Uganda's observations on the experts report dated 12 December 2020

INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO
DEMOCRATIC REPUBLIC OF THE CONGO
v.
UGANDA
UGANDA’S OBSERVATIONS ON THE EXPERTS REPORT
DATED 19 DECEMBER 2020
15 FEBRUARY 2021
i
Table of Contents
Introduction ............................................................................................................. 1
I. Observations on the Urdal Report ............................................................... 5
II. Observations on the Guha-Sapir Report ................................................... 11
A. Dr Guha-Sapir’s “Excess Deaths” Methodology Is Entirely
Inapposite to These Judicial Proceedings ......................................14
B. Properly Applied, Dr Guha-Sapir’s Methodology Would Suggest
There Were No Excess Deaths During the Relevant Period..........16
C. Dr Guha-Sapir’s BCDR Estimate Is Outdated...............................19
D. Dr Guha-Sapir’s Estimate of the PCDR Is Too High ....................21
E. The Experts’ Estimated Reparation for Indirect Deaths Improperly
Assumes That Uganda Is Responsible for All the Deaths
Attributable to the Conflict ............................................................25
F. The Experts’ Estimated Reparation for Indirect Deaths Is Ultra
Petita ..............................................................................................27
III. Observations on the Senogles Report ....................................................... 29
A. Injury to Persons ............................................................................29
1. The UNCC Mass Claims Process Has No Application in
This Case ............................................................................33
2. The Senogles Report Misapprehends and Misapplies the
UNCC’s Methodologies.....................................................41
B. Property Damage ...........................................................................49
1. Property Losses in Ituri ......................................................51
2. Property Losses in Areas Other than Ituri..........................65
IV. Observations on the Nest Report .............................................................. 81
ii
A. Parts of the Nest Report are Ultra Petita .......................................82
B. The Estimates Recommended in the Nest Report Are Unfounded
and Arbitrary ..................................................................................83
1. Quantity of Resources Produced and Their Geographic
Distribution ........................................................................85
2. Annual Average Prices of Resources .................................87
3. Proxy Taxes for Estimating the Exploitation Value ..........90
1
INTRODUCTION
1. Pursuant to the Court’s letter dated 21 December 2020 (no. 154286)
transmitting the report prepared by the Court-appointed experts, as well as the
Court’s letter dated 18 January 2021 (no. 154482) extending the applicable timelimit,
Uganda respectfully submits these observations on the 19 December 2020
Experts Report on Reparations (“Experts Report”).
2. Uganda is grateful for the opportunity to present these observations.
It is also grateful for the Court’s flexibility in adjusting the time-limit for this
submission in light of the complexities introduced by the recent Presidential
election in Uganda.
3. Insofar as the Experts Report actually “contains four reports, each
one presenting an expert opinion regarding reparation estimates on the topics
described in the Terms of Reference”, and insofar as “[e]ach report is distinct,”1
Uganda will offer its specific observations on each of the four reports in the four
sections that follow this Introduction. Uganda here offers only five brief comments
of a general nature that relate to the content of the Experts Report as a whole.
4. First, Uganda notes that none of the four distinct expert reports that
together comprise the Experts Report appear to take any account of the points
detailed in Uganda’s February 2018 Counter-Memorial or in its January 2019
Comments on the DRC’s Responses to the Questions from the Court Dated 11 June
2018. As Uganda will detail more fully below, the Experts Report appears to take
many, if not all, of the DRC’s allegations with respect to the existence and extent
1 Experts Report on Reparations for The International Court of Justice: Case Concerning Armed
Activities on the Territory of the Congo, The Democratic Republic of the Congo v. Uganda (19
December 2020) (hereinafter “Experts Report”), para. 8.
2
of damages at face value without regard to Uganda’s methodical dismantling of the
DRC’s claims and evidence in its earlier pleadings. Indeed, there is not a single
mention of Uganda’s written pleadings on reparation anywhere in the body of the
Experts Report. In Uganda’s view, the experts’ failure to take account of its
submissions in formulating their recommendations on reparation raise serious
concerns regarding their thoroughness and their impartiality.
5. Second, the Introduction to the Experts Report purports to
summarise the amount of reparation they recommend in Table A presented
therein.2 Uganda will show below why each of the component entries in that table
is unsupported by reliable, competent, or often any, evidence. On its face, however,
the exorbitant and—with respect, absurd—figures presented raise grave concerns
about the rigour and objectivity with which the experts approached their mandate.
Table A purports to summarise the amount of reparation the experts recommend at
US$ 74.966 billion dollars.3 Not only is this more than five and a half times the
already extremely excessive amount the DRC itself seeks, and therefore ultra
petita, it is substantially more than 400 times the amounts of compensation the
Eritrea-Ethiopia Claims Commission (“EECC”) awarded to each side in the context
of a far more intense conflict occurring during roughly the same time period on the
same continent.4
6. Third, as will be apparent from the analysis to follow, the Experts
Report often admits that the DRC has provided no evidentiary basis for a category
of claims, laments the lack of such evidence, and then simply conjures up a
2 Experts Report, p. 4, Table A.
3 Ibid.
4 Counter-Memorial of Uganda on Reparation (6 Feb. 2018) (hereinafter “UCM”), para. 1.28.
3
proposed figure for compensation.5 The experts often appear essentially to
approach their mandate as one in which they were charged with reaching decisions
ex aequo et bono—an approach to decision-making beyond the mandate of the
Court.
7. Fourth, Uganda considers that nothing contained in the Experts
Report can vitiate the need for the Court to make its own findings of fact with
respect to the existence, extent and valuation of the damages alleged by the DRC.
As the Court itself noted in its 12 October 2020 Order appointing the experts, “it
will be for the Court to determine what weight, if any, to be given to the
assessments contained in the expert report”.6 The experts themselves recognise this
essential point in the Introduction to their Report, where they state: “It remains for
the Court to make its own legal findings on this matter and hence to derive its own
computations of any awards of damages.”7 Uganda considers this proviso all the
more critical in light of the many concerns about the accuracy and reliability of the
Experts Report detailed below.
8. Fifth, and finally, in an effort to best assist the Court, Uganda has
endeavoured to be as concise yet comprehensive as possible with these
observations given the time available to it. Nevertheless, for the avoidance of
doubt, Uganda submits these observations without prejudice to its right to raise
5 See, e.g., Experts Report, para. 162 (noting “no practicable evidentiary basis on which to assess
the claims put forward,” then noting “these unfortunate circumstances,” and finally using an
unexplained and apparently arbitrary “evidentiary discount” to come up with an amount of
compensation).
6 Court’s Order of 12 October 2020, p. 3.
7 Experts Report, para. 12.
4
further issues, questions, doubts or any other concerns about the Experts Report at
the oral hearings in this case, currently scheduled to begin on 19 April 2021.8
8 For the record, Uganda also maintains in full its objections to the Court’s decision to request expert
opinions in the first place. For all the reasons previously expressed, Uganda considers that the
decision to appoint experts in the context of this case was inappropriate and inconsistent with its
rights under the Court’s Statute and Rules, and under international law more generally.
5
I. OBSERVATIONS ON THE URDAL REPORT
9. The first of the four reports included in the Experts Report is entitled
“Loss of Life: Conflict Deaths” and was prepared by Dr Henrik Urdal (“Urdal
Report”). In his report, Dr Urdal attempts to estimate the number of “lives lost as
a direct result of the armed conflict, and covers armed conflict events that took
place in the [DRC] between 1 August 1998 and 2 June 2003.”9 He does so by
examining what he terms “the authoritative conflict data collected by the Uppsala
Conflict Data Program (UCDP)”,10 a data programme hosted by the University of
Uppsala Department of Peace and Conflict Research.
10. Uganda can be brief insofar as the Urdal Report is concerned. In it,
Dr Urdal undertakes much the same exercise that Uganda itself conducted and
presented to the Court in its Counter-Memorial. He also comes to much the same
result. The Court may recall that in its 2018 Counter-Memorial, Uganda undertook
to examine the UCDP database for purposes of consulting a neutral source to
“confirm the inflated nature of the DRC’s claims”11 concerning the alleged losses
of life.
11. Based on that examination, Uganda determined that the UCDP data
set suggests that the “best estimate” of the total number of deaths resulting from
the conflict between August 1998 and June 2003 was 29,376, only 211 of which
(0.7%) were linked to Uganda.12 Importantly, these numbers include both civilian
9 Experts Report, para. 13.
10 Ibid., para. 14.
11 UCM, para. 5.63.
12 Ibid., para. 5.65.
6
and military deaths.13 (By way of comparison, the database suggests that there were
9,420 civilian and rebel deaths (i.e., 32%) linked to the DRC military.14)
12. When Uganda limited the results to civilian deaths, the subject of
the Court’s Terms of Reference, the numbers were smaller still. Specifically,
Uganda’s analysis of the UCDP data suggested that in total there were 13,593
civilian deaths during the relevant period, of which 32 (i.e., 0.2%) were linked to
Uganda.15 (Again, by way of comparison, the UPCD database links 1,429 civilian
deaths to the DRC military (i.e., 10.5%).16)
13. The Urdal Report comes to much the same conclusions as Uganda
on the total number of deaths and the number of civilian deaths reflected in the
UCDP data set. Dr Urdal concludes that it shows that “a total of 28,981 individuals
lost their lives in armed conflict events in the Democratic Republic of the Congo
during this time period.”17 “Out of this total number of direct deaths, 14,663 were
civilians.”18
14. The differences between the numbers Uganda and Dr Urdal derived
from the UCDP data set are comparatively modest: 29,376 total deaths (Uganda)
vs. 28,981 (Dr Urdal); 13,593 total civilian deaths (Uganda) vs. 14,663 (Dr Urdal).
13 UCM, para. 5.65.
14 Ibid., para. 5.66.
15 Ibid., para. 5.67.
16 Ibid., para. 5.68.
17 Experts Report, para. 14 (emphasis in original).
18 Ibid.
7
15. Uganda is unable to explain these slight differences. It may be that
they result from updates to the UCDP data set during the intervening period or
some other factor. In any event, these discrepancies (such as they are) are
immaterial, particularly since Uganda and Dr Urdal agree on the number of deaths
that the UCDP data suggest are linked to Uganda. Exactly like Uganda, Dr Urdal’s
analysis of the UCDP database suggests that a total of 211 deaths, among which
were 32 civilians, “are recorded as having involved troops of the Government of
Uganda as one of the actors.”19
16. Aside from observing the consistency between its own and Dr
Urdal’s analysis of the UCDP data, Uganda will confine itself to just four brief
additional points for the Court’s consideration.
17. First, unlike Dr Urdal, Uganda also analysed another similar
database: that maintained by the Armed Conflict Location and Event Data Project
(“ACLED”), housed at the University of Sussex in the United Kingdom.20
Although not identical to the numbers derived from UCDP, the results of Uganda’s
examination of the ACLED database were again broadly similar. Focusing for
present purposes only on civilian deaths, the ACLED database suggests that during
the relevant period there were 8,012 civilian fatalities, of which 117 (1.5%) were
caused by one-sided violence perpetrated by Uganda.21
18. Second, unlike Dr Urdal, Uganda also examined the UN Mapping
Report prepared under the auspices of the UN’s Office of the High Commissioner
for Human Rights for purposes of documenting serious violations of human rights
19 Experts Report, para. 39.
20 UCM, paras. 5.69-5.71.
21 Ibid., para. 5.71.
8
and international humanitarian law that took place in the DRC between March 1993
and June 2003.22 Here too, the numbers, at least in terms of scale, are broadly
similar to those derived from the UCDP and ACLED databases.
19. Uganda located every instance where the UN Mapping Report links,
whether directly or indirectly, one or more civilian deaths to Uganda in the period
between 7 August 1998 and 2 June 2003, and included a compilation of all such
instances to its Counter-Memorial as Annex 110.23 Adding the reported figures
together, the UN Mapping Report suggests that the total number of civilian deaths
for which there is even a “reasonable suspicion” that they resulted from conduct in
which Uganda may have been involved is approximately 2,300.24
20. Third, taken together, the numbers from the UCDP and ACLED
data, and from the UN Mapping Report, underscore the excessive and unreasonable
nature of the DRC’s claims—a point the DRC inadvertently admits. Specifically,
in its Memorial, the DRC argues that international reports, including the UN
Mapping Report, are important because they provide the correct order of magnitude
for assessing the scope of the harms it allegedly suffered. About such reports, it
states:
“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.”25
22 UCM, paras. 5.72-5.76.
23 Ibid., Annex 110.
24 Ibid., para. 5.76.
25 Memorial of the Democratic Republic of Congo on Reparation (Sept. 2016) (hereinafter
“DRCM”), para. 1.39 (Translation by Counsel, original in French: “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”) (emphasis added).
9
21. Viewing the results of the above analyses in light of the DRC’s
admonition only underscores just how inflated the DRC’s claim that Uganda is
responsible for 180,000 civilian deaths is.
22. Fourth, although Uganda and Dr Urdal largely agree on the number
of civilian deaths suggested by the UCPD data set, they very much disagree on the
implications for the reparations Uganda should pay. Dr Urdal calculates the
quantum of reparation that he recommends Uganda pay by multiplying the total
number of civilian deaths in the DRC during the relevant period (which he says is
14,663) by the relevant compensation figures suggested by Mr Senogles in his
report without regard to any attribution to Uganda.26 In other words, Mr Urdal
recommends that Uganda pay for each and every civilian death during the conflict
without regard to whether or not the relevant events are, to use his words, “recorded
as having involved troops of the Government of Uganda as one of the actors.”27
Uganda considers this plainly untenable.
23. As it previously explained, and as the Court well knows in any
event, the conflict in the DRC was extraordinarily complex and involved the armies
of at least nine countries and 21 major irregular armed groups, not to mention a
larger number of smaller irregular groups.28 In its 2005 Judgment, the Court itself
specifically 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
26 In his report, Mr Senogles suggests US$30,000/person for targeted deaths and US$15,000/person
for collateral victims. Experts Report, paras. 106, 109. Uganda submits that neither figure is
appropriate to the circumstances of this case for the reasons explained in Section III below.
27 Ibid., para. 39.
28 UCM, paras. 2.49-2.55.
10
population.”29 In that context, the Court equally made clear that at this stage of the
proceedings, the DRC would be required to “prove the exact injury that was
suffered as a result of specific actions of Uganda constituting internationally
wrongful acts for which it is responsible.”30
24. In such circumstances, there is no plausible basis on which to
recommend that Uganda pay for each and every civilian killed during the conflict
no matter where, no matter when and no matter who was responsible for the death.
At most, Uganda can only be responsible to pay reparation for the number of
civilians reported killed in incidents in which it was alleged to be involved. And,
as stated, Dr Urdal and Uganda agree on what the UCDP data set suggests that
number to be:31
29 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. 221.
30 Ibid., para. 260.
31 Dr Urdal also indicates that the UCDP data set suggests that there were 5,769 civilian deaths in
Ituri during the relevant period, including the 32 reported killed in incidents in which Uganda was
involved. Experts Report, para. 29 & Table 1.2. Uganda recognises that, having been found an
occupying power in Ituri, it was under an obligation of due diligence “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”. Armed Activities (2005),
para. 178. There is, however, nothing in the UCDP data set or the Urdal Report, or anywhere else
in the record before the Court for that matter, on which a fact-finder could conclude that Uganda
could have prevented these deaths.
11
II. OBSERVATIONS ON THE GUHA-SAPIR REPORT
25. The second of the four reports included in the Experts Report is
entitled “Conflict Related Excess Deaths” and was prepared by Dr Debarati Guha-
Sapir (“Guha-Sapir Report”). In her report, Dr Guha-Sapir offers an extraordinary
estimate of the number of deaths that she says can be attributed to the conflict in
the DRC between 1998 and 2003:32 4,987,756.33 Subtracting the number of direct
deaths stated in Dr Urdal’s report (28,981) from this figure, she arrives at an
estimate of 4,958,775 indirect deaths34 attributable to the conflict.35
26. In Table A in the Introduction to the Experts Report, this number is
then multiplied by US$ 15,000—the valuation for collateral deaths recommended
32 The Court defines “the relevant period” as “between 6 August 1998 and 2 June 2003”. The Court’s
Order of 8 September 2020, para. 16(3). Throughout her report, however, Dr Guha-Sapir merely
refers to the period between 1998 and 2003 without specifying the relevant months, raising the
possibility that her estimate might include the entire years of 1998 and 2003. See Experts Report,
paras. 55, 71, p. 28 Table 2.2, p. 29 Figure 2.3, p. 31 Figure 5. Indeed, at one point in her report,
she suggests that she is making estimates for a full five-year period, which is not accurate because
the relevant period is approximately two months shorter than a full five years. See ibid., para. 63.
33 Ibid., para. 71.
34 When comparing usage across the four individual reports, the Experts Report is inconsistent in
its use of the terms “indirect deaths” and “excess deaths”. Uganda’s understanding is that “excess
deaths” in the Experts Report refers to all the deaths attributable to the conflict, and thus equals the
sum of “direct deaths” (also called “excess direct deaths”) and “indirect deaths” (also called “excess
indirect deaths”) attributable to the conflict. This understanding would be consistent with Dr Guha-
Sapir’s explanation of the three notions at paragraph 42 of her report, as well as her Table 2.2 and
Figure 5. See ibid., para. 42, p. 28 Table 2.2, p. 31 Figure 5. Nevertheless, paragraph 10 and Table
A of the Experts Report employ the term “excess civilian deaths” to refer to Dr Guha-Sapir’s
estimate of “excess indirect civilian [deaths]”. Compare ibid., para. 10, p. 4 Table A, with ibid.,
para. 71. These two notions (“excess civilian deaths” and “excess indirect civilian deaths”) are not
the same, as Dr Urdal notes that there were 14,663 excess direct civilian deaths. Ibid., para. 14.
35 Ibid., para. 71.
12
by Mr Senogles36—to produce an astronomical estimate of more than US$ 74
billion due as reparation for indirect deaths.37
27. Uganda will show why the US$ 15,000 figure Mr Senogles
proposes is not appropriate in its observations on his report below. For present
purposes, Uganda will focus on showing that Dr Guha-Sapir’s estimate for the
number of deaths attributable to the conflict is wholly unreliable. Indeed, her
estimate is more than 12 times greater than the one the DRC itself offers in its
Memorial,38 and almost 25 times greater than another, authoritative estimate for
this statistic.39
28. Dr Guha-Sapir’s exaggerated numbers are easily explained. Her
entire analysis is premised on two highly uncertain variables for which she has
chosen highly questionable values. In particular, under Dr Guha-Sapir’s “excess
deaths” methodology, she purports to estimate the number of deaths attributable to
the conflict by comparing figures for the nominal death rate during the conflict
(referred to as the posterior crude death rate (“PCDR”)) with a hypothetical death
36 Ibid., paras. 71, 109.
37 Ibid., p. 4, Table A.
38 DRCM, para. 2.70 (“Given the carefulness that has to be observed in a legal proceeding, the DRC
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.”). It is true that Dr Guha-Sapir applies the DRC’s 10% coefficient in
her Table 2.2 “[t]o make [her] estimates roughly comparable to those presented by Congo”. Experts
Report, para. 65, p. 28 Table 2.2. But she did not apply the coefficient in presenting her concluding
estimate 4,987,756 deaths attributable to the conflict. Ibid., para. 71. Nor was the coefficient applied
when calculating estimated reparations in Table A of the Experts Report. Ibid., p. 4 Table A.
39 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) (DRCM Annex 2.19; UCM Annex 62) (“We can estimate at 200,000 the
excess deaths in the half of the country which was subject to unrest.”) (Translation by Counsel,
original in French: “[O]n peut estimer à 200 000 les morts en surnombre dans la moitié du pays qui
a été soumise aux troubles.”); see DRCM, para. 2.68; UCM, para. 5.25.
13
rate for the same period had the conflict not occurred (referred to as the baseline
crude death rate (“BCDR”)).40 The theory is that the difference between the two
crude death rates (“CDRs”) reveals the change in the death rate caused by the
conflict.
29. Dr Guha-Sapir’s use and application of this methodology to
estimate the number of deaths attributable to the conflict are problematic in myriad
ways. The most critical such problems are detailed in the sections that follow.
Specifically:
􀁸 Dr Guha-Sapir’s “excess deaths” methodology is entirely inapposite to
the task before the Court;
􀁸 If Dr Guha-Sapir’s “excess deaths” methodology were applied properly
using the most recent and authoritative CDR estimates from the United
Nations, the results would suggest that there were, in fact, no excess
deaths in the DRC from 1998 to 2003;
􀁸 Dr Guha-Sapir relied on an outdated UNICEF figure that has since been
revised and superseded for her estimate of the BCDR;
􀁸 Dr Guha-Sapir’s estimate for the PCDR, which she derives from sample
surveys, is more than two times higher than what the most recent UN
statistics indicate;
􀁸 The amount of reparations recommend for indirect deaths in Table A of
the Experts Report improperly assumes that Uganda is responsible for
all the deaths attributable to the conflict; and
40 Experts Report, para. 60.
14
􀁸 Awarding reparation for indirect deaths anywhere near the amount
stated in the Experts Report would be ultra petita, as it would far exceed
what was requested by the DRC.
A. Dr Guha-Sapir’s “Excess Deaths” Methodology Is Entirely
Inapposite to These Judicial Proceedings
30. In its 2005 Judgment, the Court made clear that, in order to receive
compensation, the DRC would be required 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”.41 In so requiring, the
Court was merely echoing international practice. International courts and tribunals
consistently require documentary evidence of alleged losses of life as a prerequisite
for awarding compensation.42 The International Criminal Court, for example, relied
on death certificates to establish losses of life in Ituri in the reparation phase of the
Katanga case.43 Consistent with this approach, the Terms of Reference in the
present case make clear that the experts were to provide an estimate of deaths
“[b]ased on the evidence available in the case file and documents publicly
available, particularly the United Nations Reports mentioned in the 2005
Judgment”.44
31. Dr Guha-Sapir does nothing of the sort. She does not “demonstrate”
or “prove” any deaths. She does not directly rely on any death certificates or any
41 Armed Activities (2005), para. 260 (emphasis added).
42 See UCM, paras. 5.8-5.12.
43 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. 119.
44 The Court’s Order of 8 September 2020, para. 16(2) (emphasis added).
15
other documentary evidence for that matter. Indeed, she rather conspicuously
ignores all of the evidence the DRC submitted with its pleadings.
32. Rather than relying on evidence from the case file or the UN reports
mentioned in the 2005 Judgment, Dr Guha-Sapir runs a statistical analysis based
on estimates for the BCDR and the PCDR. These estimates are, however, fraught
with uncertainties.
33. A key threshold problem is that the BCDR is impossible to
ascertain. There is no way to know for sure what the CDR would have been during
the relevant period had there been no conflict. Dr Guha-Sapir attempts to
circumvent this problem by using the CDR from the year before the conflict as a
proxy.45 Specifically, she assumes that the CDR from 1998 to 2003 would have
been the same as the CDR in 1997.46 There are, however, numerous reasons why
the hypothetical CDR from 1998 to 2003 in the absence of a conflict would have
differed from the CDR in 1997. Indeed, as Dr Guha-Sapir has noted in her writings,
“it is difficult to designate a point in time with which to compare the impact of
conflict on mortality in countries such as Somalia and DRC which exist in a cycle
of chronic emergency”.47
34. Estimating the PCDR is equally problematic. There is simply no
way of knowing for sure what the CDR was during the conflict period, given the
45 Experts Report, para. 61.
46 Ibid.
47 R. Ratnayake, O. Degomme, C. Altare & D. Guha-Sapir, WHO Collaborating Centre for Research
on Epidemiology of Disasters, “Methods and Tools to Evaluate Mortality in Conflicts: Critical
Review, Case-Studies and Applications”, CRED Occasional Paper No. 237, 2008, p. 6; see also F.
Checchi & L. Roberts, “Documenting Mortality in Crises: What Keeps Us from Doing Better?”
PLOS Med, Vol. 5 No. 7, e146 (2008) (“Available pre-crisis mortality estimates come from census
or national health surveys, but they are often imprecise at administrative levels below the national
level, or may be outdated, especially in chronic crises.”).
16
dangerous situation on the ground and other limitations, including the remoteness
of much of the DRC. Even Dr Guha-Sapir herself has elsewhere acknowledged this
problem, writing in 2008 that death estimates are “highly controversial” and
overestimates of deaths from armed conflicts are “common”.48 Her way around this
difficulty here is to rely on sample surveys. Yet as discussed more in Section II.D
below, sample surveys—and particularly the ones relied on by Dr Guha-Sapir—
are extremely unreliable.
35. For these reasons, among many others, commentators have widely
criticised the “excess deaths” methodology to estimate the number of deaths
attributable to a conflict. In her writings, Dr Guha-Sapir herself has emphasised the
need for “[v]erifiable body counts from mortuaries and vital registration records”
in producing reliable death estimates.49 But this is not what she chose to do here.
B. Properly Applied, Dr Guha-Sapir’s Methodology Would
Suggest There Were No Excess Deaths During the Relevant
Period
36. Even if Dr Guha-Sapir’s methodology were not riddled with
inherent limitations and could be used to estimate the number of “excess deaths”
during the conflict, a proper application of her own approach here would suggest
that there were no excess deaths in the DRC between 1998 and 2003.
37. The most authoritative estimates for annual CDRs are those made
by the United Nations; specifically, the UN Population Division in its regularly
revised set of official statistics published under the name World Population
48 D. Guha-Sapir & F. Checchi, “Science and politics of disaster death tolls”, British Medical
Journal, Vol. 362 (2018).
49 Ibid.
17
Prospects.50 The World Bank uses these estimates for its World Development
Indicators,51 which Dr Guha-Sapir herself has relied on to estimate BCDRs in the
past.52
38. The most recent, 2019 revision of the UN Population Division’s
statistics states the following figures for the CDR in the DRC in the years from
1997 to 2003:
Year CDR (deaths per 1,000
individuals per year)
CDR (deaths per 1,000
individuals per month)
1997 16.63353 1.386
1998 16.51454 1.376
1999 16.28855 1.357
50 See United Nations, Department of Economic and Social Affairs: Population Dynamics, available
at https://population.un.org/wpp/ (last accessed 12 Feb. 2021).
51 See World Bank, Death rate, crude (per 1,000 people) - Congo, Dem. Rep., available at
https://data.worldbank.org/indicator/SP.DYN.CDRT.IN?locations=CD (last accessed 12 Feb.
2021).
52 P. Heudtlass, N. Speybroeck & D. Guha-Sapir, “Excess mortality in refugees, internally displaced
persons and resident populations in complex humanitarian emergencies (1998-2012) - Insights from
operational data, Conflict and Health”, Conflict and Health, Vol. 10 (2016).
53 An Excel file with all the statistics for annual demographic indicators for the 2019 revision of
World Population Prospects may be downloaded by clicking on the first link on this webpage:
United Nations, Department of Economic and Social Affairs, Population Division (2019), World
Population Prospects 2019 – Special Aggregates, Online Edition. Rev. 1., available at
https://population.un.org/wpp/Download/SpecialAggregates/EconomicTradin… (last accessed 12
Feb. 2021). The estimate of 16.633 for the CDR of the DRC in 1997 can be seen at cells L-49706,
L-49916, L-50015, L-50170, L-50328, L-50353, and L-50471.
54 Ibid. The estimate of 16.514 for the CDR of the DRC in 1998 can be seen at cells L-50761, L-
50971, L-51070, L-51208, L-51383, L-51408, and L-51526.
55 Ibid. The estimate of 16.288 for the CDR of the DRC in 1999 can be seen at cells L-51816, L-
52026, L-52125, L-52280, L-52438, L-52463, and L-52581.
18
2000 15.95556 1.329
2001 15.53157 1.294
2002 15.05258 1.254
2003 14.55459 1.212
39. Applying Dr Guha-Sapir’s methodology, the BCDR would be the
1997 figure: 1.386 deaths per 1,000 individuals per month. The PCDR would be
the weighted average of the CDRs from 1998 to 2003: 1.306 per month.60 In other
words, according to the most recent UN data, there were fewer deaths on average
during the relevant period than during 1997. Indeed, the UN Population Division’s
figures show that the CDR in the DRC decreased each and every year in the period
from 1997 to 2003. This would mean, under Dr Guha-Sapir’s methodology, that
there were no excess deaths attributable to the conflict.
40. To be clear, it is not Uganda’s position that the armed conflict
actually caused a decrease in deaths in the DRC. The reason why the CDR
decreased from 1997 to 2003 is likely unknowable and could be due to many other
factors, such as improved access to food and medical supplies (due to the presence
56 Ibid. The estimate of 15.955 for the CDR of the DRC in 2000 can be seen at cells L-52871, L-
53081, L-53180, L-53335, L-53493, L-53518, and L-53636.
57 Ibid. The estimate of 15.531 for the CDR of the DRC in 2001 can be seen at cells L-53926, L-
54136, L-54235, L-54390, L-54548, L-54573, and L-54691.
58 Ibid. The estimate of 15.052 for the CDR of the DRC in 2002 can be seen at cells L-54981, L-
55191, L-55290, L-55445, L-55603, L-55628, and L-55746.
59Ibid. The estimate of 14.554 for the CDR of the DRC in 2003 can be seen at cells L-56036, L-
56246, L-56345, L-56500, L-56658, L-56683, and L-56801.
60 In calculating this average, Uganda took into account the fact that the CDRs for 1998 and 2003
should only be given partial weight, since the relevant period does not cover the entirety of both
years.
19
of international or non-governmental relief organisations) or climate conditions
that improved agriculture. Rather, the point is two-fold: (1) the fact that the CDR
decreased during the conflict indicates that the number of deaths resulting
therefrom was small; and (2) Dr Guha-Sapir’s methodology is highly unreliable
and therefore cannot serve as the basis for any legal findings by the Court.
C. Dr Guha-Sapir’s BCDR Estimate Is Outdated
41. As stated, Dr Guha-Sapir uses the 1997 CDR in the DRC as the
BCDR for her estimations. In choosing that figure, however, she does not rely on
the United Nations’ most recent revision of its official CDR statistics, but rather on
an outdated figure from UNICEF. In particular, she states:
“The CDR in DR Congo reported by UNICEF in 1997 was 14/1000
per annum translates [sic] to 1.2/1000/month was [sic] chosen as the
baseline for this analysis.”61
42. In the footnote, she cites to the 1999 edition of UNICEF’s annual
report, The State of the World’s Children.62 Each edition of the report publishes
the estimated crude death rate for every country in the world two years earlier. Dr
Guha-Sapir is correct that the 1999 report stated an estimate of the CDR in the DRC
in 1997 of 14 deaths per 1,000 people per year.63 But UNICEF, whose mandate is
focused on children, does not measure this rate on its own. Rather, the annual
reports make clear that the CDR estimates come directly from the official UN
61 Experts Report, para. 61. To be more precise, this figure should have been 1.167, as 14 divided
by 12 equals 1.167, when rounded to the nearest thousandth.
62 Ibid., para. 61, note 10.
63 UNICEF, The State of the World’s Children 1999, p. 110.
20
statistics published by the UN Population Division.64 In stating this, the annual
reports also note: “These and other internationally produced estimates are revised
periodically.”65
43. That is exactly what happened here. In 1999, the UN Population
Division’s estimate for the CDR in the DRC in 1997 may have been 14 deaths per
1,000 people per year.66 But in its 2002 revision, the Division revised its estimate
to 25.54 deaths.67 Then in its 2004 revision, the Division revised its estimate again
to 21.474 deaths.68 And in its most recent revision in 2019, the UN Population
Division estimated that the CDR in the DRC in 1997 was, as noted above in Section
64 Ibid., p. 92 (“Data for life expectancy, total fertility rates, crude birth and death rates, etc. are part
of the regular work on estimates and projections undertaken by the United Nations Population
Division.”).
65 Ibid.
66 It is not clear where UNICEF obtained this figure from, as the UN Population Division at the
time appears to have only been reporting CDR estimates for five-year time periods, not specific
years. In this respect, the 1998 revision of World Population Prospects estimated that the CDR for
the DRC from 1995 to 2000 would be 14.707. A zip file for all the statistics for that revision may
be downloaded here: United Nations, Department of Economic and Social Affairs, Population
Division (1998), World Population Prospects 1998, available at
https://population.un.org/wpp/Download/Archive/CSV/ (last accessed 12 Feb. 2021). The estimate
of 14.707 for the CDR of the DRC from 1995 to 2000 can be seen at cell P-1231 of the file named
“WPP1998_Period_Indicators_Medium.csv”.
67 A zip file with all the statistics for the 2002 revision of World Population Prospects may be
downloaded here: United Nations, Department of Economic and Social Affairs, Population Division
(2002), World Population Prospects 2002, available at
https://population.un.org/wpp/Download/Archive/Standard/ (last accessed 12 Feb. 2021). The
estimate of 25.54 for the CDR of the DRC in 1997 can be seen at cell I-1234 of the Excel file named
“Supplementary tabulation 1.xls”, which is located within the folder named
“WPP2002_EXCEL_FILES”.
68 A zip file with all the statistics for the 2004 revision of World Population Prospects may be
downloaded here: United Nations, Department of Economic and Social Affairs, Population Division
(2004), World Population Prospects 2004, available at
https://population.un.org/wpp/Download/Archive/Standard/ (last accessed 12 Feb. 2021). The
estimate of 21.474 for the CDR of the DRC in 1997 can be seen at cell H-2657 of the Excel file
named “WPP2004_SUP_F1_ANNUAL_DEMOGRAPHIC_INDICATORS.XLS”, which is
located within the sub-folder named “Supplement” within the folder named
“WPP2004_EXCEL_FILES”.
21
II.B, 16.633 deaths per 1,000 people per year,69 or 1.386 per 1,000 people per
month. This figure is substantially higher than the figure of 1.2 that Dr Guha Sapir
used for her calculations, a fact that by itself renders her calculations meaningless.
D. Dr Guha-Sapir’s Estimate of the PCDR Is Too High
44. Dr Guha-Sapir’s estimate for the PCDR during the relevant period
(2.929 deaths per 1,000 individuals per month70) is even more unreliable than her
estimate of the BCDR. In the first place, Uganda notes that it is more than two
times higher than the UN Population Division’s estimate cited above.71 Moreover,
rather than rely on a UN estimate (albeit an outdated one) as she did for the BCDR,
she took an altogether different approach for approximating the PCDR.
Specifically, Dr Guha-Sapir looks to retrospective sample surveys to derive her
PCDR estimate. It is not at all clear to Uganda why she decided to rely on a UN
statistic for one number but an entirely different source for the other. Absent a
cogent explanation for doing so, such a methodology is not defensible.
69 An Excel file with all the statistics for annual demographic indicators for the 2019 revision of
World Population Prospects may be downloaded by clicking on the first link on this webpage:
United Nations, Department of Economic and Social Affairs, Population Division (2019), World
Population Prospects 2019 – Special Aggregates, Online Edition. Rev. 1., available at
https://population.un.org/wpp/Download/SpecialAggregates/EconomicTradin… (last accessed 12
Feb. 2021). The estimate of 16.633 for the CDR of the DRC in 1997 can be seen at cells L-49706,
L-49916, L-50015, L-50170, L-50328, L-50353, and L-50471.
70 Experts Report, p. 28 Table 2.2.
71 See supra Section II.B. The weighted average of the CDR in the DRC during the relevant period
estimated by the UN Population Division is 1.306 per 1,000 individuals per month.
22
45. In any event, even setting this issue aside, relying on retrospective
sample surveys to calculate any CDR is exceedingly problematic. One well-known
review of mortality surveys, approvingly cited by Dr Guha-Sapir,72 observes:
“Significant errors and imprecision in the methodology and
reporting of nutrition and mortality surveys were identified. While
there was an improvement in the quality of nutrition surveys over
the years, the quality of mortality surveys remained poor.”73
46. Even Dr Guha-Sapir herself has acknowledged that sample surveys
have “inevitably large confidence intervals and all the usual sampling biases that
prevail in affected communities”, and has thus stated that “estimations from sample
surveys need more innovative thinking”.74
47. Moreover, even if retrospective sample surveys in theory could
constitute an acceptable methodology for estimating the PCDR, the specific
surveys Dr Guha-Sapir relies on are not credible. She states that her PCDR estimate
is derived from 38 surveys,75 but that is misleading. The 38 surveys in question
were not independent from one another. They were also not impartially conducted.
All of them were conducted by advocacy organisations: 33 by the IRC, 31 of which
were under the same lead investigator (Dr Les Roberts), and the remaining five by
Médecins sans Frontières (“MSF”).76
72 P. Heudtlass, N. Speybroeck & D. Guha-Sapir, “Excess mortality in refugees, internally displaced
persons and resident populations in complex humanitarian emergencies (1998-2012) - Insights from
operational data, Conflict and Health”, Conflict and Health, Vol. 10 (2016) p. 2, note 11.
73 C. Prudhon & P. Spiegel, “A review of methodology and analysis of nutrition and mortality
surveys conducted in humanitarian emergencies from October 1993 to April 2004”, Emerging
Themes in Epidemiology, No. 4:10 (2007).
74 D. Guha-Sapir & F. Checchi, “Science and politics of disaster death tolls”, British Medical
Journal, Vol. 362 (2018).
75 Experts Report, para. 55.
76 Ibid., pp. 37-38, Appendix 2.3.
23
48. Uganda explained in its Counter-Memorial why the IRC surveys
could not be trusted.77 In summary, they were undertaken for advocacy purposes,
are inconsistent with UN data, had many methodological weaknesses likely to
inflate the numbers, and were substantially criticised by three independent and
reputable studies, including one conducted by the World Health Organization’s
Health and Nutrition Tracking Service.78 Even Dr Roberts, the lead investigator on
most of the IRC surveys, has acknowledged that they suffered from methodological
weaknesses.79 Dr Guha-Sapir herself has also joined in the criticism of the
reliability of the IRC surveys.80 It is thus curious that in her report she does not
address any of those criticisms but rather accepts the surveys at face value, a fact
that casts doubt on her impartiality.
77 UCM, paras. 5.24-5.49.
78 Ibid.
79 See ibid., paras. 5.27, 5.29 (citing Les Roberts, IRC Health Unit, Mortality in eastern Democratic
Republic of the Congo: Results from 11 Surveys (2001), p. 15 (UCM Annex 51) (“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.’”); Human Security Report Project, “Part II, The
Shrinking Costs of War”, Human Security Report (2009-2010) (UCM Annex 64); see also F.
Checchi & L. Roberts, “Documenting Mortality in Crises: What Keeps Us from Doing Better?”
PLOS Med, Vol. 5 No. 7, e146 (2008) (“Survey implementation is often haphazard and fraught with
biases, and surveys conducted during complex humanitarian emergencies are prone to several
methodological limitations. In most crises, lists of households are non-existent and the residential
layout is chaotic, making simple or systematic random sampling difficult. An alternative sampling
design that is commonly employed, even though it is less precise and more prone to bias, is multistage
cluster sampling.”).
80 R. Ratnayake, O. Degomme, C. Altare & D. Guha-Sapir, “Coming together to document mortality
in conflict situations: proceedings of a symposium”, Conflict and Health, No. 3:2 (2009) (“[Surveys
in] the Democratic Republic of Congo by the International Rescue Committee (IRC) have faced
security and logistical obstacles that intensify the methodological limitations and risk to personnel,
hinder the implementation of best practices and ensure that difficult choices must be made
throughout the data collection period.”; “[D]ata… may be anecdotal, unsound or unrepresentative.”;
“[A court case] may require that mortality data is substantiated by the identification of victims.”).
24
49. The MSF surveys, which have not yet been cited to or addressed by
the Parties, suffer from similar issues. The data was gathered simply through
questionnaires, without requiring documentary evidence.81 And the researchers
themselves admitted that an aim of the project was “to inform advocacy efforts”,82
and in particular to justify their conclusion that “[f]unds allocated to humanitarian
action in the DRC must be increased considerably”.83
50. In an attempt to defend the credibility of the IRC and MSF surveys,
Dr Guha-Sapir points out that they “were readily available in Conflict Survey
Repository – CEDAT”.84 Yet in her academic writing she has previously expressed
the view that, in CEDAT, the “quality of mortality surveys in conflicts were
variable and coverage uneven”;85 “[d]ata quality is a matter of concern”;86 and
“limited peer review … affects both quality and credibility of their work”.87
51. In light of the credibility issues with the IRC and MSF surveys, it is
not clear why Dr Guha-Sapir does not give any weight to the study conducted by
two demographers working for the Association for the Development of Applied
Research to Social Sciences, which provides an estimate of 200,000 deaths
81 M. Van Herp et al., “Mortality, Violence and Lack of Access to Health-care in the Democratic
Republic of Congo”, Disasters, Vol. 27, No. 2 (2003), p. 145.
82 Ibid., p. 142.
83 Ibid., p. 152.
84 Experts Report, para. 55.
85 O. Degomme & D. Guha-Sapir, “Mortality and nutrition surveys by Non-Governmental
organisations. Perspectives from the CE-DAT database”, Emerging Themes in Epidemiology, No.
4:11 (2007).
86 C. Altare & D. Guha-Sapir, “The Complex Emergency Database: A Global Repository of Small-
Scale Surveys on Nutrition, Health and Mortality”, PLoS ONE, No. 9(10): e109022 (2014).
87 O. Degomme & D. Guha-Sapir, “Mortality and nutrition surveys by Non-Governmental
organisations. Perspectives from the CE-DAT database”, Emerging Themes in Epidemiology, No.
4:11 (2007).
25
attributable to the conflict.88 The DRC itself cites to this study in its Memorial, and
indeed ultimately puts forward an estimate much closer to this figure.89
E. The Experts’ Estimated Reparation for Indirect Deaths
Improperly Assumes That Uganda Is Responsible for All the
Deaths Attributable to the Conflict
52. Dr Guha-Sapir concludes at the end of her report that there were
4,958,775 indirect deaths attributable to the conflict, and notes that “[t]he unit costs
per life for indirect civilian life lost is USD 15 000 as per estimation of Geoffrey
Senogles”.90 Table A included in the Introduction to the Experts Report makes clear
that these two numbers are simply multiplied together to yield the quantum
ostensibly due for indirect deaths: US$ 74,381,625,000.91 Among the many other
problems with this number, it improperly assumes that Uganda is responsible for
all the deaths attributable to the conflict, which it plainly is not.
53. In its 2005 Judgment, the Court made clear that the deaths that
occurred because of the armed conflict were due to “the actions of the various
parties”, not just Uganda.92 The DRC has expressed its agreement, stating in its
Memorial: “Of course, it is out of the question for the DRC to claim that Uganda
88 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) (DRCM Annex 2.19; UCM Annex 62) (“We can estimate at 200,000 the
excess deaths in the half of the country which was subject to unrest.”) (Translation by Counsel,
original in French: “[O]n peut estimer à 200 000 les morts en surnombre dans la moitié du pays qui
a été soumise aux troubles.”); see DRCM, para. 2.68; UCM, para. 5.25.
89 The DRC considered it reasonable to use an estimate of 400,000 victims, ten times lower than the
four-million figure, because of “the carefulness that has to be observed in a legal proceeding”. See
DRCM, para. 2.70 (Translation by Counsel, original in French: “la prudence qu’il convient
d’observer dans le cadre d’une procédure judiciaire”).
90 Experts Report, para. 71.
91 Ibid., p. 4, Table A.
92 Armed Activities (2005), para. 221.
26
is responsible for all victims caused by the conflict.”93 Indeed, this is why the Court
has held that, in order to receive compensation, the DRC must “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”.94
54. Unable to supply evidence of this causation, the DRC’s Memorial
proposes simply to use a “distribution key” of 45%, thereby asserting that Uganda
was responsible for 45% of the alleged 400,000 deaths attributable to the conflict
(i.e., 180,000 deaths).95 Uganda explained in its Counter-Memorial how this
distribution key was entirely arbitrary.96 Dr Guha-Sapir admits that “the specific
details of the methods and reasoning behind [this number] are not readily
available”,97 which suggests that she too found the number unsustainable.
Nevertheless, she proceeds to apply it in Table 2.2 of her report in order “[t]o make
[her] estimates roughly comparable to those presented by Congo”.98 Why it is
appropriate to alter her numbers so as to fit the DRC’s claims is not explained.
55. In Table A at the beginning of the Experts Report, on the other hand,
the 45% “distribution key” is not applied, nor is any other coefficient applied to
account for the fact that Uganda was not responsible for all of the deaths
attributable to the conflict. If one were to apply the DRC’s distribution key of 45%
across-the-board to the figures produced in the Experts Report, this would reduce
the amount of the Experts’ estimated reparation for indirect deaths by US$ 40.9
93 DRCM, para. 2.71.
94 Armed Activities (2005), para. 260 (emphasis added).
95 DRCM, para. 2.71.
96 UCM, paras. 5.50-5.56.
97 Experts Report, para. 49.
98 Ibid., para. 65, p. 28, Table 2.2.
27
billion. Uganda submits that a differential of that magnitude based on unexplained
and inconsistent use of a “distribution key” clearly calls into question the rigour of
the Experts Report. Moreover, as explained in its pleadings,99 Uganda’s share of
responsibility should be far lower than 45%.
F. The Experts’ Estimated Reparation for Indirect Deaths Is Ultra
Petita
56. The expert’s estimated reparations for indirect deaths should be
disregarded for yet another reason: they are ultra petita.
57. As the Court well knows, the rule of non ultra petita precludes
awarding a party more than it requested. The Court’s decision on compensation in
Corfu Channel illustrates the point. There, the United Kingdom claimed £ 700,087
for the total loss of a warship.100 Experts appointed by the Court estimated the
damages at a higher figure: £ 716,780.101 The Court held that it “cannot award more
than the amount claimed in the submission of the United Kingdom Government”
and consequently awarded the lower amount presented in the claim.102
58. The DRC requested approximately US$ 4.2 billion in reparation for
indirect deaths.103 The experts’ estimated reparation of approximately US$ 74.4
billion far exceeds that amount, and thus cannot be granted by the Court.
99 UCM, paras. 5.57-5.83; Uganda’s Comments on the DRC’s Responses to the Questions from the
Court dated 11 June 2018 (7 Jan. 2019) (hereinafter “UCDR”), paras. 9.1-9.10.
100 Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgement
of 15th December 1949: I.C.J. Reports 1949, p. 249
101 Ibid.
102 Ibid.
103 The DRC does not neatly separate its requested reparations into direct and indirect deaths, but
the summary figures at paragraph 7.15 of its Memorial make clear that it is requesting reparations
28
* * *
59. In conclusion, Dr Guha-Sapir’s report does not provide a basis on
which any conclusions of fact may be made. Her estimate that 4,987,756 deaths
can be attributed to the conflict is wholly unfounded. Not only is her “excess
deaths” methodology entirely inapposite in this judicial proceeding, the variables
she has plugged into her equation are entirely unsupportable. Indeed, her own
approach, if corrected to use the United Nations’ most recently revised CDR
statistics, would suggest that there were no indirect deaths attributable to the
conflict at all. In Uganda’s view, that fact only underscores the wholesale
unreliability of her report.
for 220,000 indirect deaths, which the DRC values at US$ 18,913 each, leading to a total figure of
US$ 4,160,860,000. DRCM, para. 7.15.
29
III. OBSERVATIONS ON THE SENOGLES REPORT
60. The third report included with the Experts Report is entitled
“Quantum Recommended Amounts: Human Lives and Property Damage”, and was
prepared by Mr Geoffrey Senogles (“Senogles Report”). As the title reflects, the
Senogles Report deals with two broad issues: the quantum of compensation
recommended for harms to individuals and for property damages. Uganda offer its
observations on these two aspects of Mr Senogles Report in the sections that
follow.
A. Injury to Persons
61. The portions of the Senogles Report relating to harms to individuals
confirms what Uganda has already showed—that the compensation amounts the
DRC claims for loss of life and other injuries are unfounded and unverifiable.104
62. Mr Senogles makes this clear in his findings concerning the
amounts the DRC seeks in alleged instances of deaths resulting from targeted
violence, deaths not resulting from targeted violence, physical injuries, sexual
violence, the recruitment of child soldiers, and displacement.
􀁸 With respect to the DRC’s claim for US$ 34,000 for each death
resulting from targeted violence, which is nominally based on
Congolese court awards, Mr Senogles observes that his review of the
DRC’s evidence “reveals that neither of the extracts [of court decisions]
provided is complete and neither contains the amounts of compensation
awarded by the two courts.”105 He observes further that “it is not clear
… how these documents evidence, as they are asserted to do, the
104 UCM, Chapter 5.
105 Experts Report, para. 88.
30
amount of USD 34,000 per individual and it therefore follows that, in
my opinion, the individual flat rate amount claimed has not been
supported by clear documentary evidence.”106 Accordingly, Mr
Senogles concludes that there is “no evidentiary basis in the record on
which to measure the extent to which this figure is robust, reliable and
reasonable.”107
􀁸 With respect to the DRC’s claim for US$ 18,913 for each death not
resulting from targeted violence, Mr Senogles concludes that the DRC’s
methodology underlying that amount similarly “contains several
matters of detail that are open to question”.108 For example, “[t]he
victim identification forms made available in the DRC evidence, do not
facilitate a comprehensive review with which to assess the accuracy of
the asserted average age of relevant victims.”109 Nor did the DRC
provide “clear support” for US$ 753.20 as being the country’s GDP per
head for the year 2015.110 And, he writes, the DRC’s “rationale for
adopting the year 2015 for the GDP per head data point is not beyond
debate” and cannot be “a robust basis on which to assert losses of
income that, continuing the averaging methodology adopted by the
DRC, may have commenced from as early as 1998 (some 17 years prior
to the year chosen by the DRC).”111
106 Experts Report, para. 88.
107 Ibid., para. 88.
108 Ibid., para. 90.
109 Ibid., para. 91.1.
110 Ibid., para. 91.2.
111 Ibid., para. 114.
31
􀁸 With respect to the amounts the DRC claims for serious physical
injuries, Mr Senogles observes that “[n]o supporting evidence is
provided by the DRC for the USD 3,500 claimed amount that is stated
to be based on judgements of Congolese courts for serious injuries.”
There is therefore, he concludes, “no evidentiary basis on which to
assess this claim figure.”112 Similarly “without evidence” are the two
“minor injury” compensation figures of US$ 150 and US$ 100 that the
DRC proposes.113
􀁸 With respect to the figures sought by the DRC in the case of sexual
violence, the Senogles Report observes that “there is no supporting
court evidence from the DRC for the US$ 12,600 and US$ 23,200
claimed amounts stated to be based on judgements of Congolese
courts.”114 There is thus, he says, “no evidentiary basis on which to
assess these claim figures.”115
􀁸 With respect to the US$ 12,000 the DRC claims for each child soldier,
Mr Senogles observes that it “is not based on evidence of loss, but rather
is asserted for each individual” based solely on what “the DRC deems
reasonable.”116 As with the other elements of the DRC’s claims, he
writes that “it is the case that there is no supporting quantum evidence
112 Ibid., para. 114.
113 Ibid., para. 117.
114 Ibid., para. 122.
115 Ibid.
116 Ibid., para. 127.
32
from the DRC for the USD 12,000” per each individual, and therefore
“no evidentiary basis on which to assess these claim figures.”117
􀁸 Finally, with respect to the DRC’s claim to “flat rates” of US$ 300 and
US$ 100 for each allegedly displaced individual, Mr Senogles is equally
frank, writing: “no supporting evidence is provided by the DRC for
these two flat rates claimed.”118
63. These stark conclusions inescapably lead to a conclusion that the
DRC has not provided sufficient evidence to prove its claims for loss of life and
other injuries, notwithstanding the Court’s admonition in the 2005 Judgment that
such evidence would be required at this stage of the proceedings.119
64. Moreover, Mr Senogles’ conclusions must be viewed against the
backdrop of the Court’s Terms of Reference for the experts. The Court asked the
experts, inter alia, to provide an opinion on the following question, which was
limited to “loss of human life”:
“(b) What was, according to the prevailing practice in the
Democratic Republic of the Congo in terms of loss of human life
during the period in question, the scale of compensation due for the
loss of individual human life?”120
117 Ibid., para. 130.
118 Ibid., para. 135.
119 Armed Activities (2005), para. 260 (requiring the DRC to “demonstrate and prove the exact
injury that was suffered as a result of specific actions of Uganda constituting internationally
wrongful acts for which it is responsible”) (emphasis added).
120 The Court’s Order of 8 September 2020, para. 16.
33
65. As stated, Mr Senogles was unable to make the requested
determination based on the materials the DRC provided to the Court. Nor does he
appear to have undertaken an independent examination of the question.
66. To the contrary, whether because he was unable to determine the
relevant practice in the DRC or otherwise, he took a different approach that
departed from the Court’s mandate: he turned to the mass claims process before
the UN Compensation Commission (“UNCC” or “Commission”) to develop his
recommended compensation figures.
67. Mr Senogles strayed from the Court’s Terms of Reference in
another respect as well. Instead of limiting his recommendations to the “loss of
human life,” Mr Senogles took it upon himself to also recommend compensation
figures for physical injuries, sexual violence, recruitment of child soldiers, and
displacement. Since these parts of his report are plainly ultra vires, Uganda
considers that they should be disregarded by the Court.
68. In any event, none of the compensation rates the Senogles Report
recommends can be transposed from the UNCC context to this one. Those
proceedings could scarcely be more different from these. The UNCC adopted a
unique mass claims process that bears no semblance to the traditional standard of
proof in inter-State proceedings like this one. Mr Senogles’ reliance on figures from
the UNCC is therefore flawed at its very conception. To compound matters, Mr
Senogles also misapprehends and misapplies the UNCC’s methodologies. Uganda
discusses each of these two fatal flaws in turn.
1. The UNCC Mass Claims Process Has No Application in
This Case
69. As stated, rather than determine the prevailing practice in the DRC
in respect of the compensation due for loss of life, the Senogles Report looks
instead to the UNCC. Mr Senogles recommends “individual flat rate compensation
34
amounts” based on the UNCC’s “mass claims programme.”121 In particular, he
recommends the following fixed amounts for all alleged victims of the various
types of injuries claimed by the DRC,122 which are summarised in the table below:
121 Experts Report, paras. 92-94.
122 Ibid., para. 139.
35
70. Mr Senogles purports to justify this resort to UNCC fixed amounts
by claiming that “the UNCC’s methodologies, decisions and awards of
compensation in respect of losses attributed to injury to persons” are “of most direct
36
relevance to the present matter under review.”123 He is mistaken. The UNCC had a
very different role than the Court and it developed a very specific methodology to
fit that role. The results of that mass claims process are not transposable to these
inter-State proceedings. Moreover, even if the UNCC approach could be
transplanted to this very different setting (quod non), it would still be impossible
to apply it in practice, given the DRC’s wholesale failure to present competent—
or, frequently, any—evidence of the injuries it alleges.
71. The Court will recall that the UNCC was established by the UN
Security Council to address the injuries resulting from Iraq’s invasion and
occupation of Kuwait in 1990-1991.124 The UN Secretary-General specifically
stated at the time that the Commission “is not a court or an arbitral tribunal before
which the parties appear; it is a political organ that performs an essentially factfinding
function of examining claims, verifying their validity, evaluating losses,
assessing payments and resolving disputed claims.”125
72. The UNCC operated for approximately 15 years, at its height
employing roughly 300 lawyers, accountants, loss adjusters and information
technology specialists to process a total of about 2.7 million claims.126 To do its
work, the Commission adopted a highly complex system in which claims were
divided into categories, with certain fixed amounts used for the expedited
123 Experts Report, paras. 92, 94.
124 See U.N. Security Council, 2981st Meeting, Resolution 687 (1991), U.N. Doc. S/RES/687 (8
Apr. 1991), para. 16, Annex 1 in Uganda’s Counter-Memorial.
125 U.N. Security Council, Report of the Secretary-General Pursuant to Paragraph 19 of Security
Council Resolution 687, U.N. Doc. S/22449 (2 May 1991), para. 20 (emphasis added).
126 See United Nations Compensation Commission, Home, available at http://www.uncc.ch/home
(last accessed 13 Feb. 2021).
37
processing of claims based on minimal evidence, and higher amounts awarded for
less expedited claims based on greater evidence.127
73. While this approach has merit in some circumstances,128 it plainly
cannot serve as a model in this inter-State proceeding, governed as it is by specific
rules and requirements for proving damages that the Court itself set out in the 2005
Judgment.129 The DRC may have alleged large amounts of harm, but that alone
does not justify reliance on the UNCC model.
74. Uganda considers that a more relevant precedent is the EECC,
which operated from 2001 to 2009. As here, the EECC dealt with large inter-State
claims arising from the high-intensity 1998-2000 armed conflict between Eritrea
and Ethiopia.130 Although the EECC’s precise mandate must be borne in mind
127 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.
128 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 Labour
Compensation Program; International Commission on Holocaust Era Insurance Claims; Claims
Resolution Tribunal for Dormant Accounts; and Holocaust Victim Assets Program.
129 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”. Armed Activities (2005), para. 260
(emphasis added).
130 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 26 Jan. 2021).
38
when considering it as a precedent, it was confronted, as the Court is now, with
violations of international law during an armed conflict between two African
States. These geographical, sociological and economic circumstances were not
present in the context of the reparation scheme which the United Nations Security
Council entrusted the UNCC.
75. Following the traditional approach of requiring convincing
evidence establishing the existence of harm and its valuation to a high level of
certainty, the EECC relied on and closely analysed large amounts of specific,
corroborated evidence, including: documentary evidence; medical and hospital
records; receipts of expenditures; photographs and satellite imagery; and signed
and sworn declarations. Uganda considers it surprising that, having taken it upon
himself to look beyond the Court’s Terms of Reference, Mr Senogles focused only
on the UNCC and took no account of the more pertinent experience from the
EECC.
76. Another significant shortcoming with Mr Senogles’
recommendations is that he cherry-picks one element from the UNCC’s
methodology—individual flat rate amounts—while completely ignoring that this
element was just one part of an integrated package. It was designed to operate in
tandem with other elements to the UNCC’s overall methodology, elements that are
missing in this case.
77. For example, the UNCC required at the outset: (1) defining the class
of claimants entitled to receive compensation; (2) establishing a level of fixedamount
compensation for that class with respect to a specific type of loss or injury
at issue; (3) developing the evidentiary threshold necessary for an individual to
prove membership in the class; (4) designing claims forms to be filed by or on
behalf of each, named individual; and (5) establishing a mechanism to verify the
evidence, through sampling and regression analysis, that did not require the
39
examination of each claim but did require testing of specific evidence on specific
victims. Further, to the extent that a certain percentage of claims forms sampled
did not meet the relevant evidentiary threshold, the total amount to be compensated
for that entire class was reduced by that percentage.
78. None of these steps, let alone in that sequence, has been taken in
this case. By failing to recognise the critical distinction between the UNCC’s mass
claims process and these inter-State proceedings, the Senogles Report commits a
fundamental error. Mr Senogles separates two inseparable elements: (1) the proof
of harm to a specific victim (an essential aspect never addressed in his report), and
(2) the quantum due once the harm is proved. For the UNCC, these elements were
inextricably bound together: awarding compensation for a particular category and
for a particular harm within that category depended on meeting the required
evidentiary threshold.
79. Mr Senogles also ignores the fact that the level of evidence
presented to the UNCC determined what category individual claimants fell into and
their corresponding entitlement to compensation. Depending on the type of
evidence offered and what it showed, claimants for the same type of harm might
fall within Category B (minimal evidence), Category C (evidence demonstrating
harm at a quantum up to US$ 100,000), or Category D (evidence demonstrating
harm at a quantum of more than US$ 100,000).
80. The would-be evidence that the DRC has presented in this case
stands in stark contrast to that submitted before the UNCC. As Uganda has
previously demonstrated, the “evidence” on which the DRC attempts to rely is
irredeemably flawed. For example, unlike the claims forms before the UNCC, the
“victim identification forms” that the DRC has submitted to the Court, viewed both
40
individually and collectively, do not constitute reliable evidence on which an award
of compensation can be based.131
81. A majority of the DRC’s claims forms do not even identify the
victims of the harm alleged, but refer to them instead only as “non signalé”
(unidentified). In addition, not a single victim identification form is connected to
corroborating documentation of any kind. Other problems include—but are not
limited to—the fact that many of the forms are illegible, state that the alleged
perpetrators (“auteurs présumés”) were actors other than Uganda, and/or fail to
indicate a valuation for the injury alleged.132
82. Quite apart from these elementary flaws, there are also broader,
systemic reasons to doubt the reliability of the DRC’s claims forms. On the DRC’s
own admission, they were prepared years after the events in question by a selfinterested
party specially for purposes of this litigation.133
83. The DRC has also failed to provide a detailed description of its
methodology for collecting these forms. This failure gives rise to obvious concerns:
when a government official approaches someone and indicates that an international
court may render compensation in his/her favour provided that he/she fills out a
form, there are reasonable doubts as to whether objective information is actually
being gathered. These concerns are only heightened in the absence of corroborating
evidence, especially in circumstances where such evidence should exist, whether
131 See the detailed discussion in UCDR, paras. 1.4-1.69.
132 Ibid.
133 According to the DRC Memorial, sometime after 2005 the DRC created a “Commission of
Experts” that engaged in “extensive data collection” and dispatched “teams” to various locations to
gather signed “claims forms” from victims setting out the injury they allegedly suffered. DRCM,
paras. 1.30-1.35.
41
in the form of photographs, invoices, medical records, reconstruction estimates,
police reports and so on.
84. In sum, contrary to the recommendation by Mr Senogles, “the
UNCC’s methodologies, decisions and awards of compensation” have no “direct
relevance”—or, indeed, any relevance—“to the present matter under review.”134
2. The Senogles Report Misapprehends and Misapplies the
UNCC’s Methodologies
85. In his report, Mr Senogles also misapprehends the UNCC’s
methodologies and misapplies them to come up with the individual flat rate
amounts he recommends. He plucks inapposite UNCC rates from inapplicable
categories of claims that required an evidentiary showing that the DRC has not
even begun to meet.
86. As previously stated, the amount and quality of evidence presented
to the UNCC determined both the category into which each individual claimant fell
as well as the corresponding compensation amount that particular claimant might
receive. Mr Senogles should have been aware of this because he “worked on staff
at the UNCC in Geneva between 2000 and 2003, and was engaged thereafter as an
external independent consultant to continue advising Panels of Commissioners on
their valuation decisions.”135 On the other hand, since the UNCC during that time
period was focused on Categories D, E and F claims, Mr Senogles may not have
been familiar with the decisions and procedures most pertinent to the fixed amounts
advanced in his report, which concern Categories B and C.
134 Experts Report, para. 94.
135 Ibid., para. 93, note 33.
42
87. In any event, the Senogles Report entirely disregards this important
aspect of the UNCC’s work (determining the amount and quality of evidence
presented by a claimant) and, as a result, commits significant errors. As discussed
below, he inexplicably ignores UNCC Category B claims corresponding to lower
fixed amounts for minimal evidentiary showings, and instead recommends
compensation amounts awarded for Category C claims, which required that “actual
loss” be proved. He further compounds these errors by arbitrarily choosing
inapposite compensation amounts from within Category C.
a. The Senogles Report Ignores the UNCC’s
Approach to Category B Claims
88. The UNCC developed Category B claims to pay fixed amounts to
any person who, as a result of Iraq’s unlawful invasion and occupation of Kuwait,
suffered serious personal injury, or whose spouse, child, or parent died.136 Through
their government or an international organisation, each claimant submitted a claims
form identifying the person killed or injured, his or her nationality, and the date of
the injury or death.137
89. The evidentiary standards applicable to category B claims were set
forth in Article 35(2)(b) of the UNCC Rules:
“For the payment of fixed amounts in the case of serious personal
injury not resulting in death, claimants are required to provide
136 U.N. Compensation Commission, First Session of the Governing Council of the United Nations
Compensation Commission, U.N. Doc. S/AC.26/1991/1 (2 Aug. 1991), paras. 10-13.
137 Ibid., paras. 17-19. Identification of the person was important as there was a limit of no more
than US$ 10,000 for recovery by family members for a person’s death. The date was important due
to the presumption that Iraq was responsible for all death or injury in Kuwait occurring from 2
August 1990 and 2 March 1991; any injury or death outside that time-frame imposed an extra
burden on a claimant to provide an explanation as to why such loss occurring outside this timeperiod
should be considered a direct result of Iraq's invasion and occupation of Kuwait. Nationality
was important since no claims were admitted for Iraqi nationals. Claims also were precluded for
members of armed forces, unless they were POWs held by Iraq. Ibid.
43
simple documentation of the fact and date of the injury; in the case
of death, claimants are required to provide simple documentation of
the death and the family relationship. Documentation of the actual
amount of loss will not be required.”138
90. When analysing the level of evidentiary support in this category, the
panel of commissioners found that:
“Nearly all the claims for serious personal injury and death were
supported by some form of proof, although most of the claims in the
first instalment contained a minimal level of documentary evidence.
The scarcity of evidentiary support characterising many claims may
be attributable mainly to the circumstances prevailing in Kuwait and
Iraq during the invasion and occupation period. Under the general
emergency conditions prevailing in the two countries, thousands of
individuals were forced to flee or hide, or were held captive, without
retaining documents that later could be used to substantiate their
losses.”139
Compensation for successful claims in this category was set at
US$2,500 for individuals and (as noted above) up to US$10,000 for
families, with detailed rules identified for what constituted a ‘family
unit’.”140
91. Mr Senogles does not explain why he disregards Category B claims
when choosing the fixed amounts he recommends for death, injury, and other
harms. Uganda considers this silence all the more striking, if not inexplicable, given
that even viewing the evidence in this case most charitably to the DRC, it fits more
closely within the rubric of Category B claims than anything else. That said, in
138 U.N Compensation Commission, Decision taken by the Governing Council of the United Nations
Compensation Commission at the 27th Meeting, Sixth session held on 26 June 1992, U.N. Doc.
S/AC.26/1992/10 (26 June 1992), Art. 35(2)(b).
139 U.N. Compensation Commission, Recommendations Made by the Panel of Commissioners
Concerning Individual Claims for Personal Injury or Death (Category “B” Claims), U.N. Doc.
S/AC.26/1994/1 (26 May 1994), p. 33.
140 Ibid., p. 18-19.
44
Uganda’s view, even the amounts corresponding to Category B claims could not
be transposed to this case because the DRC has not even met the comparatively
lower evidentiary standards the UNCC used for this category, to include the name
of the victim, his or her nationality, and the date of the injury or death.
b. The Senogles Report Inappropriately Selects a
Compensation Figure from UNCC Category C
Claims
92. As stated, rather than adopt compensation figures from UNCC
Category B claims, Mr Senogles chooses to recommend figures derived from
UNCC Category C claims. Uganda considers this approach facially untenable. Not
only are the economic realities in Kuwait and the DRC inherently very different,
Category C claims required substantial proof of actual loss—a threshold the DRC
has not even come close to meeting in this case.
93. As stated, the UNCC established Category C claims to pay
compensation for actual loss up to US$ 100,000 to any person who incurred
damages in eight categories, including death and personal injury.141 Such claims
had to be “documented by appropriate evidence of the circumstances and amount
of the claimed loss.”142 Specific evidence was thus expected to prove the quantum
of loss actually sustained; this category was not designed as a “fixed amount”
category. Claims to higher amounts also required more stringent proof.
94. Category C claim forms reflected these requirements. The covering
instructions on Category C claims forms directed that “[a]ppropriate evidence will
141 U.N. Compensation Commission, Report and Recommendations Made by the Panel of
Commissioners Concerning the First Installment of Individuals Claims for Damages up to
US$100,000 (Category “C” Claims), U.N. Doc. S/AC.26/1994/3 (21 Dec. 1994), p. 6-7.
142 Ibid., p. 22 (emphasis added); see also U.N Compensation Commission, Decision taken by the
Governing Council of the United Nations Compensation Commission at the 27th Meeting, Sixth
session held on 26 June 1992, U.N. Doc. S/AC.26/1992/10 (26 June 1992), Art. 35(2)(c).
45
… be required documenting the circumstances and the amount of damages
claimed,” and that compensation will be provided only for “[d]irect losses as a
result of Iraq’s unlawful invasion and occupation of Kuwait.”143 The instructions
specified that documentation proving a claimant’s nationality was required, and
that “compensation, whether in funds or in kind, already received from any source
will be deducted from the total amount of losses suffered.”144 It was also
emphasised that the Commission would be alert to claims for exaggerated amounts
that were not substantiated by satisfactory evidence or otherwise justified.
95. In the specific case of claims forms for the death of a spouse, child
or parent (so-called “C3” claims), the forms required that the claimant indicate his
or her “relationship to deceased,” inviting a choice between spouse, child and
parent. It further requested the claimant to attach a copy of a marriage document,
birth certificate or “any other official record.”145 Regarding the cause of death, the
loss page required that the claimant specify “how did the deceased die” and indicate
the date of death. It also contained an instruction to attach “appropriate
documentation such as a photocopy of a death or burial certificate and a separate
statement describing the cause and circumstances of death.”146
96. As Uganda has now repeatedly explained, the DRC offers nothing
even remotely analogous in this case. Under the circumstances, Mr Senogles’
143 U.N. Compensation Commission, Report and Recommendations Made by the Panel of
Commissioners Concerning the First Installment of Individuals Claims for Damages up to
US$100,000 (Category “C” Claims), U.N. Doc. S/AC.26/1994/3 (21 Dec. 1994), p. 8.
144 Ibid.
145 Ibid., p. 121.
146 Ibid.
46
choice of compensation figures derived from UNCC Category C claims is entirely
unjustified.
c. The Compensation Figures Mr Senogles Selects
from Among UNCC Category C Claims Are
Arbitrary
97. Quite apart from overlooking the fact that UNCC Category C claims
required robust evidentiary showings, Mr Senogles also arbitrarily selects
compensation figures from within that category to come up with the fixed rates that
he recommends in this case.
98. For the categories of harms on which Mr Senogles bases his
recommendations, the UNCC set the following ceiling amounts:
􀁸 As regards cases involving the death of a spouse, child or parent,147 US$
15,000 per claimant or US$ 30,000 per family unit.
􀁸 As regards cases of “serious personal injury”148 involving
dismemberment, permanent significant disfigurement, or permanent
loss of use or permanent limitation of use of a body organ, member,
function or system, US$ 15,000.149
147 See U.N. Compensation Commission, Report and Recommendations Made by the Panel of
Commissioners Concerning the First Installment of Individual Claims for Damages up to
US$100,000 (Category “C” Claims), U.N. Doc. S/AC.26/1994/3 (21 Dec. 1994), pp. 120, 249.
148 Ibid., p. 104.
149 Ibid., p. 112. On 14 March 1993, a group of psychiatric experts to the UNCC prepared an MPA
Report, which provided a list of criteria to be applied that would “allow the compensation to be
adjusted in accordance with certain readily observable and objective standards that are intended to
reflect different degrees of MPA suffered by claimants.” Ibid. The MPA Report appears at p. 240,
Annex VI.
47
99. From these ceiling amounts, Mr Senogles presents the following
recommendations for fixed sums to be awarded for deaths:
􀁸 US$ 30,000 for deaths resulting from acts of violence deliberately
targeting civilians.
􀁸 US$ 15,000 for deaths not resulting from such violence.150
100. Nowhere does Mr Senogles explain why he chose these numbers
and not others. They appear to be entirely arbitrary. With respect to deaths from
acts of targeted violence, Mr Senogles offers no rationale for relying on the amount
associated with a family unit rather than an individual. Nor does he explain why he
selected US$ 15,000 for deaths not resulting from targeted acts of violence. Indeed,
Mr Senogles does not even try to explain why the quantum should depend on the
circumstances of the death. Certainly, that is not what the UNCC did; the amounts
that the Commission awarded did not depend on the nature of the death.
101. Also disconcerting is Mr Senogles’ failure to explain why he used
the category “ceilings” as the fixed amounts he recommends, other than saying
cryptically that the ceilings “in practice represented a form of tariff figures”
(whatever that may mean).151
102. The arbitrary nature of Mr Senogles’ approach is evident from the
fact that the “ceilings” he recommends as fixed figures do not correspond to the
categories of harm at issue in this case. He says simply that he thinks that these
150 Experts Report, paras. 106, 109.
151 Ibid., para. 99.
48
UNCC categories are “comparable” to categories at issue here.152 But they are not,
as shown on the chart below:
Fixed amount selected
by Mr Senogles
UNCC origin Category at Issue in Our
Case
US$ 30,000 Ceiling for
compensation to a
family unit for claims
relating to the death of a
spouse, child or parent
Death from acts of
violence deliberately
targeted at civilian
populations
US$ 15,000 Ceiling for
compensation for
claims relating to
personal injury in the
form of
dismemberment,
permanent significant
disfigurement, or
permanent loss of use or
permanent limitation of
use of a body organ,
member, function or
system
Death not resulting from
violence targeted at
civilian populations
(collateral)
103. Uganda notes finally that similar methodological flaws afflict the
compensation figures that Mr Senogles recommends for other types of injuries
other than death. Because those recommendations exceed the Terms of Reference
and are therefore ultra vires, Uganda sees no need at this stage to burden the Court
with its observations on those elements of his report. It reserves the right to do so
during the oral hearings in the event it proves necessary to do so.
152 Ibid., para. 97.
49
104. In sum, the compensation rates that Mr Senogles recommends
should be disregarded as unfounded and arbitrary.
B. Property Damage
105. Turning to the portions of the Senogles Report relating to property
damages, the relevant Terms of Reference provide:
“(a) Based on the evidence available in the case file and documents
publicly available, particularly the United Nations Reports
mentioned in the 2005 Judgment, what is the approximate number
and type of properties damaged or destroyed by Ugandan armed
forces in the relevant period in the district of Ituri and in June 2000
in Kisangani?
(b) What is the approximate cost of rebuilding the kind of schools,
hospitals and private dwellings destroyed in the district of Ituri and
in Kisangani?”153
106. In his report (the “Senogles Report”), Mr Senogles recommends the
following amounts, which are shown alongside the amounts the DRC claimed in
its Memorial:
Table: Property losses in Ituri154
The DRC’s
Claimed Amount
Mr Senogles’
Recommended
Destruction of Dwellings
- Basic US$ 2,086,200 US$ 4,015,200
- Medium US$ 6,520,000 US$ 995,000
- Luxury US$ 4,350,000 US$ 260,000
US$ 12,956,200 US$ 5,270,200
Destruction of Infrastructure
- Schools US$ 15,000,000 US$ 11,250,000
- Clinics US$ 3,750,000 US$ 2,812,500
153 The Court’s Order of 8 September 2020, para. 16.
154 Experts Report, paras. 165.
50
- Administrative US$ 2,500,000 US$ 1,875,000
US$ 21,250,000 US$ 15,937,500
Looting US$ 7,318,413 US$ 3,659,206
Total – Property Damage (Ituri) US$ 41,524,613 US$ 24,866,906
Table: Property losses in Kisangani, Beni, Butembo, and Gmena, including the
property losses of SNEL and the Congolese Army155
Property The DRC’s
Claimed Amount
Mr. Senogles
Recommended
Four Named Locations US$ 25,628,075 US$ 16,632,776
La Société Nationale d’Electricité US$ 97,412,090 US$ 56,974,865
Congolese Armed Forces US$ 69,417,192 US$ 41,650,315
US$ 192,457,357 US$ 115,257,956
107. The substantial difference between the amounts claimed by the
DRC and recommended by Mr Senogles by itself underscores the inflated nature
of the DRC’s claims. That said, even the amounts Mr Senogles recommends should
not be awarded because they still suffer from two fundamental flaws:
􀁸 First, the Court directed the experts to make their determination “based
on the evidence available in the case file and documents publicly
available.”156 In his report, however, Mr Senogles does not appear to
have undertaken any independent assessment of the evidence
underlying the DRC’s claims. Instead, he routinely accepts at face value
the assertions that the DRC made in its Memorial and disregards other
155 Ibid., para. 190.
156 The Court’s Order of 8 September 2020, para. 16.
51
materials available in the case file, including the materials submitted by
the DRC that directly contradict or undermine its assertions, and
Uganda’s materials and comments.
􀁸 Second, Mr Senogles’ report repeatedly acknowledges and confirms the
very significant evidentiary and methodological flaws infecting the
DRC’s claims. Even so, he makes no attempt to address those issues
based on objective and reasoned criteria. Instead, he does nothing more
than mechanically reduce the amounts the DRC claims by applying
various evidentiary “discount rates.”
108. The result is that the amounts Mr Senogles recommends are not
more rigourous, scientific, or justified, or any less arbitrary, than the amounts
claimed by the DRC. In Uganda’s view, “evidentiary discounts” seemingly pulled
out of a hat cannot cure a total lack of evidence. Damage claims that are
unsupported by any actual evidence must be rejected. In its Judgment on
compensation in Costa Rica v. Nicaragua, for example, the Court refused to award
compensation for alleged damages where the requesting party failed to clarify and
support the nature, extent and valuation of damages.157 The Court should come to
the same conclusion here with respect to the alleged property losses in Ituri and
elsewhere for the reasons explained below.
1. Property Losses in Ituri
109. The DRC claims US$ 41,524,613 for alleged property damages in
Ituri. Uganda has previously showed that this claim is unfounded.158 The Senogles
157 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Compensation, Judgment, I.C.J. Reports 2018, para. 103.
158 UCM, paras. 7.20-7.34; UCDR, paras. 14.1-14.14.
52
Report similarly concludes that there is no basis for the Court to award the amount
the DRC claims and recommends US$ 24,866,906 instead.159
110. Although the recommended amount is nearly 50% less than the
claimed amount, it is no less arbitrary. It results from an arbitrary application of
unexplained discounts in a misguided effort to make up for the evidentiary and
methodological shortcomings that undermine the DRC’s claims in their entirety.
a. Destruction of Dwellings in Ituri
111. The DRC claims US$ 12,956,200 in compensation for the alleged
destruction of 8,693 dwellings in Ituri.160 The Senogles Report recommends
reducing the claimed amount by approximately 60% to US$ 5,270,200 to take
account of the evidentiary and methodological flaws infecting this head of
damages161—flaws Uganda also previously highlighted.162 Nevertheless, the
recommended amount cannot be awarded for two reasons.
􀁸 First, in establishing the extent of damages, the Senogles Report simply
accepts and relies on the DRC’s unfounded assertions concerning the
number of dwellings destroyed and ignores other materials that the
DRC has put before the Court, which contradict those assertions.
159 Experts Report, para. 165.
160 DRCM, 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.”).
161 Experts Report, paras. 152-153
162 UCM, paras. 7.20-7.34; UCDR, paras. 14.1-14.14.
53
􀁸 Second, in evaluating damages, the Senogles Report similarly accepts
and adopts the reconstruction costs alleged by the DRC, which have no
foundation in evidence.
112. As regards the number of dwellings, the DRC Memorial asserts that
“one can reasonably estimate” that 8,693 allegedly destroyed dwellings “can be
distinguished pursuant to the following distribution allocation: 5% for luxury
houses, 15% for medium houses and 80% for simple houses”.163 Based on this
ostensible “distribution allocation”, the DRC seeks compensation for damages
allegedly caused to:
􀁸 Basic houses 6,954
􀁸 Medium houses 1,304
􀁸 Luxury houses 435164
113. Uganda has already showed that these proportions are unfounded.165
The Senogles Report confirms the same conclusion.166
114. The Senogles Report, however, arrives at “a different total number
of properties destroyed in Ituri (13,609)” and at “a different pattern of the split
between their designated grades,”167 summarising them as follows:
163 DRCM, 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”.).
164 Ibid., paras. 7.35, 3.45(c).
165 UCM, paras. 7.20-7.34; UCDR, paras. 14.1-14.14.
166 Experts Report, paras. 147-148.
167 Ibid., para. 148.
54
􀁸 Basic houses 98% 13,384
􀁸 Medium houses 1% 199
􀁸 Luxury houses 1% (de minimis) 26168
115. Although the total number of dwellings is higher, the proportions of
“medium” and “luxury” houses are significantly lower than the numbers alleged
by the DRC. This alone reduces the amount of the claimed compensation by more
than 50% (from US$ 12,956,200 to US$ 5,270,200).
116. But even this reduced amount is without evidentiary foundation. To
arrive at the new total number of dwellings destroyed and the stated proportions,
the Senogles Report relies entirely on Annex 1.3 of the DRC’s Memorial,169 which
contains only the summary table shown below:
168 The Senogles Report apparently rounded up those distributions because dividing the total number
of dwellings by the numbers for each category of allegedly destroyed dwellings yields the following
percentages:
• 98.3% for “simple” houses;
• 1.5% for “medium” houses; and
• 0.2% for “luxury” houses.
169 See note 75 of the Experts Report referring to “DRC Memorial, Annexe 1.3, page 3, « Liste biens
perdus et leurs fréquences ITURI.pdf », line items no. 118 [habitation de luxe, 26], no. 119
[habitation légère, 13384], no. 120 [habitation moyenne, 199].”
55
56
117. Neither with its Memorial nor at any other time has the DRC
submitted any evidence to support the numbers stated on this summary table. Not
a single building is identified, even with respect to a general location. This table
therefore has no value as evidence on which either the Court or Mr Senogles can
rely.
118. Moreover, the numbers in this summary table are actually
contradicted by other materials that the DRC has put before the Court. The DRC’s
annex entitled “Evaluation pertes des biens” (submitted the file “Victimes_Perte
Biens_Ituri” as Annex 1.3 to the DRC Memorial and as Annex 1.9.E in response
to the Court’s Question 14), presents a very different picture about the number and
types of dwellings allegedly destroyed:
􀁸 Basic houses 658
􀁸 Medium houses 104
􀁸 Luxury houses 16170
119. The Senogles Report never explains why it ignored these
contradictory materials, even though the Court directed the experts to examine “the
evidence available in the case file.”171 Had Mr Senogles done so, he would either
have had to explain why he ignored this evidence or to reduce the DRC’s claimed
amount even more. For example, even if the nominal reconstruction costs were not
themselves arbitrary (quod non), applying them to the numbers that the DRC stated
170 “Evaluation Pertes des Biens” in file Victimes_PerteBien_ITURI, DRCM, Annex 1.3 ; DRCRQ,
Annex 1.9.E.
171 The Court’s Order of 8 September 2020, para. 16.
57
in Annex 1.3 and Annex 1.9.E would result in reparation under this head of damage
in the amount of US$ 877,400:
􀁸 US$ 197,400 for basic houses (658 x US$ 300)
􀁸 US$ 520,000 for medium houses (104 x US$ 5,000)
􀁸 US$ 160,000 for luxury houses (16 x US$ 10,000)
120. Even this reduced amount would be unfounded because Annex 1.3.
and Annex 1.9.E offer no basis to prove with any degree of confidence, much less
certainty, the number of dwellings allegedly destroyed.172
121. Moreover, the reconstruction costs that the Senogles Report
recommends are equally baseless. For its part, the DRC purports to apply a threetier
scale nominally “created on the basis of the cost to rebuild the houses”, which
it asserts are:
􀁸 US$ 300 for a basic house
􀁸 US$ 5,000 for a medium house
􀁸 US$ 10,000 for a luxury house173
122. The Senogles Report confirms that the alleged reconstruction costs
“are not evidenced and are not explained in the DRC Memorial.”174 The report also
172 UCM, Chapter 7, Section II(A)(1); UCDR, Question 14.
173 DRCM, para. 7.35 (Translation by Counsel, original in French: “établi sur la base de la valeur
de reconstruction des habitations en cause.”).
174 Experts Report, para. 149.
58
frankly acknowledges that its “desk research into potential property replacement
costs reveals no useful data.”175
123. Even as the Senogles Report recognises this evidentiary void, it tries
to fill it with conjecture, by stating that “the claimed replacement costs asserted by
the DRC are not unreasonable in their amounts, particularly given that the
overwhelming majority of the properties are being valued for claim purposes at
US$ 300 each.”176 Based on this conclusory statement, the Senogles Report adopts
the reconstruction costs alleged by the DRC.
124. This approach leads to an arbitrary result, especially since the
alleged reconstruction costs are wholly unfounded. Those costs, according to the
DRC’s response to the Court’s Question 14, are based on victim identification
forms where “some of the victims … described the dwellings they had lost and the
materials of which they were composed.”177 The DRC further asserted that
“[k]nowing the cost of such buildings in this region of the DRC”, it chose “the least
expensive possible price”. As Uganda previously showed, however, none of these
assertions is supported by evidence:
􀁸 First, many of the victim identification forms do not even specify the
location of houses, let alone prove any reconstruction costs through
competent evidence such as invoices, receipts, construction contracts,
or bank statements.
175 Ibid., para. 150.
176 Ibid., para. 151.
177 Response to the Court’s Questions of the Democratic Republic of the Congo (26 Nov. 2018)
(hereinafter “DRCRQ”) para. 14.5 (Translation by Counsel, original in French: “certaines victimes
… décrivaient les bâtiments qu’elles avaient perdus et les matières desquelles ils étaient faits”).
59
􀁸 Second, even though the DRC alleges it surveyed reconstruction costs
across different regions and selected the lowest numbers, it provides no
information about this survey or how it resulted in the estimated costs.
If such a survey had really been undertaken, the DRC should have
submitted it, or at least some supporting materials in the form of bills,
receipts or other documents that might corroborate the alleged costs.
􀁸 Third, the DRC has provided no other evidence of reconstruction costs
or estimates to support its claimed lump-sum amounts. For example, the
DRC could have obtained signed declarations from mayors or village
leaders, urban planners or building companies as to the average costs of
reconstructing houses at particular locations, based on their knowledge
as to the damage inflicted and the materials needed. But no such
information has been provided to the Court.
125. The mere fact that Mr Senogles’ “desk research” into potential
property replacement costs “reveals no useful data” does not justify accepting the
DRC’s alleged reconstruction costs, especially given that they are literally without
foundation.
126. In sum, although the Senogles Report recommends reducing the
amount the DRC claims for property losses in Ituri from US$ 12,956,200 to US$
5,270,200, the latter amount is as unfounded as the former and cannot be awarded.
b. Destruction of Infrastructure
127. The DRC seeks US$ 21,250,000 in compensation for the alleged
destruction of 200 schools, 50 health facilities and 50 office buildings in Ituri.178
178 DRCM, paras. 7.39-7.42.
60
The amount claimed for each 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.179
128. Uganda has previously shown that there is no basis on which the
Court can award the compensation claimed.180 Mr Senogles confirms that the DRC
has offered no evidence justifying its claim for US$ 21,250,000 but recommends
reducing that amount to US$ 15,937,500.181 His recommended amount cannot,
however, be awarded for two reasons.
􀁸 First, in purporting to establish the extent of damages, the Senogles
Report simply accepts the DRC’s unfounded assertions concerning the
179 DRCM, 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 regard 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,
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”.); Ibid., para. 7.40.
In regard 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”.); Ibid., para. 7.41.
180 UCM, paras. 7.35-7.48; UCDR, paras. 4.1-4.29.
181 Experts Report, para. 158.
61
number of allegedly destroyed schools, clinics and administrative
buildings, and ignores other materials that the DRC has put before the
Court that actually contradict those assertions.182
􀁸 Second, in assessing the relevant quantum, the Senogles Report
similarly accepts the DRC’s claimed “average costs” but arbitrarily
reduces them by what is termed an “evidentiary discount” of 25% even
as it admits that “no evidence is provided in respect of any” of the
average costs for infrastructure buildings.183
129. The first fundamental flaw in the Senogles Report is that it accepts
whole-cloth the unfounded numbers of infrastructure buildings allegedly destroyed
as claimed by the DRC. Citing the DRC Memorial, the Senogles Report states that
“the figure for the number of [200] schools destroyed can be verified to a report of
the Secretary General of the United Nations on the MONUC mission, dated 27 May
2003.”184 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. The cost of repairs
cannot be the same whether a school has been destroyed or required only minor
repairs. The report also does not attribute those damages to Uganda.
130. The Senogles Report also ignores other evidence available in the
case file, which does not corroborate—and, in fact, contradicts—the 200 figure that
the DRC plucks from the 2003 MONUC mission report. The UN Mapping Report,
which also examined the 2003 MONUC mission report, does not mention any
182 Ibid., paras. 155-156.
183 Ibid., para. 157.
184 Ibid., para. 155.
62
number of destroyed schools, let alone that Uganda is responsible for the
destruction of any school. Moreover, the number on which the Senogles Report
relies is contradicted by the DRC’s own “investigations”. Annex 1.3 to the DRC
Memorial, which the Mr Senogles ignores, contains a table entitled “Evaluation
Pertes des Biens” that lists only 18 schools and 12 kindergartens (“jardin scolaire”)
as having been “damaged”.185 But even these vastly smaller numbers are
unfounded as the DRC has presented no underlying documentation to support the
information listed in the summary table.
131. The same is true with respect to the 50 clinics and 50 administrative
buildings allegedly destroyed. The Senogles Report frankly admits that “they are
round sums,” which “inevitably makes them subject to uncertainties due to an
absence of detail or evidence in respect of each individual property.”186
Nonetheless, the report blithely accepts those numbers, ignoring that their sole
basis is the DRC’s assertion that it “deems reasonable to use” them.187
132. Such subjective assertions of reasonableness cannot form a basis for
the award of damages. This is especially so because the numbers alleged are, like
others, actually contradicted by other materials that the DRC presented to the
Court. For example, the Senogles Report ignores the table on “Valuation of
property damages in Ituri” included in Annex 1.3 of the DRC Memorial, which
185 “Evaluation Pertes des Biens” in file Victimes_PerteBien_ITURI, DRCM, Annex 1.3.
186 Experts Report, para. 156.
187 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”.); DRCM, para. 3.45(c), (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”.).
63
refers to the destruction of just seven hospitals and one dispensary.188 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 Uganda (or anyone else) is not established. Moreover, even if it
were accepted as reliable and true (quod non), the summary table would afford no
basis on which compensation could be assessed.
133. The second major flaw is that the Senogles Report merely accepts
the DRC’s alleged “average costs” for infrastructure buildings, even though it
admits that “no evidence is provided in respect of any” of them.189 Nominally to
take account of this deficiency, Mr Senogles applies an arbitrary “evidentiary
discount” of 25%.190 In Uganda’s view, no “evidentiary discount” can cure a total
lack of evidence. Any number times zero is still zero.
134. As stated, the DRC provides no 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.
These numbers appear to have been randomly selected for the purpose of this
litigation, and the Senogles Report provides no basis for thinking otherwise. Such
numbers do not even purport to be grounded in the actual repair or reconstruction
costs for the allegedly damaged schools, health facilities and office buildings. This
is all the more remarkable because 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
188 “Evaluation Pertes des Biens” in file Victimes_PerteBien_ITURI, pp. 41-42, 58, DRCM, Annex
1.3.
189 Experts Report, para. 157.
190 Ibid.
64
buildings. If any such repairs or reconstruction had actually been done, the DRC
would also be expected to have documentary evidence proving costs incurred. Yet
the DRC provided no such evidence in its Memorial. Nor did the DRC provide any
explanation, much less evidence, in its response to the Court’s Question 4.191
135. In conclusion, although the Senogles Report recommends reducing
the DRC’s claimed amount of US$ 15,937,500 to US$ 12,956,200, there is no basis
on which the Court can award even this reduced amount.
c. Looting
136. The DRC Memorial claims US$ 7,318,413 in compensation for
property allegedly looted in Ituri.192 Uganda has already showed that this claim is
without foundation.193 The Senogles Report similarly confirms that there is “no
practicable evidentiary basis on which to assess the claimed amount put
forward.”194 It nevertheless recommends US$ 3,659,206 in compensation under
this head of damages after applying an arbitrary “evidentiary discount” of 50%.195
137. The Court should not countenance such a haphazard approach,
especially where the party seeking compensation has not produced any evidence
on which compensation might credibly be assessed. As Uganda demonstrated in its
Counter-Memorial, the DRC offers no supporting evidence showing that the
property in question was actually looted, or that it was looted by Ugandan soldiers
or as a result of Uganda’s non-performance of its obligations as an occupying
191 UCDR, paras. 4.1-4.29.
192 DRCM, para. 7.43.
193 UCM, paras. 7.49-7.57.
194 Experts Report, para. 162.
195 Ibid., para. 163.
65
Power. Moreover, the DRC’s valuation of the property nominally looted is wholly
arbitrary. It has not adduced even a single document proving the ownership or 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.196
138. In sum, both the DRC’s claimed amount of US$ 7,318,413 and the
recommended amount of US$ 3,659,206 should be rejected as unfounded and
arbitrary.
2. Property Losses in Areas Other than Ituri
a. Property Losses in Kisangani, Beni, Butembo and
Gemena
139. The DRC claims US$ 25,628,075 in compensation for property
damage allegedly suffered in areas outside Ituri; namely, Kisangani, Beni,
Butembo and Gemena. The amount claimed is broken down as follows:
􀁸 US$ 17,323,998 for Kisangani197
􀁸 US$ 5,526,527 for Beni198
􀁸 US$ 2,680,000 for Butembo 199 and
􀁸 US$ 97,550 for Gemena200
196 UCM, paras. 7.52-7.57; UCDR, paras. 1.4-1.69.
197 DRCM, para. 4.71.
198 Ibid., paras. 2.87 and 7.46.
199 Ibid.
200 Ibid.
66
140. Uganda has already demonstrated that the amounts claimed are
unfounded.201 The Senogles Report agrees as much but rather than draw the logical
conclusions flowing therefrom, opts instead for arbitrary “evidentiary discounts”
of 25% in the cases of Beni, Butembo and Gemena,202 and 40% in the case of
Kisangani.203 This results in a recommended figure of US$ 16,632,776, as shown
in the table below204:
The DRC’s
Claimed Amount
Mr Senogles’
Recommended
Kisangani US$ 17,323,998 US$ 10,394,399
Beni US$ 5,526,527 US$ 4,163,570
Butembo US$ 2,680,000 US$ 2,010,022
Gemena US$ 97,550 US$ 64,785
US$ 25,628,075 US$ 16,632,776
141. As was true with respect to other elements of the DRC’s claim,
Uganda considers that applying such subjective “evidentiary discounts” is not an
acceptable means of dealing with a fundamental lack of evidence. That is all the
more true when the Senogles Report comes up with such “discounts” based on
nothing more than a perfunctory review and even misapprehension of the evidence
in this case.
142. As a threshold matter, the Senogles Report applies the stated
discounts to the wrong numbers. The DRC admitted in its response to Question 13
201 UCM, Chapter 7, Section II(B)-(C); UCDR, paras. 13.1-13.17.
202 Experts Report, para. 171.
203 Ibid., para. 172.
204 Ibid., para. 174.
67
that it had to make “substantive adjustments” to the amounts claimed in its
Memorial and “revised [them] downward” as follows:
􀁸 for Kisangani: originally US$ 17,323,998, now US$ 15,197,287.33
􀁸 for Beni: originally US$ 5,526,527, now US$ 5,022,087
􀁸 for Butembo: originally US$ 2,680,000, now US$ 2,616,444205
143. The fact that the DRC revised its claim downward by more than
US$ 2,000,000 at the late stage of the proceedings, without explaining why or how
it made those “substantive adjustments,” by itself raises serious concerns about the
accuracy of the DRC’s claims and inspires little confidence in the current numbers.
It is equally disconcerting that the Senogles Report ignores the adjusted amounts
and instead applies the proposed “evidentiary discounts” to the originally made,
but since abandoned, claims of the DRC. Such a simple yet obvious mistake raises
concerns in Uganda’s view about the expert’s reliability writ large. Equally
concerning, here again, the Senogles Report appears to have accepted the DRC’s
numbers at face value without testing their accuracy against the evidence in this
case, while ignoring the many contradictions in the DRC’s own materials.206
144. This is a significant oversight. The DRC purports to derive the sums
it seeks from the EVADO 1.1 software it created for purposes of this litigation.
According to the DRC, this software nominally relies on numbers derived from its
valuation lists, which in turn are derived from its “victim identification forms”.
205 DRCRQ, paras. 1, 13.1, 13.3.
206 As Uganda showed in its Counter-Memorial, the numbers for Beni, Butembo and Gemena, stated
in The DRC’s 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. UCM, paras. 7.132-7.134. The DRC has never explained those
contradictions.
68
However, as Uganda demonstrated in its comments to the DRC’s responses to
Questions 1 and 13,207 the DRC’s victim identification forms entirely lack
supporting evidence for either the damages alleged or their valuation. Indeed, many
of the forms do not even specify the damages alleged or valuations claimed. The
amounts stated in the valuation lists corresponding to such forms appear to be
nothing more than arbitrary lump sum amounts for which no explanation or
justification is offered.
145. When such baseless numbers are fed into the “EVADO 1.1”
software, the resulting figures are equally unfounded. The point is illustrated by
many examples that Uganda identified in both its Counter-Memorial and its
comments to the DRC’s responses to Questions 1 and 13.208 Uganda considers it
as disturbing as it is striking that the Senogles Report does not even attempt to
analyse any of those examples, all of which serve to illustrate the baselessness of
the DRC’s claims for property loss and damage in Beni, Butembo and Kisangani.
146. For all these reasons, the Senogles Report’s recommended
compensation in the amount of US$ 16,632,776 should not be accepted because it
is no less arbitrary that the original amount claimed by the DRC.
b. Property of la Société Nationale d'Electricité SA
(“SNEL”)
147. The DRC also seeks compensation in the amount of US$ 97,412,090
on behalf of the National Electricity Company (Société Nationale d’Électricité
207 UCDR, Questions 1 and 13.
208 UCM, Chapter 7, Section II(B)-(C); UCDR, Questions 1 and 13.
69
(“SNEL”)), a Congolese public company.209 With respect to this claim too, Uganda
previously showed that it is without foundation.210 The Senogles Report essentially
agrees, but nevertheless recommends compensation in the amount of US$
56,974,865211 after applying a 40% “evidentiary discount” to the amount claimed
to account for the evident “methodological overstatements and other evidentiary
gaps”.212
148. The Senogles Report does not explain why 40% is an appropriate
“evidentiary discount”. Applying a random discount to an unfounded claim does
not make the recommended amount any more grounded in evidence or any less
arbitrary.
149. Three clear findings from the Senogles Report confirm that the
amount the DRC claims in respect of SNEL is unsupported, flawed and overstated:
􀁸 First, SNEL’s 17-page damages report is devoid of evidence supporting
the alleged damages listed in its summary tables. The Senogles Report
observes that “[n]o annexes containing underlying details or evidence
appear to have been referenced by, or attached to, the SNEL report;”213
and that SNEL’s report “provides no detailed backup calculations or
underlying evidence supporting the various replacement costs or
209 Société nationale d’électricité (SNEL), Réclamation, N/Réf/DG/2016/4208 (9 juin 2016), p. 4,
DRCM Annex 4.26.
210 UCM, paras. 7.98-7.115.
211 Experts Report, paras. 180-181.
212 Ibid., para. 180.
213 Ibid., para. 178(d).
70
services claimed.”214 SNEL’s report thus gives no answer to such basic
issues as the time, origin, existence and extent of the claimed damages.
􀁸 Second, SNEL’s valuation methodology is not only incorrect but also
inapplicable in this case. As the Senogles Report notes, the valuation
methodology “adopted by SNEL is that of (new) replacement cost, even
though many assets destroyed or lost were identified as having been
aged at the time.”215 It would have been “more appropriate for the DRC
and SNEL to present this claim using a ‘depreciated replacement cost’
approach.”216 Therefore, “the adoption of a ‘new for old’ replacement
cost approach requires to be adjusted for since, as SNEL acknowledges,
much of the equipment destroyed was already old and heavily used.”217
􀁸 Third, the claimed amount is inflated. As an example of “a
methodological overstatement in the calculations,”218 the Senogles
Report points out that SNEL calculated the alleged lost revenues “for
an 8-year period of war (“1998-2005”) which goes beyond the findings
of the Court in its December 2005 judgement.”219 Therefore, “this
claim[ed] amount needs to be reduced from eight to five years.”220
Correcting this mistake reduces the claimed amount “from US$
214 Ibid., para. 179.
215 Ibid., para. 178(b).
216 Ibid.
217 Ibid., para. 179.
218 Ibid., para. 178(e).
219 Ibid.
220 Ibid.
71
6,543,953 to US$ 4,089,970 (a reduction of US$ 2,453,983)”.221
Although “the overstatement in the loss of revenue claim item must be
adjusted for,” the Senogles Report concludes that this glaring mistake
“leads to an inference that other claim components may also contain
overstatements.”222
150. By the same token, the Senogles Report overlooks other material
and incurable deficiencies infecting SNEL’s report. First, Mr Senogles ignores
other examples that underscore the arbitrary nature of the claimed amount. For
example, the single largest element of the SNEL claim concerns “Dégâts et forfait
humains” (“human damage and loss”), which the SNEL claims to be US$
27,163,539.223 This claim rests on nothing more than vague, sometimes inscrutable,
assertions presented in a summary table that, like the report itself, is unsigned.224
Some assertions in the table are also incomplete. For example, the table states that
“before the conflict the centre had … agents,… were transferred … agents were
dead”.225 (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
221 Ibid.
222 Ibid., para. 179.
223 Société nationale d’électricité (SNEL), Réclamation, N/Réf/DG/2016/4208 (9 juin 2016), p. 4,
DRCM Annex 4.26. The actual number claimed is “US$ 27 163 539,11”.
224 Ibid., p. 5, DRCM Annex 4.26, 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 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”.).
225 Ibid. (Translation by Counsel, original in French: “Avant les hostilités, le centre avait avait [sic]
… agents… ont été mutés… agents étaient morts”.).
72
unintelligible; for example, the phrase: “project no agent except the agents of the
project”.226
151. The most that could possibly be gleaned from the summary table on
the most charitable reading 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. Uganda
considers that such an obscure and limited set of “facts” cannot possibly justify a
claim exceeding US$ 27 million. Further, aside from failing to prove that any damage
actually occurred, the DRC has also failed to present any evidence, let alone
convincing evidence, linking the alleged damages to specific wrongful actions
attributable to Uganda.
152. The same is true with respect to the six other elements of the SNEL
claim, which total approximately US$ 70 million.227 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
equipment of thermal power plants,” which appears on page 6 of the 2016 SNEL
report and is absent from Mr Senogles’ analysis:
226 Ibid. (Translation by Counsel, original in French: “Projet pas d’agent sauf les agents du projet”.).
227 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).
73
153. The DRC thus bases a claim for nearly US$ 24 million on nothing
more than one unsigned and unsupported table, which simply lists a number of
locations and a number of values of electrical equipment with no information about
74
the alleged date, extent or other circumstances of the harm to that equipment (or
who inflicted that harm).228 The Experts Report is silent on this glaring flaw.
154. Second, the Senogles Report conducted a perfunctory analysis of
the claimed lost profits. While it correctly identifies that SNEL inflates the alleged
lost profits, it nevertheless ignores other inflated and speculative aspects of this
claim.
155. As stated, the lost revenues claimed cover a period of eight years,
from 1998 to 2005. To determine how much revenue was lost at the two plants
during each of these eight years, the authors of the SNEL report decided to estimate
lost revenues during the years 2004, 2005 and 2007, and then to calculate an
average across those three years that they applied retroactively across all eight
years. For each of the years 2004, 2005 and 2007, global revenues (“recettes
globales”) for all of SNEL and estimated revenues (“recettes estimées”) for the
Kisangani and Gbadolite plants are listed.229 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% of global revenues while
Gbadolite generated 2% of global revenues (to determine these percentages, the
228 Similarly unsigned and unsupported tables form the sole basis for the other categories of SNEL’s
claim: the claim of “Destruction of MT/MT stations and MT/BT booths” (“Destruction des postes
MT/MT et cabines MT/BT”) in 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 catch-all 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.
229 Société nationale d’électricité (SNEL), Réclamation, N/Réf/DG/2016/4208 (9 juin 2016),
DRCM Annex 4.26.
75
Commentary says it relied upon 2013-2015 data).230 Yet nowhere does SNEL’s
report establish that these hydroelectric plants in fact were damaged, in whole or
in part. Further, any meaningful calculation of lost profits should have been based
on revenues made before August 1998—information that should be readily
available to SNEL—not on revenues dating to after the withdrawal of Ugandan
armed forces. In short, the SNEL report is so fundamentally flawed and misguided
that it cannot serve as a basis for determining lost profits, if any.
156. Whether the claim on behalf of SNEL is taken as a whole, or viewed
piece-by-piece, the conclusion is the same: applying a 40% “evidentiary
discount”—or, indeed, any discount—to a wholly unfounded claim leads to an
equally arbitrary result that is incompatible with the fundamental rules governing
damages in inter-State proceedings. For all these reasons, the recommended amount
of US$ 56,974,865 in the Senogles Report should be rejected.
c. Property of the Congolese Military Forces
157. The DRC seeks US$ 69,417,192 in compensation for the “material
damages” allegedly suffered by the Congolese army.231 Uganda previously
demonstrated that this claim too is unfounded.232 Here again, the Senogles Report
essentially agrees with that conclusion but nevertheless recommends US$ 41,650,
315 as an appropriate amount of compensation under this head of damages.
230 Société nationale d’électricité (SNEL), Réclamation, N/Réf/DG/2016/4208 (9 juin 2016),
DRCM Annex 4.26.
231 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”.). Uganda showed in the Counter-Memorial on
Reparation that there is no basis to award compensation for this head of damage. UCM, paras.
7.139-7.150.
232 UCM, Chapter 7, Section II(D).
76
158. As elsewhere, the Court should not accept the recommended
amount because it also results from the application of an arbitrary 40% “evidentiary
discount” to the claimed amount, despite Mr Senogles’ recognition that the DRC’s
claim is unfounded and unverifiable.
159. The Senogles Report acknowledges that the DRC’s claim rests
solely on two summary tables233 prepared by a high-ranking officer of the
Congolese Army on 31 August 2016, just two weeks before the DRC submitted its
Memorial to the Court.234 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.
233 Experts Report, para. 182.
234 The Court has routinely disregarded materials prepared by interested persons for purposes of
litigation years after alleged events in question. See, e.g., Armed Activities (2005), paras. 64, 125.
77
78
79
160. The Senogles Report confirms that “no other evidence in support
has been seen”.235 To underscore the speculative and arbitrary nature of the DRC’s
claim, the Senogles Report refers to such “high value items” as:
“a. Two ships (each one valued at over US$ 21 million);
b. 400 tonnes of material and munitions (valued at US$
30,000/tonne, making a total claim value of US$ 12 million); and
c. 800 tonnes of munitions (valued at 10,000/tonne, making a total
claim value of US$ 8 million).”236
161. Like Uganda, the Senogles Report shows that the DRC does not
offer any evidence of the sort that one might have expected:
“Given the materiality of these three line items, I would have
expected to see documentary support that could have included:
a. Evidence in supporting for the events that caused
the loss of each vessel, including the type, age and
identifying name of each vessel;
b. Evidence supporting the vessels’ claimed unit
value/cost of US$ 21,375,000; and
c. Evidence for the unit value/cost of each tonne of
munitions.”237
162. Indeed, Mr Senogles even admits that it is not possible to verify the
DRC’s claim:
“In the absence of further details it has not proved possible for me
to independently verify the claimed loss of these significant (and
235 Experts Report, para. 183.
236 Ibid., para. 184.
237 Ibid., para. 186.
80
potentially individually identifiable) military assets’ or indeed, their
unit values.”238
163. In such circumstances, Uganda considers that applying an
unexplained “evidentiary discount factor” of 40% as the basis for the
“recommended amount of US$ 41,650,315”239 is not only arbitrary, but also unfair,
all the more given that Mr Senogles himself rightly recognises that “significant
evidentiary gaps remain – gaps that the DRC should reasonably have foreseen and
rectified in advance of submitting [its] claim to the Court.”240
164. In sum, even assuming that damage to military hardware and
material suffered during an armed conflict is a compensable head of damages, there
is no basis for the Court to award the amount of US$ 41,650,315 recommended in
the Senogles Report.
238 Ibid., para. 187.
239 Ibid., para. 188.
240 Ibid.
81
IV. OBSERVATIONS ON THE NEST REPORT
165. The last of the reports included in the Experts Report is entitled
“Exploitation of Natural Resources” and was prepared by Dr Michael Nest (“Nest
Report”). In his report, Dr Nest attempts to estimate “quantity and value [of natural
resources] that w[ere] ‘illegally exploited’ in the Ugandan area of influence (UAI)
in the territory of the Democratic Republic of the Congo (DRC) between 1998 and
2003”.241
166. The Nest Report confirms what Uganda has already showed—that
the compensation the DRC claims for natural resources are unfounded.242 This is
immediately apparent from the substantial difference between the amounts the
DRC claims for certain commodities and those Mr Nest recommends, as reflected
in the table below:
Amount Claimed by the
DRC
Amount Recommended
by Mr Nest
Gold US$ 675,541,972243 US$ 42,846,866
Diamonds US$ 7,055,885244 US$ 6,039,299
Coltan US$ 2,915,880245 US$ 375,487
Timber US$ 100,000,000246 US$ 3,438,704
Tin (cassiterite) (Nothing) US$ 257,667
Tungsten (wolframite) (Nothing) US$ 82,147
Coffee (Nothing) US$ 2,769,372
TOTAL US$ 785,513,737 US$ 55,809,542247
241 Experts Report, para. 192.
242 UCM, Chapter 8.
243 DRCM, para. 5.190.
244 Ibid.
245 Ibid.
246 Ibid., paras. 5.173, 5.190.
247 Experts Report, para. 197.
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167. The total amount recommended is roughly 14 times less than the
total amount claimed—even with Mr Nest’s addition of three commodities (tin,
tungsten, and coffee) with respect to which the DRC itself has made no claim. As
such, the Nest Report demonstrates that the evidence placed by the DRC before the
Court cannot support the amounts that the DRC seeks.
168. At the same time, the mere fact that the amounts Mr Nest
recommends as reparation for the listed commodities are significantly lower than
those claimed by the DRC does not mean those amounts are well-founded. To the
contrary, the approach by which Mr Nest arrived at these numbers suffers from at
least two basic flaws:
􀁸 First, the parts of the Nest Report estimating the quantity and value of
tin (cassiterite), tungsten (wolframite) and coffee are ultra petita,
because they recommend reparations for things that the DRC has never
claimed.
􀁸 Second, the Nest Report employs a highly subjective methodology that
departs significantly from the methods required for proving damages
for the illegal exploitation of natural resources and, as such, yields
arbitrary results that effectively invite the Court to issue a decision ex
aequo et bono.
169. Uganda addresses these flaws in turn.
A. Parts of the Nest Report are Ultra Petita
170. The Nest Report estimated the quantity and value of tin (cassiterite),
tungsten (wolframite) and coffee. Those estimates should, however, be disregarded
because they are ultra petita.
83
171. As explained above, the rule of non ultra petita precludes awarding
a party more than it requested.248 At no point in these proceedings has the DRC
claimed compensation for tin (cassiterite), tungsten (wolframite), or coffee. Nor
has it proved any damages or provided any valuations with respect to these three
resources. Insofar as commodities are concerned, the DRC has limited its claims to
the alleged illegal exploitation of gold, diamonds, coltan, and timber. Any
consideration of damages must therefore be limited to these resources.
172. It follows that the Court should reject the recommended estimates
for tin (cassiterite), tungsten (wolframite) and coffee.249
B. The Estimates Recommended in the Nest Report Are
Unfounded and Arbitrary
173. Mr Nest commits the same fundamental error as the DRC in
estimating the quantity and value of illegally exploited natural resources: he
concocts a highly subjective methodology that bears no connection to the standard
methods for proving the existence and valuation of damages. Indeed, Mr Nest’s
methodology departs so far from standard practices that he arrives at arbitrary
numbers that effectively invite the Court to award compensation ex aequo et bono.
174. As Uganda has previously underscored, relevant international
practice requires that the existence and valuation of damages resulting from the
illegal exploitation of natural resources be proved by specific evidence as to the (1)
time, (2) place, (3) amount of resources extracted, and (4) the valuation thereof.250
248 See supra Section II.F.
249 Uganda sees no need at this stage to burden the Court with its substantive observations on the
elements of the Nest Report relating to tin (cassiterite), tungsten (wolframite) and coffee. However,
it reserves the right to do so at the oral hearings should it prove necessary.
250 See UCM, paras. 8.4-8.15.
84
The Court recognized as much in Question 5 to the DRC, which asked whether the
DRC “could provide the Court with evidence regarding the locations, ownership,
average production, and concessions or licenses for each mine and forest for which
it claims compensation for illegal exploitation by Uganda.”251 The DRC’s response
did not do that.252 Nor has Mr. Nest filled this gaping void. His report does not
tackle any of these elements, let alone all of them.
175. Instead, Mr Nest develops a highly subjective methodology to
estimate the quantity and value of selected natural resources. He describes his
methodology as involving eight steps:
“202.1 Identifying the distribution of resources within UAI
[the Ugandan area of influence].
202.2 Estimating the distribution of each resource between
Ituri and non-Ituri in the form of a percentage.
202.3 Estimating the quantity of resources produced.
202.4 Estimating the percentage of value extracted by
different methods of exploitation.
202.5 Estimating an appropriate price per unit (kilogram or
carat) for each resource.
202.6 Estimating value exploited from these resources by
personnel.
202.7 Adjusting the value of exploitation into 2020 USD
to reflect current prices.
251 The Court’s Questions to the Parties, Question 5 (11 June 2018).
252 See generally DRCRQ, Response to Question 5.
85
202.8 Estimating value of each resources exploited in Ituri
and non-Ituri.”253
176. At every step along this path, Mr Nest relies on unfounded and
uncorroborated allegations from questionable sources, engages in speculative
assumptions, and develops arbitrary discount factors. This leads to recommended
amounts that are no more scientific, rigorous, or well-founded than those claimed
by the DRC.
177. Uganda will not burden the Court at this stage with an exhaustive
exegesis detailing all the myriad evidentiary and methodological flaws infecting
the Nest Report; the same basic points made with respect to the DRC’s
methodology apply to the Nest Report as well. At this stage, Uganda will focus
only on three fundamental flaws relating to (1) the quantity of resources produced
and their geographic distribution; (2) the average prices of resources; and (3) the
proxy taxes for estimating the exploitation value. Each of these elements by itself
is sufficient to disregard the estimates Mr Nest proposes.
1. Quantity of Resources Produced and Their Geographic
Distribution
178. An integral element in Mr Nest’s methodology is his estimate of the
quantity of resources allegedly produced and their geographic distribution.254 Mr
Nest acknowledges that there were challenges in estimating quantities of resources
and their distribution between what he calls the Ugandan area of influence (“UAI”)
and outside the UAI, as well as Ituri and non-Ituri areas.255 Among the many
253 Experts Report, paras. 202.1-202.8.
254 Ibid., paras. 208-270.
255 Ibid., para. 208.
86
challenges Mr Nest identifies is that “available data are incomplete, and it was often
unclear what portion of production came from UAI.”256 How does he resolve this
challenge? He explains as follows:
“The incompleteness of data meant other sources of information had
to be relied on to inform estimates about resource distribution and
quantities, including maps of deposits, anecdotal descriptions of
resource distribution from field observations in THE DRC, or
production data had to combined from several sources.”257
179. This erroneous first step sent Mr Nest down the wrong path. Instead
of evidence, he turns to “estimates” based on general maps, anecdotes and other
sources that render his recommendations purely speculative. This approach sets Mr
Nest onto a wrong path. One example is Mr Nest’s misguided attempt to use “the
gap between Uganda’s production of a resource and the quantity of its exports” to
assume that “when there were more exports than production…this ‘surplus’ was
originated in the DRC.”258 He does this, for example, with respect to gold,259 coltan,
tin (cassiterite) and tungsten (wolframite),260 and coffee.261 Mr Nest falls into the
same error as the DRC and the first UN Panel of Experts before it, both of whom
purported to rely on this same “exports – domestic production” model. Uganda
detailed the many problems with this approach in its Counter-Memorial,262 among
which is that it plainly contradicts the Court’s express finding in the 2005 Judgment
256 Ibid., para. 208.1.
257 Ibid., para. 206.
258 Ibid., para. 229.
259 Ibid., para. 236.
260 Ibid., para. 241.
261 Ibid., para. 249.
262 UCM, paras. 8.47-8.93.
87
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.”263 In other words, using
macro-statistics about official Uganda production and export of natural resources
is not consistent with the Court’s conclusion that there was no Uganda
governmental policy favouring exploitation of DRC natural resources; any such
exploitation would have had to occur outside the normal, public accounting of
natural resource production by and exports from Uganda.
180. Mr Nest also makes arbitrary assumptions to estimate the
proportions of resources within the UAI and Ituri.264 He assumes, for example, that
“around 45% of gold production in UAI probably came from Ituri, and around 55%
from non-Ituri.”265 But he offers no explanation for this assumption and how he
extrapolates these percentages from the sources he cites. The same defect underlies
his assumptions with respect to other resources.266
181. Mr Nest’ estimates of the quantity of resources allegedly produced
and their geographic distribution are thus based on purely inapposite sources and
speculative assumptions.
2. Annual Average Prices of Resources
182. Another element integral to Mr Nest’s methodology is his estimate
of the annual average prices of resources. He uses this estimate to calculate the
263 Armed Activities (2005), para. 242.
264 Experts Report, paras. 231-270.
265 Ibid., para. 254.
266 Experts Report, paras. 257, 260, 262, 264, 267, 270.
88
value of nominally exploited resources.267 He purports to determine the annual
average price in three steps:
“271.1 Identifying base annual average prices for 1998-2003
(either an international price or a price specifically
identified as relevant to the DRC, such as ComTrade
data for imports from the DRC).
271.2 Discounting base prices by an appropriate amount to
reflect probable prices relevant for producers, traders
and exporters in UAI. This report calls this the
‘adopted price’.
271.3 Adjusting adopted prices into 2020 USD by ‘inflating’
them using a standard rate.”268
183. On this basis, Mr Nest comes up with annual average resource
prices shown in the table below (reproduced from paragraph 274 of the Experts
Report):
267 Ibid., paras. 271-304.
268 Ibid., paras. 271.1-271.3.
89
184. The recommended annual average resource prices suffer from three
basic flaws. First, Mr Nest derives his “base prices” from export and import prices,
which reflect the market value of the nominally exploited resources.269 He
overlooks the fact that the DRC seeks damages not for lost exports but for the
alleged illegal exploitation of mineral resources. The measure of any loss to the
DRC from the illegal exploitation of mineral resources is not the commercial value
of the minerals on the open market, as Mr Nest erroneously assumes. Rather, it is
the net loss in value to the State from the exploitation of those resources. If the
State owned the mine, for example, the loss to the DRC would be the value of
extracted minerals less the costs incurred in extracting and transporting (and
possibly refining) those minerals for sale. If a private party owned the mine, the
269 Ibid., paras. 276, 278, 280, 293, 299.
90
DRC’s loss would be limited to foregone tax income, royalties or other fees payable
to the State. Because Mr Nest erroneously relies on the alleged commercial value
of the pertinent resources to develop “his base prices,” his methodology inevitably
inflates the value of the damages.
185. Second, as highlighted in the table above, Mr Nest discounts his
“base prices” by 35% to reflect what he conjectures would have been “probable
prices relevant for producers, traders and exporters.”270 In this manner, he arrives
at the “adopted price”. But this price is entirely arbitrary, because Mr Nest does not
explain why he chose 35% as opposed to any other figure.
186. Finally, Mr. Nest compounds the problem by adjusting the adopted
prices to “2020 USD by ‘inflating’ them using a standard rate.”271 As highlighted
in the table above, the inflator rates are different for each year. But they do have
one thing in common: they appear to have been selected at random. Mr Nest
nowhere explains on what basis he purports to derive these “inflators”.
187. In sum, because Mr Nest used inapplicable base prices and then
adjusted them by arbitrary factors, the annual average resource prices are
intrinsically flawed. This problem by itself renders Mr Nest’s valuations unreliable.
3. Proxy Taxes for Estimating the Exploitation Value
188. Mr Nest’s methodology also includes what he calls “proxy taxes”
for “theft”, “fees and licences”, and “sales and exports”, which are stated as
270 Ibid., para. 271.2.
271 Ibid., para. 271.3.
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percentages in the table below (reproduced from paragraph 119 of the Experts
Report):
189. Mr Nest uses these “proxy taxes” to estimate the total value of
natural resources allegedly exploited by applying them to the estimated quantity of
resources nominally produced in the DRC.
190. Like other numbers in Mr Nest’s model, these taxes are unfounded
and arbitrary. Illustrative in this respect is the manner in which Mr Nest derives
two of these categories of proxy taxes: “fees and licences,” and “sales and exports”.
He purports to calculate them from the alleged fees, licences and taxes summarized
in the following table, which is attached as Annex 4 to his report:272
272 Ibid., para. 323.
92
93
94
191. The information in this table only underscores the unfounded nature
of Mr Nest’s proposed “proxy taxes”. First, the economic data upon which he relies
are a hodgepodge of inconsistent numbers reflecting different values, often with
wide ranges, from uncorroborated sources. Publications by Johnson and Tegera are
the most frequently cited source by Mr Nest for the dollar amounts and percentages.
Yet those numbers, as the above table shows, are inapposite because they have
nothing to do with Uganda and concern events after Uganda’s withdrawal from the
DRC.273
192. Second, nearly all of the data have no direct connection to Uganda
or UPDF personnel, but rather refer to other States, the DRC and/or Congolese
rebels. Taxes and levies collected by third parties cannot serve as a reliable basis
on which to extrapolate proxy taxes on Uganda and UPDF personnel. Indeed, only
one entry among the sources cited in the table vaguely refers to “Ugandan local
commanders and some of the soldiers.”274 And even this reference comes from the
273 See e.g. Expert Report, Table in Annex 4, referring to “Gold (Johnson and Tegera 2007: 94);”
“Gold (Johnson and Tegera 2007: 87);” “Gold, industrial (Johnson and Tegera 2007: 24);”
“Diamonds (Johnson and Tegera 2005: 97);” “Diamonds, industrial (Johnson and Tegera 2007:
24).”
274 Experts Report, Table in Annex 4 citing to “(UNPE 2001a: §59)”.
95
unsupported allegations of the discredited and criticized first UN Panel of Experts
report.275
193. Third, more than ten references in the table above refer to dates that
fall outside the temporal scope that is limited to August 1998-May 2003.
194. Fourth, many references relate to areas outside what Mr Nest calls
the “Ugandan area of influence.276
195. Such inherently unreliable data lead to inherently arbitrary results.
Consider, for example, how Mr Nest comes up with his proposed “proxy taxes” for
diamonds:
“The tax on diamonds is estimated at 20% even though the reported
taxes range from 4-15%, because the rate is unlikely to be less than
minerals, which are higher than this range. There is no apparent
reason for a tax on diamonds to be less than for gold, but there is
also no evidence that it was the same as for gold. Thus, while the
tax rate for diamonds may have been more, I cannot be sure. 20% is
a conservative confident estimate.277
196. This conclusion is untenable. As the above table from Annex 4
confirms, the data Mr Nest relies on come primarily from a single source—
publications by Johnson and Tegera that contain inapposite and inapplicable values
because they relate to duties that the DRC imposed on the Congolese export of
diamonds in 2005 and 2007.278 Moreover, no source Mr Nest cites shows that
Uganda or UPDF personnel collected the alleged taxes. Rather, as the data
275 UCM, paras. 8.11, 8.49.
276 Experts Report, para. 192.
277 Ibid., para. 340.
278 See Annex 4 of the Nest Report referring to “(Johnson and Tegera 2005:97)”, “(Johnson and
Tegera 2007:24)”.
96
summarized in Mr Nest’s Annex 4 show, they were collected by Rwanda,
Congolese rebels, or the DRC. For example, Mr Nest relies on the UNPE report as
a source on the 15% tax on diamonds, which states:
“Statistics from credible sources also showed that diamond exports
from Rwanda to Antwerp, in contrast to Uganda, have not increased.
They informed the Panel that the reason behind this is the Rwandan
Congo desk’s relatively high tax (10 per cent) levied on the export
of diamonds from the Democratic Republic of the Congo, added to
the 5 per cent tax charged by the Congolese rebel administration.
These taxes have driven many of the artisanal miners from the
Kisangani area to smuggle their production through the Central
African Republic and the Republic of the Congo. Diamonds are also
reportedly transported personally by Asian and Lebanese traders
operating in the eastern region, to South Africa and to Belgium and
other European countries.”279
197. It is thus unclear to Uganda how Mr Nest can credibly apply to
Uganda the tax on diamonds at 20% by relying on data that have nothing to do with
Uganda and by equating this tax with the tax on gold, especially when he himself
admits that “there is also no evidence that [a tax on diamonds] was the same as for
gold.”280 And yet Mr Nest uses this estimated 20% proxy tax on diamonds as part
of his formula for recommending US$ 7,000,000 in reparation for the alleged
illegal exploitation of diamonds.
198. Still another example of the arbitrariness that infects Mr. Nest’s
approach is his estimated tax on timber. He claims to calculate it as follows:
“The reported tax on timber of 6% was only for exports from North
Kivu in 2006 (Johnson and Tegera 2007) and does not include any
other taxes on value. The working estimate was increased to 8% to
include the probability that during the context of conflict from 1998-
279 See Annex 4 of the Nest Report referring to “(UNPE 2001b: §46)”.
280 Experts Report, para. 340.
97
2003, other taxes on value were also levied, such as at the point of
production, trade or while in transit.”281
199. This conclusion is pure speculation. As the table above from Annex
4 confirms, Mr Nest picks 6% from a single a publication by Johnson and Tegera,
which refers to duties that the DRC imposed on the Congolese export of “untreated
timber” in 2007.282 Then he chooses to increase it to 8% “to include the probability”
that “other taxes on value were also levied”, without articulating any support for
that conclusion. And yet this speculative 8% tax on timber is one of the critical
variables used in Mr Nest calculations for recommending that Uganda pay
reparations in the amount of US$ 3,438,704 for the illegal exploitation of timber.
200. Because these and other approximations of the taxes used for Mr
Nest’s model are unfounded and arbitrary, the resulting estimates of the total value
of all natural resources in his report are equally unfounded and arbitrary.
* * *
201. Uganda reserves its right to present additional observations on other
elements of the Nest Report at the oral hearings. At the same time, it considers that
the fundamental flaws highlighted in these observations themselves more than
adequately demonstrate that Mr Nest’s methodology is very far removed from what
is required to establish damages in inter-State proceedings. In Uganda’s view,
conjecture based on speculation multiplied by arbitrary percentages, discounts or
proxy taxes cannot be allowed to substitute actual evidence.
202. The solution in such circumstances must be the one the Court
adopted in Costa Rica v. Nicaragua, where it rejected damage claims unsupported
281 Ibid., para. 342.
282 See Annex 4 of the Nest Report referring to “(Johnson and Tegera 2007:24”).
98
by the evidence.283 Doing otherwise and accepting any of the recommendations
presented in the Nest Report would effectively amount to impermissibly issuing a
decision ex aequo et bono.
283 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Compensation, Judgment, I.C.J. Reports 2018, para. 103.
99
Respectfully submitted,
___________________________________
Mr. William Byaruhanga, SC
Attorney General of the Republic of Uganda
AGENT OF THE REPUBLIC OF UGANDA
15 February 2021