety U C.Nou. nSctailb, i7li1z5a0titohn m Meiestsiniogn, Tinh eth eex Dteenmsioocnr aotfi c RReEpSu/b2l1ic4 7o f( 2th0e1 4C)o (n2g8o M (Mar..O 2.0N1.4U). S.C.O.), U.N. Doc. S/
482
Annex 29 Charles Y 500,000 reafxulgeye,e Us a.Nnd.H a.Csy.lRu.m, U-segeaknedras h(1o8st Ds reecc. o2r0d1 5)
Annex 30 UCo.Nn.g Oo:f fWiceee fkolyr tHhue mCaonoirtdairniaatnio Unp odfa Hteu (m19an-2it3a rJiuann eA 2f0fa1i7rs) ,( D23R
June 2017)
Annex 31 Ure.mNa. rSkesc troet tahrey UGgeannerdaal ,S Tohlied Saerictrye Staurmy-mGite noenr aRle’fsu ogpeeens i(n2g3 June 2017)
Annex 32 UM.eNm. bSeercsu Srittrye sCso Nuenecdil ,f o7r9 9D8etmh oMcreaettiicn gR,e Speucbulricit yo fC Coounngcoil to Hold Fair, Free, Inclusive Elections without Further Delay,
U.N. Doc. SC/12907 (11 July 2017)
Annex 33 Ccraotwhedreinde c Wlasascrhoioamyas, iUn. NU.gHa.nCd.aRn. ,s Echaogoelr (r1e1fu Sgeepest. cram 2017)
Annex 34 Uin. ND.eHm.Coc.Rra.,t iUc .RNe.pHu.bCl.iRc .o wf aCronnsg oof (w2o4r Osecnti.n 2g0 1d7is)p lacement
UGANDA GOVERNMENT DOCUMENTS
Annex 35 Uing Tahned aU, gAacnt d1a2 ,G thaeze Uttge,a nNdoa. 3B6u,r Veaoul. oXf CSIt,a tAiscttisc sS Aupcpt,l epmubelnist hNeod. 7 (11 June 1998)
Annex 36 Letter from Kofi Annan, U.N. Secretary General to Yoweri
Kaguta Museveni, President and Minister of Defence,
Republic of Uganda (4 May 2001)
Annex 37 Uth.eN R. Sepeucubrliicty o Cf Uougnacnidl,a T thoe T Rhees pAodndseen dbuy mth Re eGpoovret ronfm theen t of PRaesnoeul rocf eEs xapnedr tOs othne rth Feo Irlmlesg aolf EWxepallothit aotfi othne o Df eNmaotucrraalt ic RDeepcu. b2l0ic0 1o)f the Congo (DRC), U.N. Doc. S/2001/1163 (4
Annex 38 Uganda Bureau of Statistics, Statistical Abstracts (2002,
2004, 2005)
483
Annex 39 Letter from Imelda Atai Musana, Executive Director, Uganda
Bureau of Statistics to the Solicitor General, Ministry of
Justice and Constitutional Affairs, UBOS/30/30 (26 Oct.
2017)
Annex 40 Uganda Bureau of Statistics, Exports and Imports (1981-2016)
DRC GOVERNMENT DOCUMENTS
Annex 41 République du Zaire, Ministère Nationale, Enquête Nationale su dru l aP lSaintu eatt iRoenc doenss tEruncfatinotns et des Femmes au Zaire en 1995, Rapport Final (Feb. 1996)
Annex 42 Rdeé pCurboliisqsuaen cDeé emt odcer aRtéiqduuec tdioun C doen lgao P, Dauovcruemtée, nDte duex ilèam Ster atégie Génération, 2011-2015, Vol. I (Oct. 2011)
DRC CASE LAW
Annex 43 Songo Mboyo (MP et PC c. Bokila et consorts), RP
084/2005 (Tribunal Militaire de Garnison de Mbandaka, 12
Apr. 2006)
Annex 44 Waka-Lifumba (MP et PC. c. Botuli), RP 134/2007
(Tribunal Militaire de Garnison de Mbandaka, 18 Feb. 2007)
Annex 45 BThaosemle’s e et tc coonnssoorrtsts ()M, RPP e 1t 6P7C/0 c9. aBnads eRleM LPu t9u4l4a/ aMliBasM C/0o9lo nel (Tribunal Militaire de Garnison de Kisangani, 3 June 2009)
Annex 46 Kakado (MP et PC c. Kakado Barnaba), RP 071/09,
009/010 and RP 074/010 (Tribunal Militaire de Garnison de
Bunia, 9 July 2010)
Annex 47 MMaanniirraagguuhhaa eatl iSaisb Komazaunnag (uM ePt c eotn PsoCr t(s4)0, 0R)P c .2 J7e5a/0n9 B, osco 5de2 1G/1a0rn RisMonP d 5e8 B1/u0k7a vanud, 1165 7A3u/gK. M20C1/11)0 (Tribunal Militaire
Annex 48 Kimbanguistes (MP et PC Kumba et consorts- MP et PC c.
Mputu Muteba et consorts, RP 11.154/11.155/ 11.156 (Tribunal
de Grande Instance de Kinshasa/ Kalamu, 17 Dec. 2011)
484
Annex 49 Mupoke, also known c. Kabala Mandumbaa es tK caobnasolar test; cMoPns eotr tPsC (M c.P K eat b1a0l7a PC BMuaknadvuum, b1a5) O, RctP. 2700182/1)2 (Tribunal Militaire de Garnison de
VOLUME III
REPORTS
Annex 50 IRnetseurnltast iforonmal FRievsec Mueo Crtoamlitmy iStuterev,e Myso bryta tlhitey IiRnC E (aMstearyn 2 D00R0C):
Annex 51 LMeosr Rtaolibtye ritns, EInatseternrnat iDoenmalo Rcreastciuce R Cepoumbmlicit toefe t hHee aClothn Ugon:i t, Results from 11 Surveys (2001)
Annex 52 RAlelpeugbaltiico nosf iUntgoa nIldleag, aJul dEixcpialol iCtaotmiomn iosfs iNoant oufr aInl qRueisroyu irncteos aCnodn gOot h2e0r0 F1o, rFminsa olf R Wepeaolrtth ( iNno tvh.e 2 D00e2m)o cratic Republic of the
Annex 53 URe.Kgi. oAnl la nPda rGtye Pnoarcliidaem Pernetvaeryn tGiorno,u Cp uorns ethde b Gy rReiacth Leask: eWs ho BReenpeufbitlsic f roof mth Re eCsoonugrcoe? E(Nxpolvo.i t2a0t0io2n) in the Democratic
Annex 54 IRnetseurnltast iforonmal aR Nesactuioen Cwoidmem Siuttrevee,y M (2o0r0ta3l)i ty in the DRC:
Annex 55 IPnetaecrnea?t,i IoCnGal ACrfirsicisa GRreopuopr,t ENthoi. o6p8i a(2 a4n Sd eEprti. t2re0a0:3 W) ar or
Annex 56 Binu trhnee tD Ienmstoitcurtea,t iIcn tReernpautbiolinca ol fR thesec Cueo nCgoom: Rmeisttuelets, Mfroomrt aal ity Nationwide Survey (2004)
Annex 57 HReupmuabnli cR iogfh tthse W Caotncgh,o T (h2e0 0C5u)r se of Gold, Democratic
485
Annex 58 B. Coghlan, R. Brennan, et al., “Republic of Congo: a NationwidMe Sourrtavleiyty” ,i Tn hthe eL Danecmeto,c Vraotli.c 367, No. 9504 (7 Jan. 2006)
Annex 59 Danedm Gocrorawtitch RSterpautbegliyc Poaf ptheer (CJuolnyg 2o0, 0P6o)v erty Reduction
Annex 60 Ithnete Drneamtioocnraal tRice Rsceupeu Cbloicm omf iCttoene,g Bo:u Arnne tO Inngstoiitnutge ,C Mriosirst a(l2i0ty0 7in)
Annex 61 L. Wyler, P. Sheikh, International Trade in Wildlife: Threats and
U.S. Policy, CRS Report for Congress, RL34395 (22 Aug.
2008)
Annex 62 Adu. rLaanmt lbeesr ttr, oLu.b Lleosh ldée- T1a9r9t,8 L-2a0 s0u4r:m uonret aelsittiém aaut iCono ndgeos (dRéDcèCs )e n sduérmnoogmrbarpeh,i esc (iOenctti.f i2q0u0e8m) ent fondée à partir des méthodes de la
Annex 63 HReepaoltrht :a Rnde -Nexuatmritiinoinn gT mraockrtianlgi tSy efrrvoimce t h(He NcoTnSfl)i,c tP iene rt hRee view Democratic Republic of Congo, 1998-2006 (2009)
Annex 64 Hofu Wmaarn” ,S Heucumraitny SReecpuorritt yP Rroejpeocrt,t (“2P0a0rt9 I-I2,0 T1h0e) Shrinking Costs
Annex 65 MDéinmisotcèrraet idqeu ela d Juu sCtiocneg eot, d&e sP DNrUoiDts, HMuomniatoinrsin, gR éjupduibcliiaqiuree j2u0d1i0c-ia2i0r1e1 a, uRxa cpapso drte svuiro lleens cdeosn sneéxeuse rlleelsa tàiv le’Es sàt ldae r léap onse République démocratique du Congo (2010-2011)
Annex 66 MOvaerriev iCewh êonfe c, oTrrraunpstpioanre anncdy aInnttei-rcnoartirounpatilo, nU i4n Ethxep eDret mAoncsrwaetirc: Republic of Congo (DRC) (8 Oct. 2010)
Annex 67 Mréparatrina tEiokno dfoe sI ncgraimnyeas ,i Antveorncaattsi osnaanus xf reonn tdirèoreits ,c Lonag olais (2014)
486
Annex 68 Jacques B. Mbokani, Open Society Africa (OSISA), La jurisprudence c Ionnitgioatliavies ef oern Smoauttihèerren d e jcurrimideics tdioen dsr moiitl iitnatierrensa ctoionngaoll.a Uisnees aenn aalpyspeli dcaesti odné cdiusi oSntast udet sd e Rome (2016)
ARTICLES & BOOKS
Annex 69 Hanedn rrye tMre.a St otafn Elemyi, nI,n G Doavrekrensot rA ofrf iEcaq:u aOtro rthiae, qVuoels. tI,I r (e1s8c9u0e )
Annex 70 D. Rice, B. Cooper, “The Economic Value of Human Life”,
American Journal of Public Health, Vol. 57, No. 11 (Nov.
1967)
Annex 71 JL. iSn.k Linagn dTehfeeoldry, Eto. SPerascktiince, ”“,T Ahme eErcicoanno mJoicu rVnaallu oef o Pf uLbilfiec: Health, Vol.
72, No. 6 (June 1982)
Annex 72 Al’Iungduésptee nMdaaunrceel ,( L19e 9C2o) ngo de la Colonisation Belge à
Annex 73 G“Aepoprgeensd iNx zOonneg:o Hlai-sNtotrailcaajal ,B Wacaksghrinogutnodn, OFrfofimce L oeno Apoflrdic tao, Mobutu”, Zaire: A Nation Held Hostage (1992)
Annex 74 Koen Vlassenroot, “The Promise of Ethnic Conflict:
Militarisation and Enclave-Formation in South Kivu” in
ConfliCt and EthniCity in CEntral afriCa (D. Goyvaerts, ed.,
2000)
Annex 75 E. Pay & D. Goyvaerts, “Belgium, the Congo, Zaire, and
Congo: A Short History of a Very Shaky Relationship” in
ConfliCt and EthniCity in CEntral afriCa (D. Goyvaerts ed.,
2000)
Annex 76 G“N. oKniraekfworammear s&: DJ. eCmhoecvraaltliice rR, Tephueb Wlico rolfd tBhea nCko, ngo”, Aid and
487
Reform in Africa: Le Devarajan, D. Dollar,s sTo. nHso flrmomgr eTnen, eCdas.s,e 2 S0t0u1d)i es, (S.
Annex 77 F. Missier & O. Vallee, “Du Scandale Zaïrois au Congo
Gemmocratique” in ChassE au diamant au Congo/ZairE (L.
Monnier, B. Jewsiewicki, G. de Villers eds., 2001)
Annex 78 APodlaitmic aHl oWcheseckhlyi,l dV, o“lC. 3o6ng, oN’os .M 4 a(n2y7 PJlaunn.d- e2r eFres”b,. E2c0o0n1o) mic &
Annex 79 KEl.e Hphilalmntas nin S Gmairtham, “bSat aNtuast ioofn Nalo Prathrker, nD Wemhoitcer aRtihci nRoesp aunbdli c of 2C0o0n1g)o , During the Wars”, Pachyderm No. 31 (July-Dec.
Annex 80 Lth.e M Oukbaaplia mFaau, nJa. lJ .R Mesaeprivlaen, gDae,m “Locersast iEcl eRpehpaunbt lSicl aoufg Chtoenrg ion, with Operation Tango”, Pachyderm, No. 31 (July-Dec. 2001)
Annex 81 DAfernicnaisn Faanrirmelal,l Aauscsoticoina tderda Pwrse s2s,0, 0B0il l(i2n2g sJ uGnaez 2e0tt0e2, )
Annex 82 TAhfriieqrurye VCoirnctoeumlopno,r “aLin’Iet,u rVi oolu. 2L0a0 G5/u3e, rNreo .A 2u1 P5 lu(2ri0e0l”5, )
Annex 83 JPoehaacne :P Iotuttriie,r D, “eRmeopcrreasteinc tRateiopnusb loicf Eofth Cnoicnigtoy” i,n A tfhreic Saena Arcffha fiorsr Vol. 109, No. 434 (27 Nov. 2009)
Annex 84 Eth.e K Diseamnogcarnai t&ic FR.e Spcuobtlti cB oofb ,t hHe iCstoonrigcoa l( 2D0i1c0ti)o nary of
Annex 85 AStlaetxe bVueilitd, iInngt eirnv tehnet iDone maso cInradtiirce cRte Rpuulbel:i cC oivf itlh We Caro anngdo (2010)
Annex 86 François Ngolet, Crisis in the Congo (2011)
Annex 87 Sarah C. P. Williams, “The Elephant in the Womb”, Science
(19 June 2012)
488
Annex 88 Dan Fahey, Rift Valley Institute, and Ethnicity in North-eastern C “oIntguori”:, GUosladl,a mLaan d, (P2r0o1je3c)t : Understanding Congolese Armed Groups
Annex 89 David Van Reybrouck, Congo: The Epic History of a People
(2015)
Annex 90 FRréapnuçboliisq uEem Dizéemt oKcirsaatniqguane id, uG Cueornrgeos C19iv6i0le-s2 0d1a0n s( 2la0 15)
Annex 91 Scoesbta ostfi amni nGearatilm sum, uIgngstliitnugte i nfo trh Se eDcuRrCit y( 1S1t uJdaine.s 2, 0T1h6e) true
ONLINE SOURCES
Annex 92 ITRhIeN U, gSapnedciaanl pRoespiotirot no n(3 t hMea Irt.u 2r0i 0C0l)a shes Part II:
Annex 93 IRIN, 15,312 foreign forces withdrawn so far, says U.N. (2 Oct.
2002)
Annex 94 M20., 0M0u0t unleiw, e Cd.o Vn.g Toalens, eU r.Nef.uHg.eCe.sR f.r,o Umg Iatnudria r ceoguionnts ( c1l9o sMe atoy 2003)
Annex 95 MUg. aMnduatu:l i“, Seodl.d Vie. rTsa bne, fUo.rNe .uHs.,C d.eRa.t,h C boenhginodle sues ”m (a2r1c hM toa y 2003)
Annex 96 WWHorOld VHeerablathl AOurtgoapnsiyz aIntisotnru, mVeernbta (l2 A01u2to)p sy Standards: 2012
Annex 97 World Health Organization, Life expectancy, Data by country
(6 June 2016)
Annex 98 OdoEeCs DG DInPs ipgehrt sc, aDpeitbaa tteel tlh ues Iasbsuoeust, hSotuastieshtiocladls I’n msiagthetrsi:a lW wheallt- being? (6 Oct. 2016)
Annex 99 Tprimod uCcatl:l eAnn, IEnctoernnoamtiyo’nsa Al lMl (o2n9e tJaurlyy F20u1n7d), Gross Domestic
489
Annex 100 Laurent Oussou, M.O.N.U.S.C.Invite les Communautés en IturOi à., DLaia Floogrcuee rd ep olau rM laO NPaUixS C(1O1 Aug. 2017)
Annex 101 BBC, The Story of Africa, Independence, Case Study: Congo
Annex 102 Uppsala University, Department of Peace and Research,
Definitions: Battle Related Deaths
Annex 103 FocusEconomics, What is GDP per capita?
Annex 104 UAbpopusat lUa CUDniPv ersity, Department of Peace and Research,
Annex 105 UOpnpe-s asliad eUdn Vivioerlesintyce, Department of Peace and Research,
Annex 106 UFApQps, aHlao wU nAivree rUsiCtyD, DP eDpaarttam Ceonltl eocft Pede?ac e and Research,
Annex 107 World Wildlife Fund, African elephants
Annex 108 ISntatetrisntaictiso nal Tropical Timber Organization, Biennial Review
MISCELLANEOUS
Annex 109 PUrnoifveesrssoitry S, Airs Pseasuslm Ceonltl ioefr tahned I Dmrp aAcnt koef Hthoee Uffglearn, dOaxnf oMrdil itary IOncvto. l2v0em17e)n t in the Democratic Republic of the Congo (20
Annex 110 C19a9lc8u alantde d2 NJuunmeb 2e0r0 o3f (CSiovuilricaen: DUe.Nat.h Ms baeptpwineegn R 7e pAourgt)u st