Observations of the Democratic Republic of the Congo on the Experts report of 19 December 2020

Note: This translation has been prepared by the Registry for internal purposes and has no official
character
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO
(DEMOCRATIC REPUBLIC OF THE CONGO v. UGANDA)
SECOND PHASE
QUESTION OF REPARATION
OBSERVATIONS OF THE DEMOCRATIC REPUBLIC OF THE CONGO
ON THE EXPERTS’ REPORT OF 19 DECEMBER 2020
14 February 2021
[Translation by the Registry]
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1. On 8 July 2020, the Registrar of the Court informed the Parties that the Court considered it
necessary to arrange for an expert opinion, pursuant to Article 67, paragraph 1, of its Rules, with
respect to three heads of damage identified by the Democratic Republic of the Congo (DRC) in its
written pleadings: loss of human life, loss of natural resources, and property damage.
2. By an Order of 8 September 2020, the Court decided to obtain this expert opinion
“[f]or the purposes of determining the reparation owed to the Democratic Republic of
the Congo by Uganda for the injury caused as a result of the breach by Uganda of its
international obligations, as determined by the Court in its 2005 Judgment”1.
3. After receiving each Party’s observations on the four independent experts it had identified
to carry out the expert opinion it deemed necessary, the Court appointed the experts by an Order
dated 12 October 2020. In that Order, the Court recalled that the Parties would have the opportunity
to comment on the experts’ report and to put questions to the experts in the course of the oral
proceedings. It also noted that “it w[ould] be for the Court to determine what weight, if any, to be
given to the assessments contained in the expert report”2.
4. Further to the Court’s request, the experts delivered their report on 19 December 2020, and
the Court asked the Parties to submit their observations by 21 January 2021 at the latest. In response
to a request by Uganda, the Court agreed to extend to 15 February 2021 the time-limit for the
submission of the Parties’ observations on the experts’ report. The latter comprises four distinct
reports, which should nonetheless be read together. The present document sets out the DRC’s
observations on the experts’ report. These observations are preliminary in nature and will be kept
relatively brief. They are without prejudice to any additional observations or clarifications that the
DRC may find it necessary to make in the oral proceedings. They are, of course, also without
prejudice to the final claim that the DRC will submit to the Court, after it has become acquainted
with the written observations of Uganda and when it reads out its final submissions at the close of
the hearings, pursuant to Article 60, paragraph 2, of the Rules of Court.
5. Before setting out its observations, the DRC would like to recall, as it noted on filing its
Memorial on the merits, that beyond specific discussions on any particular event, evidentiary
document or expert opinion, it is appropriate to adhere in general to the principle of full reparation:
reparation must indeed cover all the damage caused by a wrongful act. This principle was expressly
recalled in the 2005 Judgment on the merits: Uganda “is under an obligation to make full reparation
for the injury caused” by its wrongful acts3. It is codified in the work of the International Law
Commission on State responsibility4 and has been enshrined in international jurisprudence, including
that of the Court5.
6. The DRC’s observations will be presented in four parts. First, the DRC will set out its
general views on the methodology and scope of the experts’ reports (I). It will then put forward more
1 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Order of
8 September 2020, para. 16; emphasis added.
2 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Order of
12 October 2020, p. 3.
3 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment,
I.C.J. Reports 2005, p. 257, para. 259; emphasis added.
4 Art. 31 of the articles on the responsibility of States for internationally wrongful acts, A/RES/56/83, 12 Dec. 2001.
5 Memorial on Reparation of the Democratic Republic of the Congo (MRDRC), 2016, para. 1.02.
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specific considerations relating to personal injury (II), the exploitation of natural resources (III) and
property damage (IV), respectively.
I. THE GENERAL METHODOLOGY AND SCOPE OF THE EXPERTS’ REPORTS
7. The terms of reference that the Court provided to the experts are as follows:
“1. Loss of human life
(a) Based on the evidence available in the case file and documents publicly available,
particularly the UN Reports mentioned in the 2005 Judgment, what is the global
estimate of the lives lost among the civilian population (broken down by manner of
death) due to the armed conflict on the territory of the Democratic Republic of the
Congo in the relevant period?
(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?
2. Loss of natural resources
(a) Based on the evidence available in the case file and documents publicly available,
particularly the UN Reports mentioned in the 2005 Judgment, what is the
approximate quantity of natural resources, such as gold, diamond, coltan and timber,
unlawfully exploited during the occupation by Ugandan armed forces of the district
of Ituri in the relevant period?
(b) Based on the answer to the question above, what is the valuation of the damage
suffered by the Democratic Republic of the Congo for the unlawful exploitation of
natural resources, such as gold, diamond, coltan and timber, during the occupation
by Ugandan armed forces of the district of Ituri?
(c) Based on the evidence available in the case file and documents publicly available,
particularly the UN Reports mentioned in the 2005 Judgment, what is the
approximate quantity of natural resources, such as gold, diamond, coltan and timber,
plundered and exploited by Ugandan armed forces in the Democratic Republic of
the Congo, except for the district of Ituri, and what is the valuation of those
resources?
3. Property damage
(a) Based on the evidence available in the case file and documents publicly available,
particularly the UN 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?”6
It is thus within this authoritative framework that the experts were invited to give their opinions.
6 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Order of
8 September 2020, para. 16.
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8. In view of this general framework, before examining the different reports any further, the
DRC will comment on the methodology used to assess the reparation (A), and the scope of the
experts’ terms of reference (B).
A. The methodology which should generally be applied
in assessing the reparation
9. It is clear from the terms of reference recalled above that a methodology has been chosen
which is appropriate to the nature of the injury suffered in the present case (1), has generally been
applied by the experts in making their observations, and is wholly consistent with the DRC’s
approach to the evidence included in the case file (2).
1. A methodology appropriate to the nature of the injury
10. The experts’ reports contain numerous assessments which confirm that the methodology
applied in establishing the facts has to be appropriate to the nature of the damage caused in the context
of war. In keeping with the logic of the terms of reference provided to them by the Court, the experts
give general estimates and rely on United Nations reports and other official documents. They also
employ techniques which consist in establishing rates or proportions, so as to encompass the situation
as a whole.
2. The experts’ consideration of the evidence filed by the DRC to establish injury
11. In general, the experts are clearly of the view that the evidence filed to establish injury,
and in particular that produced to support the DRC’s claim, merits consideration. The experts present
their estimates as “comparable to the ones presented by the Congo Memorial”7, or even as
“agree[ing]” with them8, and consider that the figures included in the claim are “reasonable”9, “not
unreasonable”10 or “minor”11. Moreover, in their report they adopt some specific features of the
approach taken by the DRC. Examples of this include grouping the victims of Uganda’s acts into
two categories (direct and indirect)12, and the arguments for taking account of excess mortality which
were originally set out in the DRC’s Memorial13.
12. Looking beyond the general approach, however, some criticisms and questions arise with
regard to certain specific aspects of the experts’ report. Before setting out these criticisms and
questions, it is essential to state clearly the scope as well as the limits of the report. On that basis, it
will be possible to clarify its place in the present dispute.
7 Experts’ Report (ER), para. 51.
8 Ibid., para. 68.
9 Ibid., paras. 106, 109, 110.
10 Ibid., para. 138.
11 Ibid., para. 117.
12 Ibid., paras. 42 and 84 et seq.
13 MRDRC, paras. 2.62 and 7.14.
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B. Scope and limits of the experts’ report
13. Before setting out the precise scope and limits of the report in the material sense (2 to 4),
it should be noted, in general, that the sometimes particularly conservative estimate of the damage
resulting from the conflict may raise questions (1).
1. The conservative nature of certain estimates presented in the report
14. Henrik Urdal notes in his report that “there are important limitations” to the UCDP data
on which he relies14, due in particular to the likely “underreporting of armed activity that could have
qualified for inclusion in the . . . database”15 and the fact that no account is taken of events “for which
casualty estimates cannot be established”16. The UCDP website also assumes this particularly
cautious tone and states that
“[d]ue to the lack of available information in many conflict zones, it is quite likely that
there are more fatalities than given in the best estimate, but it is very unlikely that there
are fewer”17.
Quite logically, Henrik Urdal states that “[e]ven the ‘high estimate’ is considered to be a cautious
assessment as the UCDP specifically avoids including unreasonable claims in the high estimate of
fatalities”18, with the result that “[g]enerally, UCDP fatality numbers are conservative”19. His report
even notes that the UCDP “tends to be highly conservative when counting fatalities”20. On that basis,
he openly acknowledges that the stated estimates of deaths are “conservative, or cautious
estimates”21.
15. In the same vein, with regard to the exploitation of natural resources, Michael Nest
observes that he “assumed that every such incident that ever occurred within the UAI [Ugandan area
of influence] during the time period was not documented or made available in the case file
documents”22.
16. The DRC will return in greater detail to certain aspects of the experts’ report later on. At
this stage, and in general, it should be noted that this wording clearly shows that the report is far from
providing a high — let alone an extreme — estimate of the damage resulting from the conflict.
17. The limited nature of the report can thus be inferred directly from the valuations and items
covered by it. However, it is also and especially related to the aspects of the DRC’s claim that were
not covered by the report. The terms of reference provided to the experts by the Court encompass
three areas: loss of human life, unlawful exploitation of natural resources, and property damage. It is
within the limits of these terms of reference that the experts carried out their work, fixed their
14 ER, para. 25.
15 Ibid., paras. 26 et seq.
16 Ibid., para. 28.
17 https://www.pcr.uu.se/research/ucdp/methodology/.
18 ER, para. 21.
19 Ibid., para. 21.
20 ER, App. 1.3; emphasis added.
21 Ibid., para. 30; see also para. 29 (“a moderate estimate of direct deaths”).
22 Ibid., para. 205.
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valuations and produced their report. It must therefore be interpreted accordingly, as not covering
the aspects of the DRC’s claims which fall outside these terms of reference (point 2, below) or which
were not construed as falling within them (point 3). Finally, one last category concerns certain
aspects of the report that fall within the scope of the terms of reference but were not included in the
DRC’s original claim (point 4).
2. Aspects of the DRC’s claim not covered by the experts’ terms of reference
18. This category comprises various elements, some of which were discussed at length in the
DRC’s claim as set out in its Memorial. They concern several areas.
19. It should first be noted that the DRC included in its claim all injury caused by the Ugandan
aggression, be it due to the violation of the prohibition of the threat or use of force, the violation of
the norms of international humanitarian or human rights law, or the violation of the prohibition of
the unlawful exploitation of natural resources. This logically includes all injury caused to the
Congolese State, that is to say, the loss not only of civilian lives but also that of the soldiers and
other State agents who died, sometimes heroically, while attempting to fend off (or put an end to)
the aggression. As the DRC noted in its Memorial, taking into account the legally recognized
principle of full reparation, it is hard to see how this particular component of the claim could be
excluded23.
20. The experts’ report does not appear to address this particular aspect of the DRC’s claims.
As it mentions at the outset, Report 1, prepared by Henrik Urdal, exclusively concerns civilians.
However, “[d]eaths of military personnel are not included as they were not part [of] the TOR”24.
Indeed, the Court limited the scope of the expert opinion to “lives lost among the civilian population”,
as mentioned above. Report 2, drafted by Debarati Guha-Sapir, concerns “civilian deaths in excess
to normal mortality rates that can be attributed to the conflict”25. She is therefore not supposed to
include civilian (let alone military) deaths which are “intentional . . . [and] addressed in Report 1”26.
It is in any event clear from Report 3 that the scale of compensation due for damage resulting from
lives lost or the physical injuries suffered by the victims is based on calculations for “civilian
populations”27. These terms also appear, moreover, in Table B at the beginning of the experts’
report28.
21. Nor do the terms of reference provided to the experts by the Court include an assessment
of the macroeconomic injury caused to the DRC by Uganda as a result of the Ugandan army’s
activities on Congolese territory between August 1998 and June 2003. This injury was identified by
the DRC — which devoted a full chapter of its Memorial to it29 — as a component of the reparations
owed to it for loss of revenue (lucrum cessans), in accordance with the above-mentioned principle
of full reparation.
23 MRDRC, in particular pp. 54 et seq. and 70-71.
24 ER, para. 9.1.
25 Ibid., para. 9.2; emphasis added.
26 Ibid., para. 9.2; emphasis added.
27 Ibid., para. 84.
28 Ibid., para. 6.
29 MRDRC, Chap. 6.
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22. The same conclusion must also be reached in respect of other aspects of the DRC’s claims,
including in particular:
⎯ the claim of compensatory interest at a rate of 6 per cent on any amounts that the Court may
order Uganda to pay, calculated as from September 2016, the date on which the DRC’s Memorial
was filed; payment of this interest is all the more warranted given that Uganda has since refused
to engage in any serious negotiations or, ultimately, to pay any compensation, even partially;
⎯ the claim of US$125 million as satisfaction for all non-material injury resulting from the
violations of international law found by the Court in its Judgment of 19 December 2005;
⎯ the request that the Court order Uganda, as satisfaction, to conduct criminal prosecutions of the
members of its armed forces who were involved in the violations of international humanitarian
law or international human rights law committed in Congolese territory;
⎯ the claim for all the costs incurred by the DRC in the context of the present case.
23. In keeping with the terms of reference provided by the Court, which did not prejudge these
aspects of the DRC’s claim, the experts’ report addresses none of these various points and they thus
remain entirely open to judicial debate. This was formally recalled in paragraph 9 of the Order of
8 September 2020, according to which the Court decided to arrange for an expert opinion with respect
to certain heads of damage “while continuing to examine the full range of heads of damage claimed
by the Applicant and the defences invoked by the Respondent”.
3. Aspects of the DRC’s claim which the experts did not include in their report: no expert
opinion on fauna
24. Although the Court broadly defined the scope of the expert opinion as including an
assessment of the “loss of natural resources”, the experts’ report remains totally silent on the question
of damage to fauna. The report neither excludes it as a matter of principle, nor includes it. In fact,
the report never mentions or refers to it but appears simply to ignore it. There being no justification
for this exclusion in the report, the DRC can only make assumptions and conjectures on this point.
A discussion of this question is set out below, in the part of these observations which concerns natural
resources30. Although it is not mentioned in the experts’ report, damage to fauna forms part of the
injury caused to the DRC’s natural resources. It therefore must be taken into account in accordance
with the principle of full reparation. The DRC thus maintains in full this aspect of its claim.
4. Aspects of the report which enable the DRC’s claim to be updated
25. As the DRC will discuss in detail later on, Michael Nest took account of the damage
resulting from the unlawful exploitation of tin, tungsten and coffee in his report on natural resources.
None of these resources were directly addressed in the DRC’s Memorial, which referred to gold,
diamonds, coltan and timber, as well as fauna31.
26. However, this in no way precludes damage resulting from the unlawful exploitation of tin,
tungsten and coffee from being included in the claim for reparation that the DRC will present to the
Court in its final submissions. In its Memorial, at the end of the chapter on natural resources, the
DRC stated that its claim was made “at this stage of the proceedings and without prejudice to
30 Paras. 44-49, below.
31 MRDRC, para. 5.190.
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supplementary claims”32. The submissions in the DRC’s Memorial were, by the same logic, expressly
made “subject to any changes made to its claims in the course of the proceedings”33.
27. In these circumstances, the DRC now expressly includes in its claim for reparation the
damage resulting from the unlawful exploitation of tin, tungsten and coffee, and adopts the amounts
specified in this regard in Mr. Nest’s report. More generally, this report must be considered as
supplementing the DRC’s claim as it is set out in the submissions of its Memorial.
28. That said, a number of more specific comments and questions arise on reading the report.
They concern personal injury, the unlawful exploitation of natural resources and property damage,
and will be set out in that order.
II. OBSERVATIONS ON THE PARTS OF THE REPORT CONCERNING PERSONAL INJURY
29. The part of the experts’ terms of reference relating to loss of human life reads as follows:
“(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 global estimate of the lives lost among the civilian population (broken down by
manner of death) due to the armed conflict on the territory of the Democratic
Republic of the Congo in the relevant period?
(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?”
30. The aim of the following observations is to present the initial thoughts and questions of
the DRC on reading the reports relating to loss of human life and personal injury. They are without
prejudice to any further observations the DRC reserves the right to make during the oral phase of the
proceedings.
31. In general, the DRC notes with satisfaction that the experts have taken the measure of the
severe impact of conflict-related excess deaths, in accordance with their terms of reference which
consisted in establishing a “global estimate of the lives lost among the civilian population”34. The
applicant Party will take due account of this assessment and will make any comments it might
consider necessary during the hearings and in its final submissions. It further notes that the experts
have endorsed the methodology used in its Memorial for the determination of categories of victims
and compensable injuries, as well as the choice of applicable standards of proof35. In light of these
general remarks, the DRC wishes to make the following more detailed observations.
32. As regards the question of “Loss of Life: Conflict Deaths” (Report 1), the DRC is surprised
at the extremely low numbers given by the expert: 11,227 direct civilian victims and 3,436 indirect
32 MRDRC para. 5.190.
33 Ibid., para. 7.89.
34 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Order of
8 September 2020, p. 6; emphasis added.
35 ER, paras. 42, 84 et seq., 96 et seq., 120, 129 and 136.
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civilian victims36, whereas according to the DRC’s objective estimates there were 40,000
and 140,000 victims respectively37. As has already been pointed out, the expert himself
acknowledges that “there are important limitations”38 in the data from the single source on which he
relied, namely the studies conducted by the UCDP independent observatory of the University of
Uppsala, in particular because of the likely “underreporting of armed activity that could have
qualified for inclusion in the . . . event database”39 and the fact that events “for which casualty
estimates cannot be established”40 are not taken into account. The DRC concludes that the expert
chose to give a lower estimate of the number of direct and indirect victims, even though there is no
rational basis for this, in particular in other “documents publicly available” mentioned in the terms
of reference provided by the Court41.
33. Similarly, the DRC notes the low financial assessment of US$30,000 per direct victim and
US$15,000 per indirect victim42. By way of comparison, in the Diallo case, the Congolese State was
directed by the Court to pay compensation of US$95,000 (of which US$85,000 was for non-material
injury) in respect of a person in its territory who was wrongfully arrested, detained and expelled43. It
would be rather paradoxical for the compensation recommended by the expert for a direct death to
be three times lower.
34. Finally, regarding the valuation and amounts recommended in compensation for human
lives lost (Report 3), the DRC notes that the expert has made full allowance for the necessary
adaptation of standards of proof in a context of mass atrocities. It is hard to understand why he
requires specific evidence for the valuation of deaths, while he admits in the case of rape and child
soldiers that “[g]iven the . . . circumstances . . ., it is unsurprising and reasonable that no
documentary evidence is provided on an individual basis”44.
35. The individual amount of US$30,000 for human lives lost proposed by the expert45
therefore seems to be insufficiently substantiated. It is based, without any particular justification,
solely on the practice of the United Nations Compensation Commission (UNCC) for Iraq, whereas
the ICJ takes into account the practice of a large number of international courts, tribunals and
bodies46, in particular in cases of human rights violations. Why would the valuations of the UNCC
alone be reasonable, as the expert seems to think47? Given the particular features of the UNCC’s
practice, one might nevertheless think that it would have been more appropriate to refer to the
36 ER, para. 14.
37 MRDRC, paras. 7.13 and 7.15.
38 ER, para. 25.
39 Ibid., paras. 26 et seq.
40 Ibid., para. 28.
41 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Order of
8 September 2020, op. cit.
42 ER, para. 40.
43 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment,
I.C.J. Reports 2012 (I), p. 337, para. 56.
44 ER, para. 120; see also para. 129.
45 Ibid, paras. 93 et seq. and para. 105.
46 See in this regard Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo),
Compensation, Judgment, I.C.J. Reports 2012 (I), p. 352, para. 13.
47 ER, paras. 137-138.
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activities of regional African judicial and quasi-judicial bodies in assessing the reparation for the
various material and non-material injuries caused in the Congolese situation.
36. Similarly, the flat-rate amount of US$5,000 recommended for both simple and aggravated
rape48 takes no account of the real differences in circumstances between the two categories of victim,
and the extremely low amount proposed by the expert would be hard to accept for women expecting
reparation for the suffering they have endured.
37. The expert does not contest the reference made in the DRC’s Memorial to judgments of
national courts regarding the assessment of compensation49. Furthermore, in setting out this part of
the experts’ terms of reference, the Court itself mentioned the need to take account of relevant
national practice50. Yet the expert does not analyse “the prevailing practice” before Congolese courts
in order to determine “the scale of compensation due for the loss of human life”.
38. General guidelines can be identified in Congolese judicial practice, available from public
sources51, which highlight the clear inadequacy of the amounts proposed by the expert. In a large
number of decisions on killings as a war crime or crime against humanity, the lowest amount awarded
to a civil-party applicant is around the equivalent of US$10,000, while in decisions on rape, the
lowest amount awarded per civil-party applicant is around US$5,00052. The mathematical average of
compensation awarded by all decisions rendered would however be much higher, since there are
cases in which the individual found guilty of murder was ordered to pay the civil-party applicant the
sum of US$60,00053 and the individual accused of rape was ordered to pay the sum of US$30,00054.
39. In this connection, it should be noted that, unlike the UNCC’s practice taken into account
by the expert and which correlates compensation with the act constituting the offence, the amount of
compensation awarded by Congolese courts is not fixed in relation to that act — for example a
murder, assassination or rape ⎯ but is determined per civil-party applicant. Given that, in the DRC,
(i) families are generally large (parents having on average six children, making a total of eight people
48 ER., para. 124; to recall, the DRC sought compensation of US$12,600 for simple rape and US$23,200 for
aggravated rape (para. 119).
49 Ibid., para. 87.
50 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Order of
8 September 2020, op. cit.
51 See in particular the two Bulletins des arrêts de la Haute Cour militaire, one published in Kinshasa (by Média
Saint-Paul) in 2013 and the other in Paris (by L’Harmattan) in 2016. See also Recueils de décisions de justice et de notes
de plaidoiries en matière de crimes internationaux, published by Avocats sans frontières, in 2010 and 2013 (and available
online).
52 Cour militaire de l’Equateur, Auditeur militaire supérieur et parties civiles v. Bokila et consorts (Songo Mboyo),
judgment No. RPA 014/06, 7 June 2006, published in the Bulletin des arrêts de la Haute Cour militaire, Paris,
L’Harmattan, 2016, p. 305; Cour militaire du Sud-Kivu, Auditeur militaire v. Kabala, judgment No. RPA 230, 20 May
2013, published in the same Bulletin, p. 150; Cour militaire du Sud-Kivu, Auditeur militaire supérieur et parties civiles v.
Batumike et consorts (Kavumu case), judgment No. RP 0105/2017 of 13 Dec. 2017. This judgment was upheld by the
Haute Cour militaire in its judgment No. 139/2018 of 26 July 2018, available online [https://trialinternational.org/wpcontent/
uploads/2018/07/Arret-Kavumu-HCM.pdf] (visited on 28 Jan. 2021).
53 Cour militaire du Katanga, Auditeur militaire supérieur et parties civiles v. Kyungu Mutanga Gédéon et consorts,
judgment No. RPA 025/09 of 16 Dec. 2010, published in the Bulletin des arrêts de la Haute Cour militaire, 3rd edition,
Kinshasa, Média Saint-Paul, 2013, p. 376.
54 Haute Cour militaire, Auditeur général et parties civiles v. Jérôme Kakwavu, judgment No. 004/2010 of 7 Nov.
2014, published in the Bulletin des arrêts de la Haute Cour militaire, Paris, L’Harmattan, 2016, p. 98; see also Haute
Cour militaire, Auditeur général v. Kibibi et consorts, judgment No. 047/2011, 10 July 2020, p. 61 (unpublished), judgment
in which the civil-party applicants in respect of rape were awarded US$10,000.
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per nuclear family) and (ii) in the context of armed conflicts or deliberate attacks against civilians
criminal acts such as murder and rape are perpetrated in the presence of family members, several
members of the same family are entitled to apply individually for civil-party status in respect of a
single criminal act. When this occurs, a Congolese judge has no hesitation in awarding compensation
to each of them. In these circumstances, the overall amount of compensation for a single act is
assessed by adding together the amounts that each of the potential civil parties could have been
awarded. In this regard, the judgment rendered in the Daniel Mukalay et consorts case (commonly
referred to as the Chebeya case) provides a particularly clear example of the methodology used.
Following the assassination of Mr. Chebeya Bahizire, the Military Court of Kinshasa awarded
US$50,000 to his widow, US$35,000 to each of the deceased’s six children, US$20,000 to his six
brothers and sisters, US$10,000 to the NGO La voix des sans voix pour les droits de l’homme, of
which the victim was the executive director, and US$10,000 to RENADHOC, a national network of
human rights NGOs in which the victim participated55. A number of decisions confirm this
methodology used by the Congolese courts:
⎯ Tribunal militaire de garnison de Mbandaka, Auditeur militaire et parties civiles v. Botuli Ikofo
et consorts (Waka Lifumba case), judgment No. RP 134/2007, 18 February 200756;
⎯ Cour militaire de l’Equateur, Auditeur militaire supérieur et parties civiles v. Bokila et consorts
(Songo Mboyo case), judgment No. RPA 014/06, 7 June 200657;
⎯ Tribunal militaire de Kisangani, Auditeur militaire et parties civiles v. Basele Lutula et consorts
(Colonel Thom’s et consorts case), judgment No. RP 167/08, 3 June 200958;
⎯ Haute Cour militaire, Auditeur général et partie civile v. Ahono Abena, judgment
No. RPA 033/09, 29 October 200959;
⎯ Cour militaire du Sud-Kivu, Auditeur militaire v. Kabala, judgment No. RPA 230, 20 May
201360;
⎯ Cour militaire du Katanga, Auditeur militaire supérieur et partie civile v. Ramazani Salumu,
judgment No. RPA 236/2012, 18 June 201361;
⎯ Cour militaire opérationnelle du Nord Kivu, Auditeur militaire et parties civiles v.Nzale
Nkumu et consorts, judgment No. 003/2013 of 5 May 201462;
55 Cour militaire de Kinshasa (Gombe), Auditeur supérieur et parties civiles v. Daniel Mukalay et consorts,
judgment No. RP 066/2011, 23 June 2011, p. 68. The text of the judgment is available online:
[https://www.fidh.org/IMG/pdf/rdc_verdict_chebeyabazana_230611.pdf].
56 Judgment published in Recueil ASF 2013, pp. 32-54, available online [https://issuu.com/avocatssansfrontieres
/docs/asf_rdc_jurisprudencecrimesinternat].
57 Judgment published in the Bulletin des arrêts de la Haute Cour militaire, Paris, L’Harmattan, 2016, p. 305. The
judges awarded US$5,000 per civil-party applicant for simple rape, US$10,000 for rape having caused death.
58 Judgment published in Recueil ASF 2010, pp. 192-216, available online: [https://issuu.com/
avocatssansfrontieres/docs/asf_rdc_crimesinternationaux_part4/10].
59 Judgment published in the Bulletin des arrêts de la Haute Cour militaire, 3rd ed., Kinshasa, Média Saint-Paul,
2013, p. 48. The judges awarded US$200,000 for a killing.
60 Judgment published in the Bulletin des arrêts de la Haute Cour militaire, Paris, L’Harmattan, 2016,
pp. 101-154 (see in particular p. 150). The judges awarded US$5,000 per civil-party applicant for rape.
61 Judgment published in the Bulletin des arrêts de la Haute Cour militaire, Paris, L’Harmattan, 2016, p. 335. The
judges awarded US$10,000 per civil-party applicant for rape.
62 Judgment published in the Bulletin des arrêts de la Haute Cour militaire, Paris, L’Harmattan, 2016, p. 271. The
judges awarded US$15,000 per civil-party applicant for rape.
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⎯ Cour militaire du Sud-Kivu, Auditeur militaire supérieur et parties civiles v. Batumike et
consorts (Kavumu case), judgment No. RP 0105/2017, 13 December 201763.
40. Decisions pertaining to acts committed in the “relevant period”64 defined by the Court
reflect the large amounts awarded per civil-party applicant:
⎯ Tribunal militaire de garnison de Bunia, Auditeur militaire supérieur et parties civiles v. Kakado
(Kakado case), judgment Nos. 071/09, 009/010 and 074/010, 5 August 200765: US$750,000
awarded per civil-party applicant for rape and sexual slavery; US$750,000 awarded for rape
and inhumane treatment; US$50,000 awarded for murder;
⎯ Cour militaire de Kisangani, Auditeur supérieur et parties civiles v. Kahwa (Kahwa case),
judgment No. 023/2006, 13 August 2014: US$10,000 to US$20,000 awarded per civil-party
applicant for murder;
⎯ Haute Cour militaire, Auditeur militaire supérieur et parties civiles v. Kakwavu (Kakwavu case),
judgment No. 004/2010, 7 November 201466: US$30,000 awarded per civil-party applicant for
rape; US$20,000 for murder; US$5,000 for torture.
A review of the practice of Congolese courts thus shows that the amounts of compensation are much
higher than those proposed by the expert. In this respect, the amounts in the DRC’s Memorial are in
the lowest range of compensation awarded by Congolese courts for injury of the same kind and are
therefore reasonable.
III. OBSERVATIONS ON THE REPORT CONCERNING NATURAL RESOURCES
41. For “loss of natural resources”, the terms of reference established by the Court’s Order of
8 September 202067, and reproduced in paragraph 2.2 of the experts’ report, are as follows:
“II. Loss of natural resources
(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 quantity of natural resources, such as gold, diamond, coltan and
timber, unlawfully exploited during the occupation by Ugandan armed forces of the
district of Ituri in the relevant period?
63 This judgment was upheld by the Haute Cour militaire in its judgment No. 39/2018 of 26 July 2018, available
online [https://trialinternational.org/wp-content/uploads/2018/07/Arret-Kavumu-…] (visited on 28 Jan. 2021). The
judges awarded US$15,000 per civil-party applicant for murder and US$5,000 for rape.
64 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Order of
8 September 2020, para. 16.
65 Decision cited in the Response of the Democratic Republic of the Congo to questions put by the Court and
published in the Recueil de décisions de justice et de notes de plaidoiries en matière de crimes internationaux, Avocats
sans frontières, 2010, p. 225, Recueil de jurisprudence congolaise en matière de crimes internationaux, Avocats sans
frontières, 2013, pp. 135-174. The decision is also available online: [https://asf.be/wp-content/uploads/2013/12/
ASF_RDC_JurisprudenceCrimesInternat_201312.pdf].
66 Decision cited in the Response of the Democratic Republic of the Congo to questions put by the Court and
published in the Bulletin des arrêts de la Haute Cour militaire, la lutte contre les violences sexuelles, Paris, L’Harmattan,
2016, pp. 17-99.
67 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Order of
8 September 2020, para. 16 (2) (II).
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(b) Based on the answer to the question above, what is the valuation of the damage
suffered by the Democratic Republic of the Congo for the unlawful exploitation of
natural resources, such as gold, diamond, coltan and timber, during the occupation
by Ugandan armed forces of the district of Ituri?
(c) 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 quantity of natural resources, such as gold, diamond, coltan and
timber, plundered and exploited by Ugandan armed forces in the Democratic
Republic of the Congo, except for the district of Ituri, and what is the valuation of
those resources?”
42. Where necessary, these terms of reference must be interpreted in light of the Court’s
Judgment of 19 December 200568. With this in mind, the DRC will comment on the scope of
Michael Nest’s report (A). Several observations can also be made about the valuation methods
used (B) and values given (C) in the report.
A. Observations on the scope of the report
43. The observations on the scope of Michael Nest’s report relate, first, to the natural resources
concerned, and in particular the non-inclusion of fauna and deforestation (1), and second, to the acts
engaging Uganda’s responsibility which must be taken into account in the expert opinion, and the
expert’s failure to consider wrongful exploitation by civilians in Ituri (2).
1. The non-inclusion of fauna and deforestation
44. As regards the natural resources concerned, the DRC observes that the three paragraphs of
the terms of reference relate to “natural resources, such as gold, diamond, coltan and timber”. The
phrase “such as” is clear: this list is indicative, and not restrictive.
45. In its Memorial, the DRC seeks reparation for “[t]he prejudice caused to the DRC’s natural
resources by Uganda” (chapter 5), and divides this head of damage into three subcategories:
“Looting, plundering and illegal exploitation of minerals” (section 1), “Prejudice caused to
Congolese fauna” (section 2) and “Looting, plundering and wrongful exploitation of Congolese
flora” (section 3).
46. The DRC thus devotes a significant portion of the arguments put forward in its Memorial
to its reparation claim for damage to fauna as part of the injury more generally caused to its natural
resources by Uganda69. Indeed, as this portion of the Memorial shows, the attack on and occupation
of a part of Congolese territory had disastrous consequences for wildlife. In particular, the DRC
demonstrates how a number of national parks covering several thousand square kilometres were
devastated and, in some cases, plundered, notably in connection with the illicit — and lucrative —
ivory trade. In this respect alone, and on the basis of a rigorous and documented analysis, the DRC
68 In its Order of 8 September 2020, the Court decided that an expert opinion would be obtained “to examine the
full range of claims and defences to the heads of damage claimed by the Applicant”, “[f]or the purposes of determining the
reparation owed to the Democratic Republic of the Congo by Uganda for the injury caused as a result of the breach by
Uganda of its international obligations, as determined by the Court in its 2005 Judgment” (ibid., para. 16 (2)).
69 MRDRC, chap. 5, sec. 2, paras. 5.93-5.172.
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makes a claim of almost US$2.7 billion (US$2,692,980,468 to be precise)70. In its
Counter-Memorial, Uganda refuses to provide any compensation for this ecological and economic
damage71.
47. Yet the section of the report on the “[s]election of resources for consideration”72 contains
no explanation as to why the expert has not included wildlife or forest resources (with the exception
of timber) in his analysis. On the other hand, the expert does justify the inclusion in his analysis of
three additional resources: tin (cassiterite), which “is often found in the same ore body as
niobium-tantalite (coltan)”73; tungsten (wolframite), which with tin and tantalite forms the “3Ts”74;
and finally coffee, which is included in the reports of the United Nations Panel of Experts on the
Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of
the Congo and in those of the United Nations Mission in the Democratic Republic of the Congo. In
view of these explanations, the DRC supports the inclusion of these three items on the list of
resources whose exploitation is compensable. Nonetheless, it is surprised that the same reasoning did
not lead the expert to consider damage suffered by wildlife, which, according to the United Nations
Panel of Experts, is also of “intense interest”75 and has a “connection”76 to the conflict in the DRC.
48. Moreover, according to the terms of reference, the experts are to base their report “on the
evidence available in the case file and documents publicly available, particularly the United Nations
Reports mentioned in the 2005 Judgment”. These reports contain numerous references to natural
resources other than those explicitly mentioned in the terms of reference, and address wildlife and
forests in particular. Thus, in its very first report, the United Nations Panel of Experts explained that
it had taken three categories of product into consideration: mineral resources; “agriculture, forests
and wildlife, including timber, coffee and ivory”77; and financial products. In its final report, it again
recalled that its fact-finding had focused on “diamonds, gold, coltan, copper, cobalt, timber, [and]
wildlife reserves”78.
49. In light of the foregoing, there can be no doubt that the experts’ report covers only part of
the injury suffered by the DRC on account of the exploitation of natural resources. In this regard, the
DRC maintains all the claims that it made and substantiated in its written pleadings.
70 MRDRC, chap. 7.
71 Counter-Memorial on Reparation of Uganda (CMRU), pp. 384 et seq.
72 ER, Report 4, “Exploitation of Natural Resources”, sec. 1.1.
73 Ibid., para. 200.2. The expert states that there is “no good reason to include coltan in this report but exclude tin”
(ibid.; emphasis added).
74 Ibid., para. 200.3.
75 Ibid.
76 Ibid.
77 Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of
the Democratic Republic of the Congo, S/2001/357, 12 Apr. 2001, para. 13 (MRDRC, Ann. 1.7).
78 Final report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth
of the Democratic Republic of the Congo, S/2002/1146, 16 Oct. 2002, para. 4 (MRDRC, Ann. 1.10).
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2. The acts attributable to Uganda: the expert’s failure to take account of the unlawful
exploitation of natural resources by civilians in Ituri
50. Turning to the acts which engage Uganda’s responsibility, it should be recalled that, in its
Judgment of 19 December 2005, the Court concluded that
“Uganda is internationally responsible for acts of looting, plundering and exploitation
of the DRC’s natural resources committed by members of the UPDF in the territory of
the DRC, for violating its obligation of vigilance in regard to these acts and for failing
to comply with its obligations under Article 43 of the Hague Regulations of 1907 as an
occupying Power in Ituri in respect of all acts of looting, plundering and exploitation of
natural resources in the occupied territory”79.
Similarly, in paragraph 4 of the Judgment’s operative clause, the Court found that
“the Republic of Uganda, by acts of looting, plundering and exploitation of Congolese
natural resources committed by members of the Ugandan armed forces in the territory
of the Democratic Republic of the Congo and by its failure to comply with its
obligations as an occupying Power in Ituri district to prevent acts of looting, plundering
and exploitation of Congolese natural resources, violated obligations owed to the
Democratic Republic of the Congo under international law”.
51. It is in the light of this finding that the experts’ terms of reference must be understood.
Paragraphs (a) and (b) of those terms relate to the unlawful exploitation of Congolese natural
resources in the district of Ituri during its occupation by Uganda. They therefore cover not only the
plundering and exploitation of natural resources by Ugandan agents and other allied armed forces of
Uganda, but also unlawful exploitation by civilians, brought about by Uganda’s violation of its
international obligations as an occupying Power in Ituri.
52. Paragraph (c) of the terms of reference relates to Uganda’s actions outside Ituri district. It
focuses on Congolese natural resources “plundered and exploited by Ugandan armed forces in the
Democratic Republic of the Congo, except for the district of Ituri”. Indeed, since Uganda was not
the occupying Power outside Ituri, while it is responsible for any acts of plundering and exploitation
attributable to it, it is not responsible for lack of vigilance with regard to unlawful exploitation by
third parties outside Ituri.
53. Lastly, the DRC observes that paragraph (b) instructs the experts to assess the “damage”
suffered by the DRC, while paragraph (c) asks them “what is the valuation of” the resources
plundered and exploited by Uganda. The injury suffered by a State as a result of the spoliation of its
natural resources may exceed the value of those resources: for example, damage can also include the
loss of tax and customs revenues which would have been collected had the resources been lawfully
exploited. The DRC sees no reason to exclude such damage from the experts’ report under
paragraph (c) when it is included in paragraph (b). It is therefore of the view that this difference in
the wording of the terms of reference should not be interpreted as restricting the assessment of
damage under paragraph (c) to the sole value of the natural resources plundered or exploited by
Uganda.
79 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J.
Reports 2005, p. 253, para. 250.
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54. In light of the above, the DRC considers that the expert has based his report on a partial
assessment of the acts attributable to Uganda under the Court’s 2005 Judgment and the applicable
international law. More specifically, he has failed to take account of the unlawful exploitation of
natural wealth in Ituri by civilians, which exploitation constitutes a breach of Uganda’s international
obligations as the occupying Power. This crucial misreading of the legal framework for the expert
opinion has resulted in a failure to deliver fully on the terms of reference provided to the experts by
the Court.
55. In paragraph 193 of the report, the expert states the following:
“193. The activity of exploiting value from resources was defined as falling into two
categories:
193.1 In the [Ugandan area of influence] outside Ituri (in non-Ituri) when undertaken
by UPDF personnel only. This means any exploitation by, for example,
personnel of the Mouvement de Libération du Congo (MLC), is excluded from
this report.
193.2 Within Ituri when undertaken by any and all armed forces and any affiliated
administrative personnel, including both UPDF and Congolese.”80
The expert has thus confined his assessment to the exploitation of natural resources in Ituri by “any
and all armed forces”, both Ugandan and irregular Congolese, and has excluded exploitation by
civilians, when such exploitation was made possible by Uganda’s violation of its international
obligations as an occupying Power.
56. In so doing, the expert has failed to carry out a full assessment of the damage caused to the
DRC’s natural resources as a result of Uganda’s breach of its international obligations. In view of
that failure, there can be no doubt that the experts’ report covers only part of the injury suffered by
the DRC on account of the exploitation of natural resources. In this respect, the DRC maintains all
the claims made and substantiated in its written pleadings.
B. Observations on the valuation methods used in the report
57. Turning to the methods used to assess unlawfully exploited natural resources, the DRC, in
line with the United Nations Panel of Experts, gives a central place in its Memorial to Ugandan
exports of natural resources that cannot be explained by local production. The DRC is of the view
that, until proven otherwise by Uganda, such exports reflect plundered quantities and values.
Although the report takes account of those exports and provides useful clarifications in this regard,
the expert takes a substantially different approach. He calculates the resources stolen by Uganda and
other armed forces by applying a “proxy tax” to the total resources exploited in the Ugandan area of
influence (UAI) during the relevant period (1), and takes a different approach to the DRC in
accounting for Ugandan exports that cannot be explained by national production (2).
80 Emphasis added.
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1. The estimation of stolen resources based on a “proxy tax”
58. The expert’s estimation of the injury suffered by the DRC on account of the unlawful
exploitation of its natural resources81 is based on three elements: (i) theft; (ii) fees and licences; and
(iii) taxes on sales, exports and other taxable items.
59. The DRC has questions about the scope of these various elements and, more specifically,
about the relationship between the concept of “theft”, as used by the expert, and those of “plunder”,
“exploitation” and “unlawful exploitation” in the terms of reference. In this regard, it is the DRC’s
understanding that the concept of “theft” does not cover unlawful exploitation by civilians caused by
Uganda’s breach of its international obligations, since the expert has expressly confined himself to
exploitation by military personnel82. If this is the case, the expert opinion does not address all the
claims made by the DRC. It appears particularly important to understand the exact scope applied to
the concept of “theft” by the expert, as compared with those used by the Court in its 2005 Judgment
and in the experts’ terms of reference.
60. As regards “theft”, the expert observes that:
“314. It is necessary to make an estimate for theft notwithstanding inconsistent
and incomplete information about it or the high likelihood that theft extended beyond
the examples mentioned above. A proxy tax rate for theft is estimated in Table 6 (data
are the same as those in Table 5)”.
Tables 4.5 and 4.6 in turn show various percentages representing the proxy tax rate. These vary
between 0 and 5 per cent depending on the resources concerned and whether or not they were
exploited in Ituri. For gold, the rate is 5 per cent in Ituri and 2 per cent outside Ituri. The same
observation and the same figures appear in paragraph 309.
61. The DRC has doubts about the appropriateness of using a “proxy tax rate” to calculate the
damage in question. More specifically, it wonders why the expert has used this proxy tax rate to
assess the resources concerned, rather than basing his calculations on Ugandan exports that cannot
be explained by national production, as the DRC did in its Memorial, in line with the United Nations
Panel of Experts.
2. The way in which Ugandan exports are taken into account
62. The expert had recourse, among other things, to the export and import data of various
countries, including Uganda, for the natural resources concerned. In particular, he compared
Uganda’s exports with its far inferior, almost non-existent, national production. The expert used that
information for his “[e]stimat[ation of] resource quantities in [the] Ugandan Area of Influence”
(heading 3.2), which appears to make reference to “resources produced in [the] UAI”83 (of which the
expert considers no more than 5 per cent to be “stolen”). However, the expert does not appear to use
81 Under the heading “Estimating the Exploitation of Value”, the expert states that Table 4 “shows the total
estimated value extracted by [military] personnel” (para. 305) and that the estimates in Table 4.4 “were calculated using
assumptions about the methods of exploiting value. This report categorises the extraction of value from resources into three
different methods: 306.1 Theft[;] 306.2 Fees and licences, including permission to extract, trade or export a resource[;]
306.3 Tax(es) on the value of sales or exports” (para. 306). It is understood, therefore, that the “methods of exploiting
value” refer to the various methods by which Uganda unlawfully deprived the DRC of natural resources or their associated
taxes.
82 See para. 55 above.
83 ER, para. 221 and Table 4.1.
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the difference between Uganda’s exports and its national production as reflecting, until proven
otherwise, the Congolese natural resources unlawfully exploited by Uganda. Thus, the expert
observes in particular that:
“222. . . export and/or import data for countries trading in the DRC resources
were used to estimate probable production within the UAI. For example, there are
ComTrade data . . . Such data were used as a ‘proxy’ for DRC production.
223. Given what is known about the location of each resource (derived from a
mix of case file and other documents), an estimate was then made to understand what
percentage of these imported resources probably came from UAI.”
In paragraphs 229 to 230, the expert compares Uganda’s national production and Ugandan exports
“[f]or other resources”, which, from paragraph 228, seems to mean resources other than gold and
timber. In paragraphs 230 and 223, this information (for certain resources only, not for gold) is
cross-referenced again, with any Ugandan imports from other neighbouring countries, such as
Burundi, and with an independent estimation of Uganda’s formal production.
63. The DRC is curious to know why the expert took this information into account in order to
assess the quantity of resources exploited in the UAI and subsequently conclude that only a very
small portion of that amount was “stolen”. This approach is at odds with that of the United Nations
Panel of Experts, which was followed in the DRC’s Memorial and according to which all resources
exported by Uganda that cannot be explained by local production reflect, until proven otherwise, the
quantity of Congolese resources unlawfully exploited as a result of Uganda’s violations of its
international obligations.
C. The values given in the report
64. As regards the values given in the report, the DRC has questions about the fixing of the
price of resources (1) and the assessment of the relevant quantities (2).
1. The fixing of the price of resources
65. In respect of the method used by the expert to determine the price of resources to serve as
the basis for calculating damage, the DRC’s reservations are twofold. They concern, first, the
significant discounting of prices (by 35 per cent) as compared with the market rate and, second, the
relevant period (1998-2003).
66. The expert sets out his method for determining prices in the introduction to the section of
the report entitled “Resources Prices”:
“271. Estimating the value of resources before exploitation by personnel involved
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’.
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271.3 Adjusting adopted prices into 2020 USD by ‘inflating’ them using a standard
rate.” (Emphasis added.)
67. According to the expert, the purpose of discounting prices is to reflect “the price estimated
to be relevant” within the UAI84. It is clear from Table 4.285 that the expert has applied a discount of
35 per cent as compared to the base price for all natural resources without distinction and for all years
from 1998 to 2003. The DRC does not understand on what basis it was possible to systematically
apply such a significant reduction without any apparent regard for the specific value of each resource.
68. Moreover, the DRC would note that, if the price considered relevant in the UAI is deemed
to be lower than the base price, this is the consequence of Uganda’s unlawful armed activities in
Congolese territory. From a legal perspective, this reduction cannot be applied in respect of the DRC.
The relevant price is that which would have been applied had Uganda not violated its international
obligations.
69. Next, the DRC also has questions about the relevant period used and the calculation of an
average price for that period (or those periods).
70. The expert states that his aim is to determine the base prices (and consequently the
discounted prices) for each year of the conflict individually, from 1998 to 2003, and to smooth out
any temporary price hikes. This is also clear from Table 4.2 and is explained earlier in paragraph 272,
in which the expert states:
“For example, gold in 2003 was about 30% more expensive than in 1999, and coltan
had peak prices from November 2000 to February 2001 that were ten times prices
in 1998. Thus, rather than take an average price for the entire 58 month period, an
average annual price for each year was adopted to obtain a more accurate figure (a
monthly price would be even more accurate, but these are impossible to ascertain for
the full 1998-2003 from ComTrade data).”
71. However, in the DRC’s view, this approach is legally problematic. It does not take account
of the market conditions in the UAI, caused by Uganda’s breach of international law. As the DRC
observes in paragraph 5.56 of its Memorial, throughout the period in question (1998 to 2003), the
price of gold was historically low. On this basis the DRC asserts that
“[i]n the context of the spoliation economy that the DRC suffered, Congolese gold
resources were obviously exploited and sold as a matter of urgency, with no regard for
market conditions. Had they been exploited and sold legally, on the other hand,
operations could have been delayed until the market had recovered. Consequently, one
should not look solely at the prices that applied during the war — that is to say,
between 1998 and mid 2003.”86
84 ER, para. 274.
85 Ibid., para. 274.
86 MRDRC, para. 5.57.
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2. The assessment of the quantities of gold and timber
72. Independently of the questions about methodology raised above, the DRC also has
questions about some of the quantities of natural resources taken into account by the expert, which
differ from those given in its Memorial.
73. The quantities of gold exported by Uganda between 1998 and 2003 shown in line 4 of the
expert’s Table A4.5.1.387 differ from those given in the DRC’s Memorial88. The DRC wonders how
these apparent disparities can be explained. It also wonders why the expert did not use ComTrade
data, which was used for other resources, or the statistics produced by the Ugandan Government
itself, to which the DRC has itself referred in its Memorial89.
74. As regards timber, in paragraph 245 of the report, the expert estimates that informal sawn
wood exported from the DRC to Uganda, Kenya and Rwanda totalled around 70,000,000 kg
(70 million kg or 70,000 tonnes) annually. In paragraph 246, the expert estimates that 60 per cent of
those 70,000,000 kg per year passed through Uganda. Twenty per cent, i.e. 8,400,000 kg per year,
came from the UAI90. However, the expert does not explain in this paragraph how he came to estimate
informal production of timber in the UAI at 20 per cent of the total for the DRC.
IV. OBSERVATIONS ON THE REPORT CONCERNING PROPERTY DAMAGE
75. For property damage, the terms of reference given to the experts by the Court are as
follows:
“(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?”
The observations that follow will focus on the wording and scope of the experts’ terms of
reference (A), the categories or types of property (B), and the valuation methods and evidence relied
on in the experts’ report as compared to those used by the DRC (C).
A. The wording and scope of the terms of reference
76. In its 2005 Judgment, the Court found that, as the “occupying Power”, Uganda was
responsible for the acts of its armed forces (UPDF), but also for lack of vigilance in preventing
violations of human rights and international humanitarian law by other actors present in the occupied
87 ER, p. 124.
88 MRDRC, paras. 5.41-5.45 and 5.55.
89 Ibid., paras. 5.41-5.43.
90 There is a discrepancy in this respect between the English and French versions of the report. According to the
French version, the expert has “retranché” (deducted) 20 per cent.
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territory, including rebel groups acting on their own account91. In keeping with this reasoning, the
expert did not confine himself to damage resulting from acts of Ugandan armed forces in Ituri alone.
77. In terms of geography, alongside Ituri and the city of Kisangani, the expert also assessed
property damage in three other cities, specifically Beni, Butembo and Gemena, thereby covering the
two areas identified by the DRC in its Memorial, namely Ituri and the area beyond Ituri, including
“Kisangani and the rest of the territory invaded by Uganda”92.
B. Categories or types of property damaged or destroyed
78. The DRC notes that the expert has included in his report most categories of property
damaged or destroyed during the conflict, namely dwellings, infrastructure and looted property,
including that of the National Electricity Company (SNEL) and of Congolese armed forces.
However, he has not included places of worship. The DRC does not understand the reasons for this
omission. In its Memorial, the DRC clearly identified the places of worship destroyed93, and those
properties should have been taken into account by the expert. Indeed, not only do they hold material
value, but they are of cultural and religious value too: their destruction resulted in emotional trauma
and a moral void, which is why the damage to them should be compensated in full.
C. Valuation methods and evidence
79. As a preliminary, the DRC would like to clarify one point relating to the assessment of the
number of dwellings destroyed during the conflict in the relevant areas of Congolese territory. In this
regard, it would note above all that in paragraph 148 of the report, the percentages of dwellings
destroyed given by the expert would seem to be the result of an error. His proposed assessment in
this regard appears to be based on his own analysis of Annex 1.3 of the DRC’s Memorial. However,
that particular annex takes no account of dwellings destroyed in Ituri. The fact that the expert uses it
to assess all the dwellings destroyed in the conflict during the relevant period can only lead to an
underestimation of this category of damage. This is a point to which the DRC will return during the
oral proceedings.
80. As regards the schools destroyed, the expert refers to the Secretary-General’s report on the
United Nations Mission in the Democratic Republic of the Congo, dated 27 May 2003. He expresses
reservations, however, about the assessments made for both clinics and “administrative buildings”
in that report. In the expert’s view, the DRC’s calculations are approximate: “That they are round
sums, as in the case of dwellings (above), inevitably makes them subject to uncertainties due to an
absence of detail or evidence in respect of each individual property”94. There is no doubt here that
the figure mentioned by the DRC is the result of an overall assessment. It is nonetheless important
to note that this figure is based on the above-mentioned report of the Secretary-General, which is a
reliable source on this point.
81. As a consequence of this lack of precision and of what the expert describes as a lack of
sufficient evidence produced by the DRC in support of its claims, he proposes to reduce the amounts
91 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J.
Reports 2005, p. 231, para. 179.
92 MRDRC, para. 7.45.
93 Ibid., paras. 4.31, 4.53, 4.71, 4.75.
94 ER, para. 156.
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claimed by the DRC as reparation for the damage caused to various categories of property. To this
end, he suggests applying the following discount factors:
⎯ 25 per cent for the destruction of infrastructure “by way of seeking to take account of the inherent
uncertainty in the way this claim has been put forward”95;
⎯ 40 per cent for damage in respect of Kisangani96;
⎯ 40 per cent for the National Electricity Company (SNEL)97; and
⎯ 40 per cent for damage to the Congolese armed forces (FARDC)98.
The DRC has reservations here about the fundamental basis of the approach taken by the expert in
this regard and, in particular, how the percentages used for these various discount factors were
calculated. This is another question to which the DRC reserves its right to return during the oral
proceedings.
Done at Kinshasa, 14 February 2021
___________
95 ER, para. 157.
96 Ibid., para. 173.
97 Ibid., para. 178 (b).
98 Ibid., para. 188.