Response of the experts to the Parties' written observations on their report

Experts’ Responses to Observations of
The Democratic Republic of the Congo and Uganda
regarding
Case Concerning Armed Activities on the
Territory of the Congo
The Democratic Republic of the Congo v. Uganda
* * *
International Court of Justice
1 March 2021
1
Table of Contents
Introduction 2
Report 1: Response regarding Loss of Life: Direct Deaths (Henrik Urdal) 4
Report 2: Response regarding Conflict-Related Excess Mortality (Debarati Guha-Sapir) 9
Report 3: Response regarding Quantum Recommended Amounts: Human Lives and
Property Damage (Geoffrey Senogles)
17
Report 4: Response regarding Exploitation of Natural Resources (Michael Nest) 31
2
Introduction
1. This document contains four reports that respond to comments raised by the Democratic
Republic of the Congo’s (DRC’) Observations of the Democratic Republic of the Congo on the
Experts’ Report of 19 December 2020 (“The DRC’s Observations”) and Uganda’s Observations
on the Experts Report dated 19 December 2020 (“Uganda’s Observations”) to The 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, dated 19
December 2020 (“the Experts Report”).
2. Each report contains the response of a single expert, with an author signature on the final
page.
3. Footnotes, paragraph numbers and page numbers run consecutively throughout this entire
combined response document and are not distinct to each report.
4. Table A from the Experts Report - Introduction has not been revised for this response report.
Details of quantities and estimated damages can be found in each expert’s report.
5. It remains for the Court to make the legal findings on this matter, including all issues
relevant to attribution, if any, and hence to derive its own computations of any awards of
damages.
3
4
Report 1
Response regarding Loss of Life: Direct Deaths
Dr. Henrik Urdal
(Oslo, 1st March 2021)
5
6. This section provides my response to the Court to observations of the Parties (dated
15 February 2021) to my initial report.
7. Serving as a reminder, the terms of reference for my initial report tasked me to
provide a 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.
8. My initial report dealt exclusively with direct deaths, that is lives lost as a direct
result of armed conflict events that took place in the Democratic Republic of the
Congo between 1 August, 1998 and 2 June, 2003.
9. In its comments to my report, Uganda notes that my estimates, based on data from
the Uppsala Conflict Data Program (UCDP), an authoritative and independent
conflict data provider, are comparable to, and largely consistent with, those
undertaken by Uganda in its 2018 Counter-Memorial. I concur with this assessment.
10. My estimates are based on an aggregation of the individual events data provided in
the Georeferenced Event Dataset (GED). The source(s) of the slight differences in the
overall estimates – my estimates amounted to 28,981 direct deaths of which 14,663
were civilians, while Uganda estimated a total of 29,376 direct deaths of which
14,663 were civilians – are not known (these numbers relate to the whole of DRC for
the entire period in question). The deviations may be due to slightly different ways
of defining the spatial-temporal domain, or (as noted by Uganda in its response),
they may result from updates in the UCDP database.
11. Unlike Uganda, I did in my initial report provide numbers for both civilian and
military deaths separately for the Ituri province, which was under de facto control of
the army of the Government of Uganda during the period of interest. Uganda does
not, in its observations, challenge these numbers.
12. Uganda refers to additional alternative sources of estimates for direct conflict deaths
(specifically the Armed Conflict Location and Event Data Project (ACLED) data and
the UN Mapping Report). These data sources were not scrutinized in my initial
report.
13. Uganda claims that the aggregate numbers identified in these alternative sources do
not substantially alter the conclusions of my report. I concur with this assessment.
14. While it is likely that the different datasets, which are collected independently, have
been drawing their data from many of the same sources, previous relevant data
collection efforts in other conflict settings suggest that there are probably cases that
are unique to each dataset. As such, estimates based on one dataset alone is likely to
underestimate the true number of casualties, as indicated in the initial report.
15. Although there are multiple relevant data sources available, the absence of
individual-level data in these sources makes it impossible to combine the data in
order to identify the unique number of victims within and across the sources.
6
16. Uganda claims in its observations that my report “and recommends that Uganda pay
for each and every civilian death during the conflict without regard to whether or
not the relevant events” are attributable to Uganda. This is a misrepresentation. The
report clearly states that the summary of estimated reparations is based on a
calculation of all civilian direct conflict deaths in and outside of Ituri during the
relevant period, and that 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.’ No
attribution to Uganda of a particular number of deaths has been made.
17. In its comments on my report, the Democratic Republic of the Congo notes that
there is likely underreporting of deaths from relevant armed activities, and that the
estimates hence should be considered to be cautious. I concur with this summary.
However, it is not possible to provide a sound assessment of how significant this
underestimation is.
18. The DRC is further making the claim that my report exclusively concerns civilians and
does not include military deaths. This is correct insofar as the number of deaths used
to calculate the basis for reparations exclusively includes civilian deaths (as per the
Terms of Reference for my report). However, the report does include estimates for
military deaths occurring both in the DRC as a whole (6,494 deaths) and in the Ituri
province (1,036 deaths) for the period of interest, leaving it to the discretion of the
Court to consider whether or not such deaths should be subject to reparations.
7
Appendix 1.1: Signature of expert
Signature of expert
This report has been prepared in accordance with the terms of reference set out by the International
Court of Justice by Henrik Urdal on 1 March 2021:
Signed:
8
9
Report 2
Response regarding Conflict-Related Indirect Deaths
Professor (Em.) Debarati Guha-Sapir
(Brussels, 1st March 2021)
10
19. Introductory remarks: I carefully read Uganda’s comments to my report on indirect deaths
during 1998 – 2003 in Democratic Republic of Congo (DR Congo) (cf: Guha-Sapir report) and
appreciate the content and comments.
20. The main sections in Uganda’s observation were:
A. Dr. Guha-Sapir’s “Excess Deaths” methodology is entirely inapposite to these judicial
proceedings. (§s 31 – 35)
B. Properly applied, Dr. Guha-Sapir’s Methodology would suggest there were no excess
deaths during the relevant period (§s 36 – 40)
C. Dr. Guha-Sapir’s BCDR estimate is outdated. (§h 41 – 43)
D. Dr. Guha-Sapir’s estimate of the PCDR is too high. (§ 44 – 59)
21. In the following text, I elaborate on and address points raised by Uganda’s response. As most of
the remarks revolve around a few main issues, I have responded with reference to the relevant
paragraphs (§) from Uganda’s Observations on the experts’ reports dated 19 December 2020.
With regard to DR Congo’s Observations, I have no salient remark to make.
Debarati Guha Sapir response to Uganda’s Observations on the Expert Report
A. General remark on the total indirect deaths for the whole country and part attributed to
Uganda.
22. My first and fundamental remark is on the estimate of 4 985 775 indirect deaths. This estimate is
for the whole country through the 5-year period when DR Congo was embroiled in armed unrest
across several fronts. The percentage share of the deaths delineated in the Memorial as
attributable to Uganda was 45% (Memorial pg.15 §25), and 10% (Memorial pg.49 §64) of the total
deaths were considered to be due to violence with most due to “easily preventable and treatable
conditions” (Memorial pg. 50 §64). The full references to these metrics are quoted below. It is
clear that, should these percentage shares change at a later date, the changes should be
appropriately applied to my estimates.
“1.24. First, it is recalled that a distinction will be made between:
- the injury caused by the organs of the Ugandan State themselves – damage for which full
reparation will be sought;
- the injury caused by the irregular forces supported by Uganda in breach of international law –
damage for which full reparation will also be sought, given that, save in exceptional and
unforeseeable circumstances, such damage logically stems from that unlawful support, in the
sense that it could not have been caused without it; in this instance, it is not a question of
attributing the acts of irregular forces to Uganda, but of making reparation for damage which
presents an uninterrupted causal link with the wrongful conduct constituted by Uganda’s
support for those forces;
- the injury caused by the wrongful conduct of both Uganda and other States or groups which
were not supported by Uganda – damage for which partial reparation will be sought, taking
account of the multiple causes involved; more specifically, in light of the importance of
Rwanda’s role in the conflict, and the existence of the – more limited –role played by Burundi,
11
the DRC finds it reasonable that Uganda could be obliged to make reparation for only 45 per
cent of the damage falling into this category.”
- Extracted from Memorial pg. 15, §25
- “2.64. Most of the studies carried out after the end of the conflict have served to confirm these
findings. The International Rescue Committee puts forward a total of 3.9 million deaths,
making the war in the Congo the deadliest crisis since the Second World War: 3.9 million had
died since 1998, arguably making DR Congo the world’s deadliest crisis since World II. Less
than 10 per cent of all deaths were due to violence, with most attributed to easily preventable
and treatable conditions such as malaria, diarrhea, pneumonia and malnutrition”
- Extracted from Memorial pg. 49 – 50, §64
23. I presented my estimate for the Eastern DR Congo and applied the percent shares according to
the Memorial. When using coefficients from the Memorial, 224 449 deaths were attributable to
armed action for the whole country. The establishment of the share of the mortality by distinct
perpetrators is not in my Terms of Reference. This is documented in Table 2.2 of the Expert Report
(§ 66, page 28), see below a simplified extract.
Simplified extract from Expert Report 2 Table 2.2 page 28: Applying DRC coefficients from the
Memorial to mortality in Ituri, Eastern DRC, and DRC, 1998-2003
Ituri Eastern DRC
Indirect civilian
deaths
390 668 3 690 130 4 958 775
45% * 10% = 4.5% of
total excess deaths
18 048 167 088 224 449
1.1.1. In view of this above explanation, the following assertions by Uganda are incorrect:
1.1.2. Page 13 and 14, § 29, point 5: “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.”
1.1.3. Page 14, § 29, point 6: “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.”
B. Contestation of methodology.
24. Uganda’s arguments coalesce around the contestation of two main parameters used for the
estimation of indirect mortality, namely the choice of baseline (BCDR) and the use of small-scale
surveys.
B.1 Choice of crude death rate baseline (BCDR).
25. Uganda suggests that baseline crude death rate (BCDR) and posterior crude death rate (PCDR) are
fraught with uncertainties (§ 32). First, the choice of baseline will influence the number of indirect
12
deaths. The higher the baseline, the lower the indirect deaths and vice versa. I have used a value
for BCDR provided by UNICEF for 1997 and complies with the suggestion by Uganda to use UN
sources. It is also information that is available in the public domain.
26. UNICEF reported a BCDR value of 14/1000/year compared to the BCDR cited by Uganda –
16/1000/year. If we use 16/1000/year as the baseline as cited by Uganda, this reduces my original
number of all indirect deaths (4.9 million) by 5.8%, or 288 460 fewer deaths.
27. I used UNICEF estimates presented for 1997 one year before the war began in 1998. I feel that
this baseline more closely reflects the reality of the situation compared to projections made
later (2019).
B.2 Use of small-scale surveys to estimate prevailing death rates.
28. Uganda states that documentary evidence should be used to establish indirect mortality in
Eastern DRC during the 1998 - 2003 or the Second Congo War using sources such as mortuary
records, death certificates, sources from civil registration or vital statistics records (§31 – 35):
“She does not ‘demonstrate or ‘prove’ any deaths. She does not directly rely on any death
certificates or any other documentary evidence for that matter.”
29. While this is a desirable scenario in situations where all deaths are systematically captured by a
well-maintained death registration system in the public domain, this is essentially a non-starter in
Eastern DRC between 1998 – 2003. The data sources that Uganda proposes (i.e., death
certificates, mortuary records, and CRVS) are notoriously biased and grossly underestimate the
real death toll even in the best circumstances in African countries1, 2. In 2017, United Nations
Statistical Division (UNSD) reported having no death registration data from DR Congo at all.3 The
BBC reported that, "In 14 countries a maximum of only one in 10 deaths are recorded, including
in Nigeria, the Democratic Republic of Congo and Cameroon."4 Death registration records are
patently not a reliable source if it is a source at all in the conflict-ridden zone of Eastern DRC. Even
if there were a functioning death registration office in Eastern DRC during the war, the reality, as
Uganda realises, is that the cost of transporting the deceased as well as registration cost would
far exceed not only the resources for most families in the region but would bring nothing of
substance to the family for doing so.
30. In order to illustrate the importance of the use of documentary evidence, Uganda cites an example
of an International Criminal Court (ICC) case (§ 30, reference 43). This was a case brought against
Germain Katanga, where he was found guilty of one count of crime against humanity (murder)
and four counts of war crimes (murder, attacking a civilian population, destruction of property
and pillaging) committed on 24 February 2003 during the attack on the village of Bogoro, in the
Ituri district of the DRC” (ICC).5
31. The ICC is an intergovernmental organization and international tribunal that tries a single named
individual for war crimes, genocide, crimes against humanity, and aggression. The ICJ, one of the
1 Osman Sankoh et al, The Lancet Global Health https://www.thelancet.com/journals/langlo/article/PIIS2214-
109X(19)30442-5/fulltext
2 Setel, Macfarlane et al https://www.unhcr.org/4b0ba6e39.pdf, www.thelancet.com. Published online
October 29, 2007. DOI:10.1016/S0140-6736(07)61307-5
3 https://unstats.un.org/unsd/demographic-social/crvs/
4 Measuring Africa’s Data Gap: The cost of not counting the dead, BBC, 23 February 2020
https://www.bbc.com/news/world-africa-55674139?xtor=AL-72-%5Bpartner%5D…-
%5Blink%5D-%5Bnews%5D-%5Bbizdev%5D-%5Bisapi%5D
5 Prosecutor v. Germain Katanga, Case No. ICC-0104-01/07, Case Information Sheet, (ICC Trial Chamber II,
Updated 20 March 2018). Available from: https://www.icc-cpi.int/CaseInformationSheets/KatangaEng.pdf
13
six principal organs of the UN, deals with disputes at the level of countries in accordance with
international law and gives advisory opinions on international legal issues.
B.3 Appropriateness of small-scale surveys and citations from my academic articles on small-scale
survey limitations
32. Uganda questions small-scale surveys as an appropriate source of mortality data for DRC and for
Eastern DRC, in particular. These surveys use standardised methods, developed by the SMART
survey group and well-validated in the field. Experts from UNICEF, US Centres for Disease Control
and renowned academics designed this methodology for Disease Control and Prevention.
33. The methodology I have used minimises concerns raised about the use of small-scale surveys. For
example, the allegations of level of uncertainties made by Uganda in §28 and 32 are not valid. My
estimation of the PCDR defines the uncertainty limits in a clear and transparent way. I note that
the CDR projections from the UN, recommended by Uganda, do not provide confidence intervals
and therefore do not provide measures of uncertainty. In contrast, my estimations for the conflict
period do present the confidence intervals and a measure of uncertainty. Small-scale surveys
provide precision levels, which are provided by neither documentary evidence nor UN projections.
34. In § 47 Uganda claims that the 38 surveys used to make my estimation of indirect deaths are not
independent and were conducted mostly by the same advocacy group. Although the surveys were
conducted occasionally by the same humanitarian organization, the statistical understanding of
independence prevail in the methodology. The sample size and selection of observations from
each geographical/health zone are independent of the other — this is a standard practice in survey
sampling. The organizations that conducted the surveys are among the most credible in
conducting small scale surveys and some of them have been supervised by professors from
prestigious universities of the world. With a team of renowned experts in the field and many
years of experiences in the field, I strongly believe that these surveys are statistically sound and
properly done.
B.4 Applied properly, Dr. Guha-Sapir’s methodology would suggest there were no excess deaths
during the relevant period (§ 36 – 40).
35. Uganda claims that deaths may have actually reduced during the Second Congo War which is an
implausible assertion. Accounts from UN and many other reliable sources describe the opposite
of this scenario. Further, Uganda claims that people in Eastern DR Congo were living a better life
during the war than they did before, in part, per Uganda’s claim, due to the influx of international
humanitarian aid. This assertation does not reflect the circumstances on the ground during the
Second Congo War.
36. Humanitarian aid for the Second Congo War was mainly for the refugees who had arrived in
Eastern DRC from Rwanda and not for the local population. In addition, it is widely acknowledged
that much of it was either misdirected or not deployed at all due to security concerns.6 Many
humanitarian agencies including Medecins sans frontiers (MSF), who provide services in zones of
violent conflict and are listened to carefully by UN instances, actually left the zone in protest
against the massive leaks in aid. The UNHCR Annual Protection Report 1998 states ‘"By the
year end [1998] the Eastern DRC remained inaccessible to UN personnel for all practical
6 Lischer, SK (2003). Collateral Damage: Humanitatian Assistance as a Cause of Conflict. International Security
28(1), 79 – 109. http://www.jstor.org/stable/4137576
14
purposes." 7 Eastern DRC in this period was out of bounds for most humanitarian workers and
international officials could not enter the zone without UN armed escorts. It is more than unlikely
that the conditions for the local population during the war actually improved during the Second
Congo War and the assertion that aid helped reduce death rates of the local population is
inexplicable.
C. Final remarks.
37. The arguments put forth by Uganda are often ingenuous, misleading and redundant. However, I
have substantively clarified the concerns raised by Uganda in a transparent manner.
38. In summary, my estimate of 4.9 million excess indirect deaths is for the entirety of the country
from all causes. My Terms of Reference do not ask me to assign indirect deaths to specific
perpetrators. As described above (Section A, page 2, Table 2.2 and accompanying text), if the
percent shares put forward in the Memorial are used, I come to a total of 167 088 excess indirect
deaths in Eastern DRC and 18 048 excess indirect deaths in Ituri during 1998 - 2003.
7 UNHCR, Center for Documentation and Evaluation, Democratic Republic of the Congo: 1998 Annual
Protection Report
15
Appendix 2.1: Signature of Expert
Signature of expert
This report has been prepared in accordance with the terms of reference set out by the International
Court of Justice by Debarati Guha Sapir on 1 March 2021:
Signed:
16
17
Report 3
Response regarding Quantum Recommended Amounts:
Human Lives and Property Damage
Geoffrey Senogles
(Nyon, 1st March 2021)
18
SECTION: Injury to persons
39. In this section, I provide the Court with my responses to comments made by the DRC and
Uganda in the Parties’ respective written observations, both of which were dated 15 February
2021.
40. My comments in this section are addressed to the Court.
41. In essence: The DRC provides observations arguing that my recommended compensation
amounts are too low, while Uganda provides observations arguing that my recommended
compensation amounts are too high.
42. At the outset of this section, I can highlight that it is my very clear understanding that it is the
Court (and only the Court) which makes findings as to which claimed losses are compensable
and as to the amount of any compensation to be awarded, if any. It is for the Court – absolutely
– to receive and consider my opinions in writing and orally, and thereafter to decide to what
extent, if at all, to be assisted in their deliberations by my opinions. My role is limited – I know
that and I am very well aware and am respectful of those limitations.
43. Contrary to what is stated by Uganda8, it is not stated in my report and it is not my opinion that
the individual compensation figures recommended in my section of our report dated 20
December 2020, should be applied by the Court across all alleged victims. Uganda choose not to
quote my report but rather to misunderstand or mischaracterise my report by stating “… he
recommends the following fixed amounts for all alleged victims of the various injuries claimed
by the DRC” [italics as used in Uganda’s text].
44. This form of words chosen by Uganda is not a quotation from my report – and in any event, it is
quite simply incorrect. It does not express my opinion.
45. Rather, the individual amounts recommended in relation to injury to persons9, are intended for
consideration by the Court in respect of only those lives found by the Court to have been lost or
impacted by events found by the Court to be attributable to Uganda. I express no opinion or
make no comment on any such findings by the Court.
46. Furthermore I can refer the Court here, as I will repeatedly, to paragraph 12 of our report dated
20 December 2020 in which we made our guiding principle clear right at the start, indeed in the
third substantive paragraph of our report, that “[i]t 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.”10
47. Both the DRC and Uganda make observations on the UNCC as having been referenced by me in
our report dated 20 December 2020.
48. In the DRC’s Observations11, the applicability of UNCC valuations is questioned even though the
paragraphs in my report cited by DRC12, themselves describe the referencing of UNCC awards as
benchmarks in the DRC Memorial13.
8 Uganda Observations dated 15 February 2021, para. 69.
9 Experts’ Report dated 20 December 2020, summary table at para. 139.
10 Experts’ Report dated 20 December 2020, para. 12.
11 DRC Observations dated 15 February 2021, para. 35.
12 Experts’ Report dated 20 December 2020, paras. 137 and 138.
13 Experts’ Report dated 20 December 2020, para. 137, footnote 64 citing the DRC Memorial para. 3.24.
19
49. The DRC argues that use of the UNCC goes against the Congolese courts’ practice of not fixing
the amount of compensation awarded by reference to the act14.
50. It is not my opinion, as the DRC queries “Why would the valuations of the UNCC alone be
reasonable?”15 and I will return to this topic later in this section. In my view, the Court has the
challenge of making its findings in respect of a wide range of individuals allegedly impacted and
a range of types of personal loss. In these circumstances, it is my recommendation to the Court
to adopt fixed compensation amounts per person to be applied to each instance of each type of
loss found to be attributable to Uganda – and as attribution is a legal issue, I have no opinion.
51. In my role as independent expert appointed by the Court, I endorse the point that the Court will
make its own findings on valuation, if any, based on the evidence, on the opinions and on the
methodologies that the Court has before it and which the Court finds to be relevant and reliable.
To this end, it appears reasonable that the UNCC (alone) or indeed any single basis could be
found by the Court as being inadequate. This is for the Court to decide.
52. It remains my view that the UNCC compensation amounts in respect of injury to persons
represent useful guides to the Court, in its deliberations on compensation awards, if any.
53. In all instances, and fundamental to my opinions, each individual compensation amount
recommended in my report is lower than or equal to the DRC claimed amount. To recommend
individual compensation amounts higher than those claimed would be inappropriate.
54. In Uganda’s observations, they appear to argue that the UNCC has no relevance and therefore
should not be considered by the Court16. I do not share this view but rather I am of the opinion
that the UNCC provides the Court with a useful, timely and relevant military reparation claims
experience and decisions on compensation in respect of similar nature of losses claimed. The
UNCC is by no means suggested as the benchmark, but rather, as a potentially useful guide for
consideration by the Court.
55. Contrary to what Uganda states17, the UNCC remains in operation today and I can also comment
that my own personal experience of working inside the UNCC claims assessment processes does
not accord with Uganda’s description of the work practices as taken from a 2 May 1991
statement in the name of the United Nations Secretary General; a report made exactly two
months after the official ceasefire date of 2 March 1991 and before the UNCC’s work had
begun18. As but one example, during my time on staff, I was involved in several UNCC oral
proceedings in which Iraq and claimants appeared along with their external legal representatives
and expert witnesses.
56. Uganda considers the Eritrea-Ethiopia Claims Commission (“EECC”) to be “a more relevant
precedent”19 than the UNCC.
57. In respect of evidentiary requirements, Uganda goes on to describe the EECC in the following
terms: “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
14 DRC Observations dated 15 February 2021, para. 39.
15 DRC Observations dated 15 February 2021, para. 35.
16 Uganda Observations dated 15 February 2021, for example para. 68.
17 Uganda Observations dated 15 February 2021, para. 72.
18 Uganda Observations dated 15 February 2021, para. 71 and footnote 125.
19 Uganda Observations dated 15 February 2021, para. 74.
20
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.”20 [my emphasis added]
58. To this end, so as to assist the Court I am more than willing to refer to the EECC’s final award on
damages, which was dated 17 August 200921.
59. The Court will be aware that the EECC included specific commentary on its evidentiary
requirements, taking into account the circumstances faced by Eritrea and Ethiopia. With this in
mind and even though the following quotes are lengthy, I include them here in full since they are
pertinent to this issue raised by Uganda:
“35. At the liability phase, the Commission required clear and convincing proof of
liability. It did so because the Parties’ claims frequently involved allegations of serious—
indeed, sometimes grave—misconduct by a State. A finding of such misconduct is a
significant matter with serious implications for the interests and reputation of the affected
State. Accordingly, any such finding must rest upon substantial and convincing evidence. This
is why the International Court of Justice and other international tribunals require that facts
be established with a high degree of certainty in such circumstances.
36. In the hearings on the Group Number One damages claims, Ethiopia argued
that decisions relating to damages should be based on the preponderance of the evidence.
Eritrea urged that the Commission continue to utilize a standard of “clear and convincing”
evidence. Like some other courts and tribunals, the Commission believes that the correct
position lies in an amalgam of these positions. The Commission has required clear and
convincing evidence to establish that damage occurred, within the liability parameters of
the Partial Awards. However, for purposes of quantification, it has required less rigorous
proof. The considerations dictating the “clear and convincing standard” are much less
compelling for the less politically and emotively charged matters involved in assessing the
monetary extent of injury. Moreover, the Commission recognizes the enormous practical
problems faced by both Parties in quantifying the extent of damage following the 1998–
2000 war. Requiring proof of quantification of damage by clear and convincing evidence
would often—perhaps almost always—preclude any recovery. This would frustrate the
Commission’s agreed mandate to address “the socio-economic impact of the crisis on the
civilian population” under Article 5(1) of the Agreement.
37. The present task is not to assess whether the two State Parties committed
serious violations of international law. That has been done. Now, the Commission must
determine, insofar as possible, the appropriate compensation for each such violation. This
involves questions of a different order, requiring exercises of judgment and approximation.
As discussed below in connection with particular claims, the evidence regarding such
matters as the egregiousness or seriousness of the unlawful action, the numbers of
persons injured or property destroyed or damaged by that action, and the financial
consequences of such injury, destruction or damage, is often uncertain or ambiguous. In
such circumstances, the Commission has made the best estimates possible on the basis of
the available evidence. Like some national courts and international legislators, it has
recognized that when obligated to determine appropriate compensation, it must do so
20 Uganda Observations dated 15 February 2021, para. 75.
21 Eritrea-Ethiopia Claims Commission - Final Award - Ethiopia's Damages Claims, 17 August 2009, volume XXVI,
pp. 631-770. Available at: https://legal.un.org/riaa/cases/vol_XXVI/631-770.pdf
21
even if the process involves estimation, or even guesswork, within the range of possibilities
indicated by the evidence. Nevertheless, in some cases the evidence has not been sufficient
to justify any award of compensation.
38. The Commission also has taken account of a trade-off fundamental to recent
international efforts to address injuries affecting large numbers of victims. Institutions such
as the United Nations Compensation Commission (“UNCC”) and various commissions
created to address bank, insurance and slave labor claims stemming from the Nazi era
have adopted less rigorous standards of proof, either to show that an individual suffered
injury or regarding the extent of that injury. As a trade-off, compensation levels also have
been reduced, balancing the uncertainties flowing from the lower standard of proof.
While the claims addressed in this Award are State claims, not mass claims, the Commission
has in some instances applied similar analysis with respect to claims for injuries or damages
that were suffered by large, but uncertain, numbers of victims and where there is limited
supporting evidence.”22 [my emphasis added]
60. The Congolese courts’ awards23, at least to the limited extent presented and evidenced in the
DRC Memorial, give the appearance of awarding higher individual amounts than the individual
amounts as claimed by the DRC. Therefore, due to their lack of substantiation, and their values
being higher than the relevant claimed amounts, in my opinion the Congolese court’s awards
should not be persuasive in the Court’s own deliberations.
61. In my report, I have addressed the individual claim amounts for loss of life and also personal
injury claims so as to provide assistance to the Court. As referred to in our report24, we fully
recognise that it is entirely within the Court’s judicial discretion as to whether and/or to what
extent, to have any regard to my opinions in this regard. The Court has complete discretion as
to whether or not consider my opinions on any personal losses claimed.
62. To be clear: My report sections do not in any way address the numbers of individuals affected
by loss of human life, injury, rape, child soldier, or population flight. Some of those issues are
covered by my colleagues Dr Henrik Urdal and Dr Debarati Guha Sapir. It will be for the Court to
make its findings on the numbers of individuals affected, if any, to which the Court may then
choose to apply per person dollar compensation amounts, if any, in order to derive total
compensation amounts, if any. All such decisions and calculations, if any, are entirely matters
for the Court.
63. As a separate matter, and again for the avoidance of doubt, the Court will have already noted
that my report sections make no comment whatsoever as to whether any individuals were
impacted by acts that the Court finds to be attributable to Uganda – which is a legal matter for
the Court.
64. In its Final Award – Ethiopia’s Damages Claim, the EECC took an approach to compensation for
loss of life and for injuries that resulted in findings of round sum awards of compensation
applicable to defined groups of affected individuals, without always specifying the number of
individuals involved due to the previously mentioned and already quoted evidentiary constraints
which had been accepted by the EECC as “enormous practical problems” faced by Eritrea and
Ethiopia25.
22 Eritrea-Ethiopia Claims Commission - Final Award - Ethiopia's Damages Claims, 17 August 2009, paras. 35-38.
23 As referred to in some detail in the Uganda Observations dated 15 February 2021, para. 62.
24 Experts’ Report dated 20 December 2020, para. 12.
25 Eritrea-Ethiopia Claims Commission - Final Award - Ethiopia's Damages Claims, 17 August 2009, para. 36.
22
65. By way of example, the following paragraph quoted in full illustrates the approach taken by the
EECC to making its findings on compensation:
“e. Award
103. Given the manner in which Ethiopia presented its claims, the Commission
has had to make its best estimates of the gravity and extent of Eritrea’s jus in bello violations
on the three fronts involving death, physical injury, disappearance, forced labor and
conscription of civilians based on the evidence previously in the record. In doing so, it has
given important weight to the seriousness of the offenses against life and human dignity
proved at the liability phase. Based on its analysis of the evidence, the Commission awards
Ethiopia US$11,000,000 in respect of these claims.”26
66. In related previous paragraphs, in which the EECC set out its analysis of the claim components
and evidence made available, details were not provided as to how the round sum award amount
of USD 11,000,000 was calculated – either in terms of precise numbers of individuals in each
category of loss (i.e. a, killings; b, beatings and woundings; c, abductions and disappearances; d,
forced labor and conscription) or of each per person award amount in respect of each type of
loss27.
67. Similarly, in respect of alleged rape, the EECC made the following award:
“109. Despite the shortcomings of both Parties’ damages methodologies, the Commission
considers that this serious violation of international humanitarian law demands serious relief.
Neither symbolic nor nominal damages will suffice in the face of the physical, mental and
emotional harm known to be suffered by rape victims.
110. Accordingly, the Commission awards Ethiopia (as it does Eritrea in its parallel Award)
US$2,000,000 in damages for failing to prevent the rape of known and unknown victims in Irob,
Dalul and Elidar Weredas. In so doing, the Commission expresses the hope that Ethiopia (and
Eritrea) will use the funds awarded to develop and support health programs for women and girls
in the affected areas.”28
68. This methodology used by the EECC, deriving round sum compensation amounts in respect of a
given group of impacted individuals29, is not available to me as a basis for my recommendations
to the Court. The reason for this is straightforward – my opinions do not deal with the numbers
of individuals allegedly impacted by Uganda, if any. My opinions only cover ‘per person’ dollar
amounts that the Court may consider as per person compensation amounts as part of the
Court’s overall deliberations.
69. Thus, it will be for the Court to make its own findings in a two-step process on the amount, if
any, to award in respect of each individual impacted, if any, by acts or omissions, if any, found by
the Court to be attributable to Uganda – a sentence which necessarily contains several ‘if any’
qualifying clauses.
26 Eritrea-Ethiopia Claims Commission - Final Award - Ethiopia's Damages Claims, 17 August 2009, para. 103.
27 Eritrea-Ethiopia Claims Commission - Final Award - Ethiopia's Damages Claims, 17 August 2009, paras. 82-
102.
28 Eritrea-Ethiopia Claims Commission - Final Award - Ethiopia's Damages Claims, 17 August 2009, paras. 109-
110.
29 Which in my view is not an unreasonable methodology.
23
70. Uganda refers to the UNCC’s Category B Claims as being more relevant to the (lower) evidence
provided in support of the DRC claims in this regard30. Uganda however continues by clarifying
that: “ … in 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.”31
71. Under its Category B, the UNCC awarded maximum amounts of either USD 10,000 to the family
of a deceased person or USD 2,500 for individuals – and these are quoted by Uganda32.
72. As stated in our previous report33, my general opinion on the documentary evidence provided by
the DRC is that relatively poor evidence has been provided to the Court. Uganda approvingly
includes extensive quotes from my opinions on this topic in its latest Observations submitted to
the Court34. My opinions on the evidence provided by the DRC are based on my experience in
legal dispute resolution since 1995 and are expressed in plainly put, impartial language.
73. The DRC individual claim forms35 that I have seen do go some way towards substantiating the
identity, the nature and value of losses claimed. They cannot however be described by an
independent professional as being anywhere near perfect or ideal evidence for use in legal
proceedings.
74. Of direct relevance to this issue, I refer the Court back to a previously quoted paragraph from
the EECC Final Damages Award which warrants repeating:
“37. The present task is not to assess whether the two State Parties committed serious
violations of international law. That has been done. This involves questions of a different order,
requiring exercises of judgment and approximation. As discussed below in connection with
particular claims, the evidence regarding such matters as the egregiousness or seriousness of
the unlawful action, the numbers of persons injured or property destroyed or damaged by that
action, and the financial consequences of such injury, destruction or damage, is often
uncertain or ambiguous. In such circumstances, the Commission has made the best estimates
possible on the basis of the available evidence. Like some national courts and international
legislators, it has recognized that when obligated to determine appropriate compensation, it
must do so even if the process involves estimation, or even guesswork, within the range of
possibilities indicated by the evidence. Nevertheless, in some cases the evidence has not been
sufficient to justify any award of compensation.” [my emphasis added]
75. In my role as independent expert to the Court, I remain at the disposal of the Court to assist by
discussing this issue during the oral hearing.
76. On grounds that only limited documentary evidence has been presented by the DRC, there may
exist a reasonable basis for the Court to make a finding that awards a lower amount - of say,
USD 10,000 in line with the UNCC’s lower evidence threshold Category B award amount referred
to by Uganda - to the family of a deceased person who was killed in a targeted action
attributable to Uganda (Note; attribution is a legal issue on which I have no opinion), rather than
an amount of USD 30,000 as recommended in my previous report.
30 Uganda Observations dated 15 February 2021, para. 91.
31 Ibid.
32 Uganda Observations dated 15 February 2021, para. 90.
33 Experts’ Report dated 20 December 2020.
34 Uganda Observations dated 15 February 2021, for instance in para. 62 on pages 29-32.
35 Known as ‘victim identification forms’.
24
77. To be clear however, my view remains that by taking into account evidentiary constraints likely
to have been faced by Congolese individuals completing their ‘victim identification forms’ – not
dissimilar to EECC’s evidentiary problems faced by the two relevant states in that action and as
was directly addressed by the EECC (as referred to above) – an amount of USD 30,000 in
compensation for the death of an individual deliberately targeted in military actions is
reasonable for consideration by the Court. The deliberations of the Court will require a judicial
assessment of the Court’s own evidentiary thresholds in this matter – and I remain available to
provide assistance if requested.
SECTION: Property damage
78. The DRC expresses concerns with the use of the various percentage “discount factors” used in
my report to adjust downwards the claimed amounts to account for evidentiary deficiencies
observed36.
79. Similarly, Uganda expresses concerns on the same topic37.
80. My methodology adopted is reasonable, reasoned and a standard practice in claims assessments
in similar circumstances.
81. I have reviewed the evidence and based thereon I have derived my own recommended
adjustments (using a percentage deduction approach38) based on my experience, and in the
absence of any prescribed methodology or guidelines that had been previously created by the
Court for use in this matter.
82. By way of illustrative examples from the EECC precedent that Uganda has referred the Court
towards as being “more pertinent”39, in the following paragraphs I list a selection of percentagebased
evidentiary adjustments made by the EECC (without specifying the calculated basis of
each percentage found to be applicable) to cure evidentiary gaps when arriving at their awards
of compensation for claimed property losses.
“144. The engineering survey documenting the extent of physical damage to
Zalambessa estimated the costs of repair and reconstruction of churches, houses and various
public buildings as of December 2000 to be 149,441,206 birr. As noted above, a senior
Ethiopian public works official projected that the actual costs of reconstruction after
December 2000 would be higher, because of post-war increases in construction costs. In
determining compensation for Eritrea’s claims for damage to or destruction of a large
number of identified buildings, the Commission has taken account of documented post-war
shifts in exchange rates and increases in construction costs in Eritrea. In order to treat the
Parties equally, it should accord similar treatment to Ethiopia’s claim. As the record did not
clearly indicate the amount of post-war increases in construction costs in Ethiopia, the
Commission estimates them to have been 20%. Increasing the December 2000 engineering
study’s estimate by 20% equals 179,329,400 birr. The Commission awards 75% of this
amount, or US$16,815,000, as compensation for damage to and destruction of buildings in
Zalambessa in violation of the jus in bello.”40
36 DRC Observations dated 15 February 2021, para. 81.
37 Uganda Observations dated 15 February 2021, for instance, para. 107.
38 For instance, a relatively ‘good’ file of evidence may derive a 10% evidentiary discount factor, as compared
to a relatively ‘poor’ file of evidence may derive a 50% evidentiary discount factor.
39 Uganda Observations dated 15 February 2021, para. 75.
40 Eritrea-Ethiopia Claims Commission - Final Award - Ethiopia's Damages Claims, 17 August 2009, para. 144.
25
“149. Ethiopia claimed US$107,355 for a Rubb hall (a portable grain storehouse)
looted from the Relief Society of Tigray. The evidence showed that the Rubb hall was
originally donated by Catholic Relief Services in 1993, and was placed on the Society’s books
in that year at an initial value of 858,840 birr. Given that the property was several years old
at the time of its loss, the Commission awards 80% of the amount claimed, or
US$86,000.”41
“ 150. Ethiopia claimed US$167,578 for property looted from the Tigray Regional
Agriculture Bureau following the invasion of Zalambessa. The valuation was based on the
declaration of a senior Agricultural and Natural Resources Development Office official and
accompanying lists of property lost at several locations. The official stated that the lists were
“compiled based on estimates of the value and inventory of these items as of the time of the
war,” but did not state a value of property allegedly looted in Zalambessa. The
accompanying tables appeared to be based on the authorized levels of supplies, not on
amounts actually on hand. They also listed some supplies lost from Badme (and perhaps also
other locations) as well as from Zalambessa. The claimed losses do not appear unreasonable
in the circumstances. However, as the evidence was based on estimates (albeit by a
knowledgeable official), and was imprecise in other respects, the Commission awards 75%
of the claimed amount, or US$126,000.”42
“151. Ethiopia alleged that Eritrea looted construction machinery and material
being used by the Tigray Regional Rural Roads Authority in the Zalambessa area at the
outbreak of the war, to the value of US$1,132,694. More than half of this claim was for the
original acquisition cost of three bulldozers and two dump trucks allegedly looted. There was
no evidence showing that this machinery and material actually was taken by Eritrea; there
was evidence showing that, prior to the war, much of it was stored in a facility several
kilometers south of Zalambessa. Road building material and heavy construction equipment
would have been equally valuable to both armies for building trenches and other military
engineering works on the static Zalambessa front. In this regard, there was uncontested
evidence that both armies were using bulldozers to dig trenches in the Zalambessa area in
mid-May 1998, prior to Eritrea’s attack. Given the ambiguities of the evidence, the
Commission awards Ethiopia the dollar equivalent of 50% of the amount claimed, or
US$566,000.”43
“152. Finally, Ethiopia claimed US$3,269 for looting of tables, chairs, a tennis table
and rackets, and a pool table from the office of the Tigray Youth Association. While the
evidence for this claim was limited, the character and amount of the claim appear
reasonable in the circumstances. The Commission accordingly awards US$3,000 in respect
of this claim.”44
83. In circumstances in which full and proper documentary evidence has not been provided by a
claimant, in my view and in my experience it is incumbent on a court, tribunal or arbitrator to
make their findings on quantum after taking into account at least two relevant issues:
a. The extent of the evidentiary deficiency when measured against what the court/tribunal
would expect to see as ‘normal’ evidence.
41 Eritrea-Ethiopia Claims Commission - Final Award - Ethiopia's Damages Claims, 17 August 2009, para. 149.
42 Eritrea-Ethiopia Claims Commission - Final Award - Ethiopia's Damages Claims, 17 August 2009, para. 150.
43 Eritrea-Ethiopia Claims Commission - Final Award - Ethiopia's Damages Claims, 17 August 2009, para. 151.
44 Eritrea-Ethiopia Claims Commission - Final Award - Ethiopia's Damages Claims, 17 August 2009, para. 152.
26
b. Reasons or prevailing circumstances, if any, justifying or explaining the deficiency in
evidence provided.
84. I remain of the view that my recommended methodology of adjusting the DRC’s various
property loss claims to account for deficient evidence produced is appropriate for due
consideration and weighting by the Court.
85. It is entirely within the Court’s discretion to make its own findings as to the Court’s own views of
the evidence provided by the DRC, and hence to impose the Court’s own evidentiary adjustment
in deriving an individual compensation amount, if any.
86. In the event that the Court finds that a claim is not supported to any extent45, then this valuation
methodology is sufficiently flexible as to allow for the Court to decide on a 100% evidentiary
discount factor to be applied to the claimed amount; a finding which would result in no
compensation being awarded.
87. The DRC includes a query regarding why my report does not address what it states were claims
in respect of damage to religious properties46, whereas my report addressed each of the claims
as set out in the DRC Memorial Chapter 7. Indeed, some descriptive references to instances of
alleged damage to religious properties were made in Chapter 4 of the DRC Memorial, as referred
to in the DRC Observations47, but without explanation those matters were not carried forward
and detailed in the DRC Memorial chapter48 which set out the DRC claim amounts in whatever
level of detail was available. Accordingly, I have dealt with those claims that have been detailed
by the DRC in their Memorial and any deficiency, if any, lies in the presentation of the DRC claim.
88. In respect of the DRC’s claim in respect of Ituri property losses, Uganda makes flawed
observations about my report’s analysis and recommendations.
89. Uganda inaccurately states that my report “ignored … contradictory materials”49, whereas it
appears that Uganda has not carried out an examination of the evidence in the file. Although
Uganda’s Observations do not make their own analysis clear, if I understand their assertion
correctly, it appears that Uganda has made an unstated and erroneous assumption that each
instance of a mention of “habitation” in the detailed list of assets claimed, would represent a
single dwelling or house50. This assumption is shown to be unreliable by a review of the
evidence supplied by the DRC, since in multiple instances one asset owner51 lists more than one
habitation.
90. Uganda also that the DRC evidence in “Annex 1.3 of the DRC Memorial, which contains only the
summary table shown below:” (table not shown)52. This is not accurate as Annex 1.3 of the DRC
Memorial contains multiple lists and files detailing claimed losses across four types of loss
(including loss of assets), and also, specifically in respect of assets, these detailed Annex 1.3 lists
cover five localities53. The 11-page summary list54 from which Uganda attaches one page in is
45 That is, the Court finds the claim narrative in conjunction with its supporting evidence provided to be utterly
deficient, defective, unconvincing or similarly unsatisfactory.
46 DRC Observations dated 15 February 2021, para. 78.
47 DRC Observations dated 15 February 2021, footnote 93.
48 Chapter 7.
49 Uganda Observations dated 15 February 2021, para. 119 and paras.111-126 generally.
50 Uganda Observations dated 15 February 2021, para. 118 and footnote 170.
51 Or “victime” as in the original language.
52 Uganda Observations dated 15 February 2021, para. 116.
53 Beni, Butembo, Gemena, Ituri and Kisangani.
54 “Liste Biens Perdus et leurs frequences ITURI.pdf” in Annex 1.3
27
Observations55, is supported by a separate 194-page detailed software generated file56 that lists
assets claimed to have been lost by 1,313 separate Ituri-based asset owners.
91. Uganda makes reasonable points in respect of the lack of evidence presented by the DRC in
respect of the claimed unit reconstruction costs. Uganda is correct that, due to the
overwhelming majority of dwellings for which a claim has been made adopt a unit rebuilding
cost of USD 300, it is reasonable for me to recommend this award amount – even though
documentary evidence has not been made available.
92. In sum, taking into account evidentiary issues on claimed reconstruction costs and the
reclassification of the category of dwellings, in my view the recommended amount of
compensation of USD 5,270,20057 (which represents 40% of the claimed amount of USD
12,956,200) is reasonable for the Court to consider in its deliberations.
93. In respect of property claims in Kisangani, Beni, Butembo and Gemena, the Ugandan
Observations makes a fair point and this warrants a correction of my calculations.
94. Uganda correctly identifies a clerical error on my part, by not reflecting the updated DRC claim
amounts from the DRC’s written response to the Court’s question no. 14.
95. Since I have previously dealt with my recommended methodology of making evidentiary
adjustments where evidence is less than complete, I can set out below the revised
recommended amounts which have been calculated by adjusting the updated DRC claim figures
by using the same evidentiary discount factors as in my previous report. The resulting
recommended amounts are shown in the table below:
Updated
claim
amounts58
Updated
recommended
amounts
Kisangani59 60 USD 15,197,287 USD 9,118,372
Beni61 62 USD 5,022,087 USD 3,766,565
Butembo63 64 USD 2,616,444 USD 1,962,333
Gemena65 USD 97,55066 USD 64,785
USD 22,933,368 USD 14,912,055
96. It follows that the table below also requires updating to reflect these changes:
55 Uganda Observations dated 15 February 2021, para. 116.
56 “Victimes_PerteBien_ITURI.pdf” in annex 1.3
57 Experts’ Report dated 20 December 2020, para. 152.
58 DRC Responses to Court’s questions, para. 13.3
59 Recommended amount is: USD 15,197,287 (claimed) x 60%
60 Updated (reduced) claim amount is in the DRC Annex 1.10D
61 Recommended amount is: USD 5,022,087 (claimed) x 75%
62 Updated (reduced) claim amount is in the DRC Annex 1.6D
63 Recommended amount is: USD 2,616,444 (claimed) x 75%
64 Updated (reduced) claim amount is in DRC Annex 1.7D
65 Recommended amount is: USD 86,380 (evidenced and unchanged) x 75%
66 The claim amount for Gemena was unchanged.
28
Summary of recommended amounts - property damage
97. In summary, each category’s recommended amounts are shown alongside the claimed amounts
in the table below:
Updated
claimed
amount
Updated
recommended
amount
Property in four named locations67 USD 22,933,368 USD 14,912,055
Property of la Société Nationale d'Electricité USD 97,412,090 USD 56,974,865
Property of Congolese armed forces USD 69,417,192 USD 41,650,315
USD 189,762,650 USD 113,537,235
98. In conclusion, in respect of this component of the DRC claim, the claimed amount has been
reduced by USD 2,694,70768 and this results in the recommended compensation amount being
reduced by USD 1,720,72169.
99. All other recommended amounts remain unchanged.
67 Updated as shown above.
68 Being USD 192,457,357 – USD 189,762,650 = USD 2,694,707.
69 Being USD 115,257,956 – USD 113,537,235 = USD 1,720,721.
29
Appendix 3.1: Signature of Expert
Signature of expert
This report has been prepared in accordance with the terms of reference set out by the International
Court of Justice by Geoffrey Senogles on 1 March 2021:
Signed:__________________________
30
31
Report 4
Response regarding Exploitation of Natural Resources
Dr. Michael Nest
(Montréal, 1st March 2021)
32
Table of Contents
A. Introduction 32
B. Response to The DRC’s Observations 34
C. Response to Uganda’s Observations 39
D. Revision to Estimated Quantity of Gold Production 45
Appendix 4.1: Terms of Reference 51
Appendix 4.2: List of References 52
Appendix 4.3: Revised Tables for Gold 54
Appendix 4.4: Signature of Expert 58
List of Figures and Tables
Figures Page
4.B1 Log and board prices as a percentage of 1996 prices 39
4.C1 Stages of coltan value chain: percentage of international market price 43
4.C2 Price observations from DRC as a percentage of Nest Report’s base price 44
Tables
4.B1 Ituri: two categories of value extracted, 1998-2003 35
4.D1.1 Uganda’s Counter-Memorial: gold exports (kgs): Tables 8.1 and 8.2 (full year) 47
4.D1.2 Uganda’s Counter-Memorial: gold exports (kgs): Tables 8.1 and 8.2 (1998
and 2003 at five months only)
47
Tables from Nest Report with revised gold data
D4.1 Est. of quantity of resources produced, 1998-2003 (revised) 47
D4.2 Annual average resource prices, by year (not revised) 48
D4.3 Resource prod. in 2020 USD before value exploited (revised) 48
D4.4 Est. value exploited by personnel: UAI, Ituri & non-Ituri (revised from
Corrigenda)
48
D4.5 Est. of proxy taxes on theft and fees & licences, and tax on profits as
percentages (not revised)
49
D4.6 Est. proxy tax rate for theft (not revised) 49
D4.7 Est. proxy tax rate for value of fees and licences (not revised) 49
D4.8 Tax range and adopted tax on value (not revised) 49
D4.9 Value of exploitation disaggregated by method, Ituri and non-Ituri, 2020 USD
(revised)
50
33
A. INTRODUCTION
100. This report addresses comments raised by the Observations of the Democratic Republic of the
Congo on the Experts’ Report of 19 December 2020 (“The DRC’s Observations”) and Uganda’s
Observations on the Experts Report dated 19 December 2020 (“Uganda’s Observations”), with
respect to Report 4: Exploitation of Natural Resources by Dr. Michael Nest (“the Nest Report”)
in The 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, dated 19 December 2020.
101. Comments raised by the Democratic Republic of the Congo (DRC) are addressed in Part B and
comments raised by Uganda are address in Part C.
102. However, the DRC and Uganda both raised a similar concern relevant to the Court’s terms of
reference (TOR) for the Nest Report. This concern is addressed immediately below.
103. Each Party’s Observations has a different interpretation of what data should inform the dollar
amount of reparations considered the result of “illegal exploitation”:
103.1 The DRC suggests in its Counter-Memorial (DRC 2018) and repeats in its Observations
that reparations should be the value of the total quantum of production, and makes
an estimate of the total value of “injuries caused to its natural wealth by Uganda”
within an area approximating what the Nest Report terms the Ugandan Area of
Influence (UAI) (DRC 2018: §5.190). These amounts are $657.5m for gold, $7.1 for
diamonds, $2.9m for coltan, $2.7b for fauna, and $100.0m for deforestation.
103.2 Uganda’s Observations suggests reparations should be a subset of value of the total
quantum of production, and proposes two possible methods to estimate this subset:
that “…the loss to the State would be the value of DRC’s loss less the costs incurred in
extracting and transporting (and possibly refining) those minerals for sale. [OR] If a
private party owned the mine, the DRC’s loss would be limited to foregone tax
income, royalties or other fees payable to the State” (§184).
103.3 In keeping with the TOR, the Nest Report estimates both amounts and makes them
available to the Court: (1) the value of the total quantum of production (as suggested
by the DRC); and (2) a subset of value illegally exploited by persons not authorised to
do so (as suggested by Uganda). As is discussed in more detail in Part C, in identifying
a subset of value of “loss” the Nest Report uses an approach similar to that suggested
by Uganda (an estimation based on taxes and fees).
103.4 Whether the Court decides that the value that was “illegally exploited” should be (1)
or (2), or some other amount, is a matter for the Court.
34
B. THE DRC’S OBSERVATIONS
104. This section contains responses to The DRC’s Observations organized under the report’s own
headings.
SECTION: “The non-inclusion of fauna and deforestation” (§44-§49)
105. The DRC’s Observations notes that the DRC’s Counter-Memorial (2018) makes a reparation
claim of “almost US$2.7 billion” (§46) relating to fauna and deforestation, and that the Nest
Report “…contains no explanation as to why the expert has not included wildlife or forest
resources (with the exception of timber) in his analysis” (§47).
105.1 My task was to present in writing my responses to the questions corresponding to
my area of expertise. In my communications with the Court I have presented myself
as being an expert in conflict minerals.
105.2 While timber and coffee - both included in my analysis - are non-mineral
commodities and therefore ostensibly beyond the expertise of someone specialised
in “conflict minerals”, the process for quantifying production and identifying prices
for non-mineral commodities is similar to that for mineral commodities. For both
types of commodities, there are established international markets and open-source
datasets and other references about production, exports, imports and prices.
105.3 By contrast, the skills and knowledge required to assess the economic value of
wildlife or the cost of deforestation are quite different70. For example, an
assessment of the economic value of fauna or damage from deforestation could
hypothetically require: knowledge of baseline species population surveys; methods
for estimating direct and indirect animal deaths; valuation of ecosystems and
ecological services rendered by people within these ecosystems; or consideration of
value that should accrue to the State from illegal wildlife products such as ivory
(specifically mentioned in The DRC’s Observations in §46 and §48). I do not possess
these skills and knowledge, nor have I led the Court to believe I do.
105.4 In keeping with my declarations to the Court regarding my subject area of
competence, I am not capable of forming an opinion on the value of fauna or
deforestation (beyond the commercial timber trade), and I have no opinion on these
topics.
SECTION: “The acts attributable to Uganda: the expert’s failure to take account of the unlawful
exploitation of natural resources by civilians in Ituri” (§50-§56)
106. The DRC’s Observations states that the TOR relating to quantification and valuation of
natural resources should “… 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” [emphasis added] (§51). Thus, there are two comments:
civilians were excluded from the analysis and any value extracted by them should be defined
as “illegal exploitation”.
70 The Nest Report interpreted “deforestation” as a different activity to “timber production”. The former was
interpreted as destruction of forest irrespective of purpose; the latter was interpreted as the harvesting of
trees in order to produce commercially tradable timber.
35
106.1 The Nest Report (§115) does not explicitly include value extracted by civilians.
Furthermore, estimating value of resources retained by civilians is straightforward: it
is whatever is left after military and administrative personnel extracted what they
did. Table 4.B1 shows these two categories of value for each resource (Table 4.B1 is
based on Tables D4.3 and D4.4 in this report).
Table 4.B1: Ituri: Two categories of value extracted, 1998-2003
A B C
Military/Administrative Personnel Civilian-Retained Value Total
2020 USD % share of C 2020 USD % share of C 2020 USD
Gold 35,359,097 36.4 61,914,898 63.7 97,273,995
Diamonds 1,013,897 28.8 2,512,701 71.3 3,526,598
Coltan 63,038 28.8 156,225 71.3 219,263
Tin 43,258 28.8 107,204 71.3 150,462
Tungsten 13,791 28.8 34,178 71.3 47,969
Timber 2,793,301 10.8 23,022,794 89.2 25,816,095
Coffee 2,046,568 9.9 18,604,977 90.1 20,651,545
Total* $ 41,332,950 28.0 $ 106,352,977 72.0 $ 147,685,927
* Rounding may cause totals in this table, and between this table and the revised Excel calculations
spreadsheet, to differ by ≤ one dollar.
106.2 The DRC is correct that the Nest Report interpreted the estimated value extracted by
military and administrative personnel only as “unlawful exploitation”, and that it did
not define value retained by civilians in this same category. The reason the latter
was excluded was based on an assumption that civilians were voluntarily involved in
the production, trade and export of the seven resources from 1998 to 2003, and
that profits retained by them, after theft and taxes, remained in their control.
106.3 Whether the civilian-retained portion of value identified in Col. B should also be
defined as “illegally exploitation” and therefore part of “damage suffered”, is a
matter for the Court and is made available here for the Court’s consideration.
SECTION: “The estimation of stolen resources based on a ‘proxy tax’” (§58-§61)
107. The DRC’s Observations expresses “…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 (§58)”.
107.1 This issue appears to be a definitional one relating to the term “theft”. It is correct
that the Nest Report describes “theft” as one of three methods used to extract value
from resources (§116) and not the total quantum of a resource estimated to have
entered Uganda. However, the Nest Report makes different estimates of value
available to the Court to assist it in making a determination regarding what
constitutes “theft”.
SECTION: “The way in which Ugandan exports are taken into account” (§62-§63)
108. The concern in this section is not entirely clear. The DRC’s Observations appears to request
clarification about why the Nest Report did not strictly limit estimates of resources
originating in the UAI to the equation:
‘Ugandan Exports minus Ugandan Production equals Resources Originally from the UAI’
36
108.1 If this understanding is correct, the response is that it is possible Uganda imported
and then re-exported some commodities from countries other than the DRC. Such
re-exports would be included in Uganda’s export data even though the commodities
would not have originated in the UAI, nor would they have been produced in
Uganda.
108.2 Ugandan export data also contain gaps for some resources, such as diamonds,
casting doubt on their overall reliability.
108.3 For other resources there are puzzling absences in production data, or production
data exist but export data do not exist for the same year, or production data are less
than production. All such cases cast doubt on the reliability of data for Uganda.
(Minerals such as tantalite, cassiterite and wolframite cannot be used until they
have been smelted into metal, so it is unlikely they were consumed domestically).
108.4 It was therefore necessary to estimate the UAI’s likely production of resources,
independently of Ugandan data, and then assess the quality of both sets before
making estimates of production.
SECTION: “The fixing of the price of resources” (§65-§71)
109. The DRC’s Observations states two reservations about the Nest Report’s pricing of
resources: “first, the significant discounting of prices (by 35 per cent) as compared with the
market rate and, second, the relevant period (1998-2003)” (§66).
109.1 In regard to the discount of 35% to obtain the adopted price - an issue which is
responded to in further detail in Part C of this report - the DRC queried why the
same discount was applied across all resources (§67). It is likely that an adopted
(discounted) price that reasonably represents domestic value added within the UAI
varies from one resource to another. However, there is uncertainty around the
degree of variation. The Nest Report adopted a more cautious approach - and also
one that was methodologically simpler - of a single, conservative, discount rate, to
improve confidence that any estimate of value was, at a minimum, reasonable.
109.2 The DRC’s Observations continues on to 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” (§67).
109.3 It is my opinion that lower resource value within the UAI is not primarily a
“consequence of Uganda’s unlawful armed activities”. The domestic value of a
resource at the producer, small trader or large trader level, for any commodity
where the state does not control production, exchange and prices, is always less
than the international market price; if not, there would be no export market.
110. The DRC’s Observations objects to the Nest Report’s method of using a yearly average for
each year from 1998 to 2003, stating “…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” (§71). It adds that during the period in question the price of gold was historically low.
The DRC proposes that a single average price for each resource for the entire 1998-2003
period should have been adopted.
37
110.1 The “price” referred to in The DRC’s Observations is the international market price.
While it is correct that the gold price was historically low during the relevant period,
market conditions in the UAI did not cause the international market price to be
historically low.
110.2 The DRC also states that from 1998 to 2003 “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” (DRC 2018: §5.57). As
most artisanal producers and small traders are poor, their incentive when they have
a commodity is typically to sell it as soon as possible because of a need for cash,
rather than delay sale (see Johnson & Tegera 2005; Garrett 2008). It is speculative
to suggest that conflicted conditions caused Congolese producers and traders to sell
gold any more quickly between 1998 and 2003 than they otherwise would, and were
therefore unable to take advantage of post-2003 higher prices. It is also always
difficult to predict whether international gold prices will move up or down, so a
producer or trader in 2000, for example, would have no way of knowing the
direction of prices after 2003.
SECTION: “The assessment of the quantities of gold and timber” (§72-§74)
111. The DRC’s Observations raises concerns about the estimated quantities of gold and timber in
the Nest Report.
112. In regard to gold, the DRC’s Observations at §73 raises two concerns about the source of
data used in Line 4 of Table A4.5.1.3 of the Nest Report regarding gold exports from Uganda
for 1998, 1999 and 2000. The concerns are: (1) why ComTrade data were not used when
these were “used for other resources”; and (2) why “the statistics produced by the Ugandan
Government itself, to which the DRC has itself referred in its Memorial” were not used in
Line 4. (The data to which the DRC refers are from the Uganda Ministry for Energy and
Mineral Development).
112.1 In regard to (1), ComTrade data were not used for two reasons. First, there are
significant inconsistencies between these data and data from both the Ugandan
Ministry of Energy and Mineral Development and the Ugandan Bureau of Statistics.
Second, there is an absence in ComTrade of any export or import data involving the
United Arab Emirates or India, even though both countries are known destinations
for gold originating in Uganda (Mthembu-Salter 2015: 7, 12; HRW 2005: 109). These
two factors make it likely that ComTrade data are incomplete and therefore not
reliable.
112.2 In regard to (2), data in Line 4 are, indeed, based on “statistics produced by the
Ugandan Government itself”. That is, Uganda’s Bureau of Statistics as reported in
Uganda’s Counter-Memorial and as is stated in the Nest Report’s note (c) for Line 4
of Table A4.5.1.3.
112.3 The Nest Report used gold export data from Uganda’s Bureau of Statistics rather
than the Ministry for Energy and Mineral Development (MEMD) because in its
Counter-Memorial (§8.63-§8.66), Uganda states that the 1998-2000 data reported in
UNPE (2002a) are, in fact, quantities for which export permission was granted on
paper but not the actual quantities that left the country. Uganda clarified that its
Bureau of Statistics publishes data on quantities actually exported and that it is the
38
most reliable source of data, not the Ministry for Energy and Mineral Development.
This clarification was accepted and incorporated into the Nest Report’s methods.
113. In regard to estimation of quantities of timber, The DRC’s Observations at §74 notes the
Nest Report (§245-§246) states informal sawn wood exports from the DRC to Uganda, Kenya
and Rwanda were 70,000,000 kgs per year for 2010-2011 (from Umunay 2011) and, based
on this figure, an estimated 20% (8,400,000 kgs per year) came from the UAI during from
1998 to 2003. It comments that this paragraph does not explain the method of estimating
“informal production in the UAI at 20 per cent of the total for the DRC”.
113.1 The estimation method used relied on two key factors: the proportion of informal
timber that probably went to Uganda (rather than Kenya or Rwanda); and conditions
in the DRC between 1998 and 2003 that influenced the production and export of
timber. The method is explained in the Nest Report (pp.127-128) and is clarified
here:
113.1.1 Umunay’s (2001) estimate of 70,000,000 kgs in informal exports was the
combined total for Uganda, Kenya and Rwanda. As these data are not
broken down by country, it is impossible to state with total certainty what
percentage of DRC informal timber went to each country. Nevertheless,
based on a deductive reasoning process using the factors drawn from Baker
et al (2003), it was estimated that Uganda’s share was around 60%
(42,000,000 kgs):
113.1.2 Population size: in 2001, the three countries’ combined population was 63
million, of which 49% were in Kenya, 38% in Uganda, and 14% in Rwanda
(World Bank 2003: 14-16).
113.1.3 Profitable markets: Kampala is a large, relatively wealthy, city;
113.1.4 Proximity to the DRC (which reduces transport overheads): Uganda and
Rwanda are immediately adjacent; Kenya is more distant.
113.1.5 The availability of domestic sources of timber: limited in Rwanda; more
abundant in Uganda; less so in Kenya;
113.1.6 Attractive prices for DRC timber compared to local sources (DRC timber was
cheap); and
113.1.7 Reports of the continuation of logging, albeit at a highly constrained rate, in
Ituri, North Kivu and South Kivu immediately adjacent to Uganda and
Rwanda.
113.1.8 In sum, the Ugandan market is large, immediately adjacent (Ituri was a
known source of informal timber exports), DRC timber is cheaper than local
sources, and there was some preference for DRC mahogany over other
timber in Uganda. Kenyan markets are also large, but transactions costs are
higher (further away; an additional border to cross), with no preference for
DRC timber. Rwanda was a significant historic destination, but its population
is much smaller (about one-third of Uganda’s) suggesting lower demand, it
has local plantations, and there was no widespread preferential demand for
DRC timber. Based on these observations, a confident reasonable estimate
of Uganda’s share of DRC informal timber exports is 60% (42,000,000 kgs)
39
113.2 However, Umunay’s data are from 2010-2011 and informal timber production and
exports are likely to have been much lower between 1998 to 2003 due to conflicted
conditions. Rates of informal timber production during this period were estimated
to be 80% lower than of 2010-2011, i.e., 20%. 20% of 42,000,000 kgs is 8,400,000
kgs. This estimate was based on the following factors:
113.2.1 Low rates of timber production in the area corresponding to the UAI are
noted by Baker et al (2003), the most comprehensive review of DRC timber
production during the relevant period. She notes that logging activity in
Orientale Province “has virtually come to a halt. The exception is the Ituri
forest in eastern Orientale, from where timber can be transported by road
to Uganda. The montane and lowland forests of the Kivu provinces still
contain valuable trees. Rebels control these areas and current cutting
intensities are low due to access and security issues” (p.51).
113.2.2 Baker et al (2003) provides data for both logs and boards that illustrate the
general decline in DRC timber exports - a trend that was likely to have
shaped informal timber exports as well. These data are shown in Fig. 4.B1:
Fig. 4.B1: Log and board prices as a percentage of 1996 prices (1996 = 100%)71
Source: Baker et al (2003), Table A-2.2, p.65.
113.2.3 Data for 2002 and 2003 are not available, but Baker et al (2003) comments
that timber exports into Rwanda from the DRC fell “dramatically” in late
2002. She also notes that military and other officials tried to “distance
themselves” from DRC timber after the release of the UNPE 2002 report
(p.67). Given ongoing armed violence by non-state armed groups in the UAI
during this period, and coupled with observations provided by Baker et al, it
is reasonable to assume that timber exports did not increase from 2000-
2001 levels during 2002 and 2003.
113.2.4 In sum, a reasonable confident estimate of informal timber exports during
the 1998 to 2003 period - given conflicted conditions, demand, and
transport constraints - is that it was about 20% of pre-war levels.
71 Baker’s data stop at 2001; data for 1996 are included as a pre-regime change baseline (from President
Mobutu to President Kabila).
0
20
40
60
80
100
120
1996 1997 1998 1999 2000 2001
Percentage of 1996 (1996 = 100%)
Logs Boards
40
C. UGANDA’S OBSERVATIONS
This section contains responses to Uganda’s Observations.
SECTION: “Parts of the Nest Report are Ultra Petita” (§170-§172)
114. Uganda’s Observations states that “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” (§170).
114.1 The Nest Report (see §200) explains the reasons for including the three additional
resources. Whether the Court limits damages to the four resources suggested in the
TOR (gold, diamonds, coltan and timber) is a matter for the Court.
SECTION: “The Estimates Recommended in the Nest Report Are Unfounded and Arbitrary” (§173-
§177)
115. Uganda’s Observations states that the Nest Report uses 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 number” (§174).
116. Uganda’s Observations claims that “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 (fn250)” [emphasis added] (§174).
117. Support for Uganda’s claim at §174 is given in footnote 250, which refers to Uganda’s
Counter-Memorial - see Section I: The DRC’s Claims Are Not Based on Standard Methods for
Proving the Existence and Valuation of the Damages It Claims (§8.4 to 8.15). Section I states
“A survey of relevant practice relating to pillage, plunder or spoliation (fn 1042) indicates
that the method for proving compensation for the exploitation of natural resources entails
several elements…” (§8.5) and goes on to list (1) place, (2) time, (2) determination of at least
approximate amount, and (2) valuation of those resources as these “elements”. Footnote
1042 is provided in support of the claim regarding “relevant practice” connected to these
four elements.
Footnote 1042 states:
Methodology and evidentiary standards for proving pillage, plunder, and spoliation
may be found in a range of jurisprudence before international criminal tribunals and
mixed claims commissions from Nuremberg to the present, including situations
where natural resources have been seized. See, e.g., Polish Forestry, Case No. 7150,
The United Nations War Crimes Commission, History of the United Nations War
Crimes Commission and the Development of the Laws of War (1948), p. 485 (finding
liability of German troops for over-exploitation of forests in occupied Poland). See
generally Michael A. Lundberg, “The Plunder of Natural Resources during War: A
War Crime?”, Georgetown Journal of International Law, Vol. 39 (2007-2008);
Daniëlla Dam-de Jong, International Law and Governance of Natural Resources in
Conflict and Post-Conflict Situations (2015); F. Ortino & N. M. Tabari, “International
Dispute Settlement: The Settlement of Disputes Concerning Natural Resources —
Applicable Law and Standards of Review,” in RESEARCH HANDBOOK ON
41
INTERNATIONAL LAW AND NATURAL RESOURCES (E. Morgera & K. Kulovesi, eds.
2016), p. 496.
118. In fact, none of the four references specified in fn 1042 of Uganda’s Counter-Memorial
provide information about agreed practice or best practice regarding “methodology and
evidentiary standards”.
118.1 In regard to the Polish Forestry case, the United Nations War Crimes Commission
document (UNWCC, 1948: 496) at the place indicated has no mention of place, time
or approximate quantity, nor any discussion of methods of estimating quantity and
value of natural resources illegally exploited during conflict. It simply states that the
ten Germans who had been appointed to “heads of various Departments in the
Forestry Administration in Poland during the German occupation (1939-1944) …
caused the wholesale cutting of Polish timber to an extent far in excess of what was
necessary to preserve the timber resources of the country” and gives a total
estimate of “6,525,000,000 zloty” as the value of the timber illegally exploited.
118.2 Lundberg (2008) discusses under what laws pillaging of natural resources should be
prosecuted and different legal definitions of “pillage” and “plunder”, but he has no
discussion regarding the best methods to estimate quantity and value.
118.3 Dam-de Jong (2015) analyses methods to prevent the production and trade of
conflict minerals, but she does not discuss the best methods to define quantity and
value.
118.4 Ortino and Tabari’s chapter (2016) discusses under what laws international
investment disputes relating to natural resources should be settled and standards of
review for such matters, neither of which is relevant to this case. There is no
discussion of best methods to define quantity and value.
119. However, methods similar to those of the Nest Report have been used in other cases:
119.1 The Liberian Truth and Reconciliation Commission details illegal production and
export of timber from 1999 to 2003 during the conflict in that country, using export
data on quantity and value of the port of Buchanan (2009: §29–33). Specific
evidence regarding the time and place of timber cutting are not given. Furthermore,
although timber concession locations were known, estimates of production are not
based on concession-level data. The Nest Report uses a method of estimation similar
to that used by Liberia’s Truth and Reconciliation Commission, except that the
former largely bases its estimates of quantity and value from import partners, not
export data as used by Liberia.
119.2 The U.S. Military Tribunal at Nuremberg accepted approximate estimates. The
Tribunal found Paul Pleiger, the manager of Mining and Steel Works East Inc. guilty
of pillaging coal from Polish mines and quantified the amount using estimates from
the manager of the Polish coal mines, Hans Werner von Dewall (Nuernberg Military
Tribunal, 1949: 741). Von Dewall gave detailed estimates for different mines
(presumably based on mine records), but he also estimates “…that of these amounts
two-thirds went to Germany” [emphasis added]. That is, von Dewall made an
approximate estimate - “two-thirds” - of the quantity of a resource (coal) illegally
taken from one country into another based on his knowledge about coal production,
but not based on the timing or quantities of specific exports.
42
119.3 It is noted that the TOR for the Nest Report also requests an “approximate quantity”
of natural resources (see Appendix 4.1: Terms of Reference, Parts (a) and (c)).
SECTION: “Quantity of Resources Produced and Their Geographic Distribution” (§178-§181)
120. Uganda’s Observations states that the Nest Report relied on the ‘Exports minus Domestic
Production’ model, which “…plainly contradicts the Court’s express finding in the 2005
Judgment 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” (§179).
120.1 As explained earlier in the response to The DRC’s Observations under the section
titled “The way in which Ugandan exports are taken into account”, the Nest Report
does not strictly rely on this model. Nevertheless, the application - or lack of strict
application - of this model has no connection to Uganda having, or not having, a
government policy directed at either exploitation of natural resources or that
military intervention was carried out for this purpose. The Nest Report makes no
such suggestion.
121. Uganda’s Observations continues on to state that “Mr Nest makes arbitrary assumptions to
estimate the proportions of resources within the UAI and Ituri” and “…assumes, for
example, that ‘around 45% of gold production in UAI probably came from Ituri, and around
55% from non-Ituri’ [fn265: §254]’ 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” (§180).
121.1 This quote regarding assumptions about gold is immediately preceded by two
paragraphs in the Nest Report (§252-§253) that reference eight documents
containing eye-witness reports of gold mines in specific locations and statements by
gold producers and traders about the origins of their gold. Based on these
documents, an approximate estimate was made of proportions originating in Ituri v.
non-Ituri.
121.2 The other paragraphs in the Nest Report noted by Uganda’s Observations fn 266 -
§257 (for diamonds), §260 (coltan), §262 (tin), §264 (tungsten), §267 (timber), and
§270 (coffee) - are also immediately preceded by explanatory paragraphs.
121.3 In regard to diamonds, coltan, tin and tungsten, there was most likely zero
production in Ituri72. Describing production in Ituri as ‘zero’ is not “arbitrary”.
Furthermore, it follows logically that if a resource was produced in the UAI and zero
originated in Ituri, then it came from outside Ituri. Again, this is not arbitrary.
SECTION: “Annual Average Prices of Resources” (§182-§187)
122. Uganda’s Observations raises objections to the Nest Report’s method of calculating prices,
stating “The measure of any loss to the DRC from the illegal exploitation of mineral
72 Five per cent of UAI’s share of these resources was allocated to Ituri for each of these resources because of
reported transit trade (not because of production).
43
resources is not the commercial value of the minerals on the open market, as Mr Nest
erroneously assumes” (§184).
122.1 The Nest Report does not assume this. The TOR required an estimation of total
quantity of production within the UAI and then a valuation of this quantity. The
‘discounted’ adopted price - 65% of the international market price - was explicitly
used in order to avoid valuing the quantum of production at “the commercial value
of the minerals on the open market”.
123. Uganda’s Observations at §184 objects to this approach, stating that the 35% discount is
“entirely arbitrary”. This is incorrect.
123.1 Prices received by producers, small traders and large traders ‘upstream’ in the value
chain for any commodity are always less than the final international market price. It
is therefore reasonable to reduce the international market price to the probable
average price within the DRC’s domestic value chain for each resource. The relevant
question is What is a reasonable discount?
123.2 The total value of a resource grows - ‘snowballs’ - the further it travels from the
point of production towards the point of export, because at each point of exchange
someone adds their profit margin (taking into account their costs). This means that
obtaining a single adopted price (as a percentage of the international price) that
represents value for the resource along the entire chain should be near the median
point of all value (where accumulated value lies equally on either side). A
discounted price too close to the international price will over-estimate value; a
discounted price too close to producers will under-estimate value.
123.3 In his study of coltan production and trade in eastern DRC in late 2000, Martineau
(2003) compiled data on prices when the international market price was $119 per
kg73. The study focused on the percentage of profit (as a percentage of the
international market price) accruing to different stages of the value chain which they
divided into producers, small traders, large traders, and wholesalers (who received
the international market price). These percentages are shown in Fig. 4.C1 along
with the Nest Report’s adopted (discounted) price of 65% of the international
market price.
Fig. 4.C1: Stages of coltan value chain: percentage of international market price
Source: Martineau (2003), La route commerciale du coltan: une enquête, Table 7.
123.4 When transposed onto Martineau’s (2003) coltan price points within the DRC value
chain as shown in Fig. 4.C1, the Nest Report’s adopted price of 65% of the
international price minus a discount of 35%, is shown to be a reasonable
73 Fig. 4.C1 attributes to producers, small traders and large traders an equal share of domestic taxes/fees
(which totaled 40% of the international market price of $119 per kg).
44
conservative estimate of the median point where total accumulated value of a
resource is likely to be equally distributed either side.
123.5 The Nest Report (see §85-§113) also identifies price observations from sources
independently of the key data source used to obtain the base price (the
international market price) for each resource. Fig. 4.C2 below has converted these
independent observations into a percentage of the base price, then grouped them
by producer, small trader or large trader. Most observations are for coltan, coffee
and timber.
123.6 Note, Fig. 4.C2 is for illustrative purposes; the observations are not comprehensive
for each resource across the entire value chain. What it illustrates is how the value
of a resource at different points of a value chain varies from the international
market price, and why an adopted (discounted) price should not be a direct function
of either the producer, small trader or large trader price, but needs to represent
median value across the entire chain.
Fig. 4.C2: Price observations74 from DRC as a percentage of Nest Report’s base price*
* Base Price = International market price = 100%
123.7 In sum, rather than being “entirely arbitrary”, estimation of the adopted price was
informed by price data collected by researchers and international organisations, as
well as knowledge of how value grows as a resource is traded closer and closer to
the international market. It remains my opinion that a 35% discount from
international market prices across the time period (1998-2003) is a reasonable
conservative estimate, as was the process used to arrive at this figure.
124. As noted in the Introduction to this report, Uganda’s Observations states that “illegal
exploitation” of mineral resources should be defined as “the net loss in value to the [DRC]
State from the exploitation of those resources” (§184). Two methods are suggested to
calculate “net loss” defined in this manner: one when the state owns the mine, and one
when a private party owned the mine.
74 Sources: obs. 1-3, 5-7, and 9 (coffee): ICO (2020); obs. 4, 13-14 (coltan): Martineau (2003); ob. 8 (coltan):
Redmond (2001); ob. 11 (coltan): Tegera, Johnson and Mikolo (2002); ob. 12 (tin) Johnson and Tegera (2005);
obs 18 and 20 (timber): UN ComTrade (2020); ob. 19 and 23 (coltan): IPIS (2002); ob. 21 (coltan) UNPE (2002b);
ob. 22 (timber): Djiré (2003); obs 24-27, 29 and 31 (timber): Baker (2003); ob. 28 (gold): HRW (2005); ob.30
(diamonds): Johnson and Tegera (2005).
45
124.1 Exploitation of resources by state-owned companies in the UAI had ceased prior to
the 1998-2003 period. Exploitation was therefore by private parties only.
124.2 Uganda’s Observations proposes in regard to exploitation by private parties that
“the DRC’s loss would be limited to foregone tax income, royalties or other fees
payable to the State” (§184). This resembles the method used by the Nest Report to
calculate “illegal exploitation” (see §115-§154) - although the entire quantum of
each resource was also valued and made available to the Court for its
determination.
124.3 The amount valued by the Nest Report as “illegal exploitation” estimates the
probable range (percentage) of taxes and fees then estimates how much value was
extracted using these tax rates. In peacetime these taxes and fees would be paid to
the State, but from 1998-2003 they were paid to persons who were not agents of
the DRC State. I.e., these amounts constituted foregone State income.
125. Uganda’s Observations final comment on prices is at §186, which notes the Nest Report
adjusts the adopted prices to 2020 USD by ‘inflating’ them using a standard rate (inflators are
listed in the final line of Table 4.2 at §274), but that the inflators “appear to have been selected
at random. Mr Nest nowhere explains on what basis he purports to derive these ‘inflators’”.
125.1 It is correct that Table 4.2 does not note the origin of the inflators. However, note (e)
of Table A4.5.1.5 (see Nest Report, p.115) states the rates used to get 2020 USD were
“…taken from US Inflation Calculator, based on US Government CPI data published on
October 13, 2020, which uses US Labor Dept’s Bureau of Labor Statistics data:
https://www.usinflationcalculator.com.” This information is subsequently repeated
six times in notes (c) of Tables A4.5.2.2 (diamonds), A4.5.3.2 (coltan), A4.5.4.2 (tin),
A4.5.5.2 (tungsten), A4.5.6.2 (timber), and A4.5.7.2 (coffee).
SECTION: “Proxy Taxes for Estimate the Exploitation Value” (§188-§200)
126. Uganda’s Observations states in regard to tax rates described in Table 4.5, which is based on
Appendix 4 of the Nest Report, that “…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” (§192).
126.1 The Nest Report does not claim that the Ugandan Government formally set or levied
taxes. Under the TOR, the task was to identify methods of exploitation and value
extracted using those methods within the UAI. In Ituri, who or which organisation
created or levied those taxes was not relevant for the Nest Report’s estimations.
Outside Ituri, proxy rates of tax were estimated to identify probable value exploited
by some UPDF personnel.
127. Uganda’s Observations states “…more than ten references in [Table 4.5] refer to dates that
fall outside the temporal scope that is limited to August 1998-May 2003” (§193); that “…many
references relate to areas outside what Mr Nest calls the ‘Ugandan area of influence’” (§194);
and that the data come “primarily from a single source - publications by Johnson and Tegera”
(§196).
127.1 Table 4.5 contains 44 separate references to a tax, levy or payment, from 12 separate
source documents. A majority of references (55%) are within the 1998-2003 period.
46
127.2 In regard to Johnson and Tegera (see §196), they have publications from 2005 and
200775. The 2007 publication is the source for 13 out of 44 references. If Johnson and
Tegera (2007) were removed, this would leave 31 references of which 61% fall within
the 1998-2003 period. However, it is my opinion that just because numerous data
come from a single reputable source is not grounds to dismiss that source.
127.3 In regard to references being from areas outside the UAI (see §194), tax rates across
territory not held by the DRC Government (including the UAI) were determined by
RCD-Goma from August 1998 to March 1999. It is only after March 1999 when RCDGoma
split into various factions, that tax rates began to evolve from this baseline in
areas under each faction’s control. While some change in tax rates from March 1999
is to be expected, differences are unlikely to be too large because this would cause a
shift in trade from area to another, depriving military and administrative personnel of
opportunities to extract value. As noted by the Nest Report (§136.2), UNPE (2001b:
§44) states “The high combined taxes imposed by the RCD-Goma rebel group and RPA
ultimately resulted in diamonds mined in this area being redirected to Kampala,
where lower tax rates prevail”. That is, total combined tax (including taxes on fees,
licences and value) within the UAI were most likely lower than in the Rwandan Area
of Influence.
128. Uganda’s Observations from §195 to §200 objects to the adopted tax rate of 20% for
diamonds (compared to the reference rate of 15% shown in the Nest Report’s Table 4.5) and
of 8% for timber (compared to the reference rate of 6% shown in Table 4.5).
128.1 For both diamonds and timber the reference tax rates were for export taxes only.
Source documents make numerous references to the existence of taxes and levies in
addition to export taxes. For example, UNPE (2002a) reports “licencing fees” for
commercial operators in urban centres (§101) and licences “for trading in agricultural
products” (§89); both UNPE (2002a: §108) and Le Billon and Hocquard (2007: 90)
report licences and fees for coltan; and the Porter Commission (2002) reports a charge
on artisanal gold miners to enter the mine (§109).
128.2 The probable value extracted from both diamonds and timber is highly likely to have
been more than from export-only taxes. The Nest Report adjusted tax rates upwards
to 20% (for diamonds) and 8% (for timber) to reflect likely additional taxes and, in the
case of diamonds, to reflect likely comparable tax rates to other minerals.
D. Revision to Estimated Quantity of Gold Production
129. In preparing this response an error was identified in the estimation of quantity and valuation
data for gold. This section addresses this error.
130. The error concerns estimated Ugandan formal exports of gold. Note (c) of Table A4.5.1.3 of
the Nest Report stated that data at L4 (“Formal exports”) contained data from Table 8.2 of
Uganda’s Counter-Memorial (§8.65). In fact, the data at L4 of Table A4.5.1.3 are only based
75 The Nest Report erroneously attributed the publication noted as ‘Johnson and Tegera (2002)’. It should have
been attributed to ‘Tegera, Mikolo and Johnson (2002)’ as contained in this report’s List of References.
47
on Table 8.2 for 1998 and 1999, whereas data for 2000-2003 are based on Table 8.1 of
Uganda’s Counter-Memorial (§8.64).
130.1 Uganda’s Counter-Memorial explains that Table 8.1 data were updated by the Bureau
of Statistics and the updated data are in Table 8.2. The latter should have been used
in the Nest Report for all years from 1998 to 2003. The two datasets are shown in
Table 4.D1.1 (full years) and Table 4.D1.2 (five months only for 1998 and 2003).
Table 4.D1.1: Uganda Counter-Memorial: gold exports (kgs): Tables 8.1 and 8.2 (Full Year)
Full year: 1998 1999 2000 2001 2002 2003
Table 8.1 (old) 665.00 4,231.00 5,297.00 6,161.00 7,117.00 3,478.00
Table 8.2 (updated) 2,247.00 4,231.00 5,926.00 6,158.00 7,086.00 3,275.00
Source: Uganda Bureau of Statistics as reported by Uganda (2018), pp.366-367.
Table 4.D1.2: Uganda Counter-Memorial: gold exports (kgs): Tables 8.1 and 8.2 (1998 and 2003 at
five months only)
1998* 1999 2000 2001 2002 2003*
Table 8.1 (old) 277.08 4,231.00 5,297.00 6,161.00 7,117.00 1,449.17
Table 8.2 (updated) 936.25 4,231.00 5,926.00 6,158.00 7,086.00 1,364.58
Source: Uganda Bureau of Statistics as reported by Uganda (2018), pp.366-367.
131. The updated data from Uganda’s Counter-Memorial Table 8.2 need to replace those in the
Nest Report’s L4 of Table A4.5.1.3, and calculations in subsequent tables based on these data
also need to be adjusted. These adjustments to quantities require further revision to the
overall estimated quantity and value of gold produced in the UAI (both Ituri and non-Ituri).
131.1 Calculation methods are the same as the Nest Report.
131.2 Revised tables showing calculations of value (as found in Appendix 4.5 of the Nest
Report) are at Appendix 4.3 of this report.
132. Below are all the tables from the Nest Report adapted where necessary to take into account
the revised estimate for gold from the UAI. If a table required no revision, it is still shown
here but with the comment “no change to this table”.
132.1 Data that have been adjusted are in bold red font.
Table D4.1 Est. of quantity of resources produced, 1998-2003 - Revised from Nest Report (§224)
* Note: only UAI data included in this version - no references to DRC totals.
Ituri Non-Ituri Total UAI
Est. Quantity % of UAI Est. Quantity % of UAI Est. Quantity
Gold, kgs 10,681 45 13,054 55 23,735
Diamonds, carats 213,031 5 4,047,596 95 4,260,627
Coltan, kgs 4,204 5 79,878 95 84,082
Tin, kgs 44,521 5 845,907 95 890,428
Tungsten, kgs 16,541 5 314,284 95 330,825
Timber, kgs 44,684,690 50 44,684,690 50 89,369,380
Coffee, kgs 13,133,802 30 30,645,539 70 43,779,341
48
Table D4.2: Annual average resource prices, by year - Table at §304; no change to this table.
* Price is per kilogram except for diamonds, which is per carat
1998 1999 2000 2001 2002 2003
Gold base price 9,455.20 8,956.22 8,973.26 8,714.13 9,956.43 11,680.99
Adopted price (35% less) 6,145.88 5,821.54 5,832.62 5,664.18 6,471.68 7,592.64
Diamond base price 18.59 12.55 14.34 18.79 19.33 27.43
Adopted price (35% less) 12.09 8.16 9.32 12.21 12.56 17.83
Niobium-Tantalite
base price 12.98 47.90 114.62 86.73 47.24 14.11
Adopted price (35% less) 8.44 31.14 74.50 55.07 30.71 9.17
Cassiterite base price 3.27 2.31 2.82 3.12 3.10 6.35
Adopted price (35% less) 2.12 1.50 1.83 2.03 2.02 4.12
Wolframite base price 2.48 2.00 3.49 3.34 2.87 3.66
Adopted price (35% less) 1.61 1.30 2.27 2.17 1.86 2.38
Timber base price 0.67 0.67 0.52 0.62 0.52 0.64
Adopted price (35% less) 0.44 0.44 0.35 0.40 0.34 0.42
Coffee base price 2.04 1.71 1.42 1.18 1.04 1.06
Adopted price (35% less) 1.33 1.11 0.92 0.77 0.68 0.69
Inflator to est. 2020 USD
(adopted for all)
x 1.60 x 1.56 x 1.51 x 1.47 x 1.45 x 1.41
Table D4.3: Resource prod. in 2020 USD before value exploited - Revised from Nest Report (§304)
Ituri Non-Ituri Total UAI
USD % of UAI USD % of UAI USD
Gold 97,273,995 45 118,890,439 55 216,164,434
Diamonds 3,526,598 5 67,005,369 95 70,531,967
Coltan 219,263 5 4,165,988 95 4,385,250
Tin 150,462 5 2,858,783 95 3,009,245
Tungsten 47,969 5 911,411 95 959,380
Timber 25,816,095 50 25,816,095 50 51,632,189
Coffee 20,651,545 30 48,186,938 70 68,838,483
Total* $ 147,685,927 $ 267,835,023 $ 415,520,948
* Rounding may cause totals in this table, and between this table and the revised Excel calculations
spreadsheet, to differ by ≤ one dollar.
Table D4.4: Est. value exploited by personnel: UAI, Ituri & non-Ituri, Revised from Corrigenda
(§305)
Ituri Non-Ituri Total UAI
2020 USD % share 2020 USD % share 2020 USD % share
Gold 35,359,097.3 85.5 10,533,692.9 60.1 45,892,790.2 78.0
Diamonds 1,013,897.0 2.5 5,025,402.6 28.7 6,039,299.7 10.3
Coltan 63,038.0 0.2 312,449.1 1.8 375,487.0 0.6
Tin 43,257.9 0.1 214,408.7 1.2 257,666.6 0.4
Tungsten 13,791.1 0.0 68,355.8 0.4 82,146.9 0.1
Timber 2,793,301.4 6.8 645,402.4 3.7 3,438,703.8 5.8
Coffee 2,046,568.1 5.0 722,804.1 4.1 2,769,372.2 4.7
Total* 41,332,950.8 100.1 17,522,515.6 100.0 58,855,466.4 99.9
* Rounding may cause totals in this table, and between this table and the revised Excel calculations
spreadsheet, to differ by ≤ one dollar.
49
Table D4.5: Est. of proxy taxes on theft and fees & licences, and tax on profits as percentages -
Table at §119; no change to this table.
A. Proxy Tax:
Theft
B. Proxy Tax:
Fees and Licences
C. Tax on Value:
Sales and Exports
Total Tax Rate
(A+B+C)
Ituri Non-Ituri Ituri Non-Ituri Ituri Non-Ituri Ituri Non-Ituri
Gold 5.0 2.0 5.0 2.0 28.0 5.0 38.0 9.0
Diamonds 5.0 0.5 5.0 2.0 20.0 5.0 30.0 7.5
Coltan 5.0 0.5 5.0 2.0 20.0 5.0 30.0 7.5
Tin 5.0 0.5 5.0 2.0 20.0 5.0 30.0 7.5
Tungsten 5.0 0.5 5.0 2.0 20.0 5.0 30.0 8.0
Timber 2.0 0.5 1.0 1.0 8.0 1.0 11.0 2.5
Coffee 1.0 0.0 1.0 0.5 8.0 1.0 10.0 2.0
Table D4.6: Est. proxy tax rate for theft - Table at §124; no change to this table.
Resource Ituri (%) Non-Ituri (%)
Gold 5.0 2.0
Diamonds 5.0 0.5
Coltan 5.0 0.5
Tin 5.0 0.5
Tungsten 5.0 0.5
Timber 2.0 0.5
Coffee 1.0 0.0
Table D4.7: Est. proxy tax rate for value of fees and licences - Table at §143; no change to this
table.
Resource Ituri (%) Non-Ituri (%)
Gold 5.0 2.0
Diamonds 5.0 2.0
Coltan 5.0 2.0
Tin 5.0 2.0
Tungsten 5.0 2.0
Timber 1.0 1.0
Coffee 1.0 0.5
Table D4.8: Tax range and adopted tax on value - Table at §147; no change to this table.
Resource Tax Range Reported (%)
(See Annex 4)
Adopted Taxes on Value
Ituri (%) Non-Ituri (%)
Gold 28-40 28.0 5.0
Diamonds 4-15 20.0 5.0
Coltan 5-40 20.0 5.0
Tin 5-50 20.0 5.0
Tungsten n/a 20.0 5.0
Timber 6 8.0 1.0
Coffee 7 8.0 1.0
50
Table D4.9: Value of exploitation disaggregated by method, Ituri and non-Ituri, 2020 USD - Revised
from Nest Report (§154)
Theft Fees & Licences Tax of Value Total
Ituri Non-Ituri Ituri Non-Ituri Ituri Non-Ituri Ituri Non-Ituri
Gold 4,863,700 2,377,809 4,620,515 2,330,253 25,874,883 5,825,631 35,359,097.3 10,533,692.9
Diamonds 176,330 335,027 167,513 1,340,107 670,054 3,350,268 1,013,897.0 5,025,402.6
Coltan 10,963 20,830 10,415 83,320 41,660 208,299 63,038.0 312,449.1
Tin 7,523 14,294 7,147 57,176 28,588 142,939 43,257.9 214,408.7
Tungsten 2,398 4,557 2,279 18,228 9,114 45,571 13,791.1 68,355.8
Timber 516,322 129,080 252,998 258,161 2,023,982 258,161 2,793,301.4 645,402.4
Coffee 206,515 0 204,450 240,935 1,635,602 481,869 2,046,568.1 722,804.1
Total* 5,783,751 2,881,597 5,265,317 4,328,180 30,283,883 10,312,738 41,332,950.8 17,522,515.6
* Rounding may cause totals in this table, and between this table and the revised Excel calculations
spreadsheet, to differ by ≤ one dollar.
51
Appendix 4.1: Terms of Reference
The ICJ provided the following terms of reference (TOR) to guide this report:
(1) An expert opinion shall be obtained, which will be entrusted to four independent experts
appointed by Order of the Court after hearing the Parties.
(2) For 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, the Court continues to examine the full range of
claims and defences to the heads of damage claimed by the Applicant. However, with respect to
some of these heads of damage, namely, loss of human life, loss of natural resources and property
damage, the Court considers it necessary to arrange for an expert opinion, in accordance with
Article 67, paragraph 1, of its Rules. The terms of reference for the experts referred to in point (1)
above will be 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?
(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?
(3) The references to the administrative divisions on the territory of the Democratic Republic of the
Congo mentioned above should be understood as those that existed in the Democratic Republic of
the Congo during the relevant period, i.e. between 6 August 1998 and 2 June 2003.
52
Appendix 4.2: List of References
Baker, M., R. Clausen, M. N’Goma, T. Roule, and J. Thomson, 2003. “Democratic Republic of Congo”,
Volume 3 (pp.7–115) in Conflict timber, dimensions of the problem in Asia and Africa. Report
submitted to USAID. Burlington, Vermont: ARD.
Dam-de Jong, Daniëlla, 2015. International Law and Governance of Natural Resources in Conflict
and Post-Conflict Situations (London: Cambridge University Press)
Democratic Republic of the Congo, 2021. 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.
Democratic Republic of the Congo, 2018. Case Concerning Armed Activities on the Territory of the
Congo (Democratic Republic of the Congo v. Uganda). Second Phase. Question of Reparation.
Counter-Memorial of the Democratic Republic of the Congo. February 2018.
Djiré, A. 2003. Le secteur informel du bois d’oeuvre. Rapport d’appui à la revue
du secteur forestier en RDC–Rapport technique. Montpellier : Centre
de Coopération Internationale en Recherche Agronomique pour le Développement (CIRAD).
Garrett, N., 2008. Artisanal Cassiterite Mining and Trade in North Kivu. Implications for Poverty
Reduction and Security. Communities and Artisanal & Small-scale Mining Initiative (CASM).
Washington DC: World Bank.
HRW (Human Rights Watch), 2005. The Curse of Gold: Democratic Republic of Congo. New York.
https://www.hrw.org/sites/default/files/reports/drc05050.pdf
ICO (International Coffee Organization), 2020. Historical Data on the Global Coffee Trade.
http://www.ico.org/newhistorical.asp
IPIS (International Peace Information Service), 2002. Supporting the War Economy in the DRC:
European Companies and the Coltan Trade: Five Case Studies. (Eds) M-O. Herman, D. Broederlijk
and P. Vermaerke. Antwerp.
Johnson, Dominic and Aloys Tegera, 2007. Rules for Sale: formal and informal cross-border trade in eastern
DRC. Goma: Pole Institute.
-----, 2005. Digging Deeper: How the DR Congo’s mining policy is failing the country. Goma: Pole Institute.
http://archive.niza.nl/docs/200603061556507567.pdf
Le Billon, P. and C. Hocquard, 2007. Filières industrielles et conflits armés: le cas du tantale dans la
région des Grands Lacs. Écologie & Politique 34: 83-92.
Liberia, Republic of, 2009. Truth and Reconciliation Commission, Volume III: Appendices, Title III:
Economic Crimes and the Conflict, Exploitation and Abuse (Monrovia: Liberia)
http://www.trcofliberia.org/resources/reports/final/volume-three-3layou…
Lundberg, Michael A., 2008. The plunder of natural resources during war: a war crime (?).
Georgetown Journal of International Law 39(3); 495-525.
Martineau, Patrice, 2003. La route commerciale du coltan: une enquête. Groupe de recherche sur
les activités minières en Afrique, Faculté de science politique et de droit, Université de Québec,
Montréal. https://www.ieim.uqam.ca/IMG/pdf/Martineaucoltan.pdf
53
Mthembu-Salter, G., 2015. “Baseline study four: Gold trading and export in Kampala, Uganda. 9th
Multi-stakeholder forum on responsible mineral supply chains”, 4-6 May 2015. Paris, France.
https://www.oecd.org/daf/inv/mne/Gold-Baseline-Study-4.pdf
Nuernberg Military Tribunal, 1949. Trials of War Criminals Before the Nuernberg Military Tribunals,
Vol. XIV “The Ministries Case”. https://www.loc.gov/rr/frd/MilitaryLaw/pdf/NTwar-criminalsVol-
XIV.pdf
Ortino, Federico and Nima Mersadi Tabari, 2016. “International Dispute Settlement: The Settlement
of Disputes Concerning Natural Resources — Applicable Law and Standards of Review” Ch.24 in
Research Handbook on International Law and Natural Resources, E. Morgera & K. Kulovesi, eds
(London: Edward Elgar Publishing): 496-516.
Redmond, Ian, 2001. Coltan Boom. Gorilla Bust. The impact of coltan mining on gorillas and other
wildlife in Eastern DR Congo. Atlanta: Dian Fossey Gorilla Fund and Horsham, UK: Born Free
Foundation.
Tegera, Aloys, Sophie Mikolo, and Dominic Johnson, 2002. The Coltan Phenomenon. How a rare
mineral has changed the life of the population of war-torn North Kivu province in the East of the
Democratic Republic of Congo. Goma: Pole Institute.
Uganda, 2021. Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic
of the Congo v. Uganda). Second Phase. Question of Reparation. Observations on the Experts
Report dated 19 December 2020. 15 February 2021.
-----, 2018. Case Concerning Armed Activities on the Territory of the Congo. Democratic Republic of
the Congo v. Uganda. Counter-Memorial of Uganda on Reparations. Volume 1. 6 February 2018.
Umunay, Peter, 2011. Illegal Logging in Congo Basin - Ituri Case Study. Global Forest Atlas.
UN ComTrade, 2020. Export and Import data website: UNPE (UN Panel of Experts), 2002a. Report of
the UN Panel of Experts on the Illegal Exploitation of Natural Resources in the DR Congo. October,
New York. (S/2002/1146)
UNWCC (United Nations War Crimes Commission), 1948. The Polish Forestry Case No. 7150. History
of the United Nations War Crimes Commission and the Development of the Laws of War 485, 496
(London: His Majesty’s Stationery Office).
UNPE (UN Panel of Experts), 2002a. Report of the UN Panel of Experts on the Illegal Exploitation of
Natural Resources in the DR Congo. October, New York. (S/2002/1146)
-----, 2002b. Interim Report of the UN Panel of Experts on the Illegal Exploitation of Natural Resources
in the DR Congo. October, New York. (S/2002/565)
-----, 2001a. Report of the UN Panel of Experts on the Illegal Exploitation of Natural Resources in the
DR Congo. April, New York. (A/2001/357)
-----, 2001b. Addendum to the Report of the UN Panel of Experts on the Illegal Exploitation of Natural
Resources in the DR Congo. November, New York. (S/2001/1072)
World Bank, 2003. World Development Indicators.
https://openknowledge.worldbank.org/handle/10986/13920
54
Appendix 4.3: Revised Tables for Gold
Note: there are no changes to Table A5.1.1 and Table A5.1.2 from the Nest Report.
A5.1 Gold
Table A5.1.1: Quantity, kilograms 1998* 1999 2000 (a) 2001 2002 2003* Total
*1998 and 2003 five months only (Jan-Jun) (Jul-Dec)
D. R. Congo - Production
1 Formal production (b) 62.90 207.00 26.00 26.00 6,100.00 7,600.00 1,708.33 15,730.23
2 Assume 80% of L1 from non-
Government area (c) 50.33 165.60 20.80 20.80 4,880.00 6,080.00 1,366.67 12,584.20
3 75% of L2 in UAI to June 2000;
70% in UAI from July 2000 (d)
37.75 124.20 15.60
14.56 3,416.00 4,256.00 956.67 8,820.78
4 Add est. national artisanal
production (e) 2,083.33 5,000.00 2,500.00 2,500.00 5,000.00 5,000.00 2,083.33 24,166.66
5 80% of L4 in non-Govt held 1,666.67 4,000.00 2,000.00 2,000.00 4,000.00 4,000.00 1,666.67 19,333.34
6 75% of L6 in UAI to June 2000;
70% in UAI from July 2000 (d) 1,250.00 3,000.00 1,500.00 1,400.00 2,800.00 2,800.00 1,166.67 13,916.67
7 Total Est. UAI Production
(R3 + R6) 1,287.75 3,124.20 1,515.60 1,414.56 6,216.00 7,056.00 2,123.33 22,737.44
a. 2000 is split into two six-month periods to reflect Uganda’s loss of influence in Kisangani after June 2000. Loss of influence reduced the ability of UPDF personnel to
extract value from gold in Kisangani.
b. Based on USGS data (most recent Yearbook)
c. See text for explanation.
d. Est. UAI share was 75% of non-government held area to June 2000, then 70% from July 2000.
e. See text for explanation. Base estimate used was 5,000 kg per year for the DRC revised accordingly for non-government-held area, then UAI.
55
Table A5.1.2: DRC Congo gold exports 1998* 1999 2000 (a) 2001 2002 2003* Total
*1998 and 2003 five months only (Jan-Jun) (Jul-Dec)
D. R. Congo - Exports
1 Formal exports (b) 419.58 241.56 412.50 412.50 887.00 527.00 1.25 2,901.39
2 Assume 80% of L1 from non-Govt
area (c) 335.67 193.25 330.00 330.00 709.60 421.60 1.00 2,321.12
3 Est. formal exports from UAI:
75% of L2 to June 2000; 70%
from July 2000 (d)
251.75 144.94 247.50 231.00 496.72 295.12 0.70 1,667.73
4 Est. UAI production from L7,
Table A5.1.1
1,287.75 3,124.20 1,515.60
1,414.56 6,216.00 7,056.00 2,123.33 22,737.44
5 UAI production minus exports
(L4 - L3), i.e., smuggled gold. 1,036.00 2,979.26 1,268.10 1,183.56 5,719.28 6,760.88 2,122.63 22,069.71
a. 2000 is split into two six month periods to reflect Uganda’s loss of influence in Kisangani after June 2000.
b. Based on ComTrade import data for “All” reporters.
c. See text for explanation.
d. Est. UAI share was 75% of total non-government held area to June 2000, then 70% from July 2000.
56
Table A5.1.3: Uganda gold production
and exports
*1998 and 2003 five months only
1998* 1999 2000 2001 2002 2003* Total
Uganda - Production and Exports
1 Formal production (a) 3.33 5.00 56.00 0.00 3.00 16.67 84.00
2 Est. artisanal production (b) 416.67 1,000.00 1,000.00 1,000.00 1,000.00 416.67 4,833.34
3 Est. total production (L1 + L2) 420.00 1,005.00 1,056.00 1,000.00 1,003.00 1,040.00 5,524.00
4 Formal exports (c) 936.25 4,231.00 5,926.00 6,158.00 7,086.00 1,364.58 25,701.83
5 Exports surplus to production:
assume from UAI (L4 - L3) (d) 516.25 3,226.00 4,870.00 5,158.00 6,083.00 324.58 20,177.83
a. Based on USGS data (most recent Yearbook)
b. See text for explanation of 1,000 kg estimate per year.
c. Based on Uganda Bureau of Statistics data in Table 8.2 in Case Concerning Armed Activities on the Territory of the Congo. Democratic Republic of the Congo v. Uganda.
Counter-Memorial of Uganda on Reparations. Volume 1. 6 February 2018 (Uganda).
d. Uganda exports excess to production assumed to be UAI-origin because during the 1998-2003 period: cross-border trade in gold between Uganda and either Rwanda
or Burundi unlikely; Kenya produced and exported gold, but no reason for traders to bring DRC gold to export from Kenya if possible from Uganda; Central African
Republic production unlikely to have transited through the DRC to Uganda; and Sudanese production unlikely to have been exported via Uganda.
Table A5.1.4: UAI smuggled gold v. Ugandan
export ‘surplus’.
*1998 and 2003 5mth only
1998* 1999 2000 2001 2002 2003* Total
Comparison of UAI smuggled gold v. Uganda exports surplus to production (a)
1 UAI smuggled gold (Table A5.1.2: L5) 1,036.00 2,979.26 2,451.66 5,719.28 6,760.88 2,122.63 22,069.71
2 Ugandan exports surplus to production
(Table A5.1.3: L5) 516.25 3,226.00 4,870.00 5,158.00 6,083.00 324.58 20,177.83
3 Take highest yearly est. from L1 or L2 (b) 1,036.00
(from DRC)
3,226.00
(from Ug.)
4,870.00
(from Ug.)
5,719.28
(from DRC)
6,760.88
(from DRC)
2,122.63
(from DRC) 23,737.79
4 Est. quantity produced in UAI: 1,036.00 3,226.00 4,870.00 5,719.28 6,760.88 2,122.63 23,734.79
a. The difference between DRC smuggled gold and Ugandan exports surplus to production is assumed to be that portion of gold from UAI that transitted through Uganda
to the international market but was not captured in any statistics.
b. Because the difference between the DRC and Ugandan data cannot be reconciled, and given that both sets of data are based on conservative estimates of informal
production and trade, it was reasonable to taken the highest yearly estimate from either L1 or L2 as the likely quantity smuggled from UAI into Uganda.
57
Gold: Value, USD
Table A5.1.5
*1998 and 2003 five months only 1998* 1999 2000 (a) 2001 2002 2003* Total
1 Est. quantity produced in UAI (b) 1,036.00 3,226.00 4,870.00 5,719.28 6,760.88 2,122.63 23,734.79
2 Est. price, USD per kg (c) 6,145.88 5,821.54 5,832.62 5,664.18 6,471.68 7,592.64
3 Total (L1 x L2) (d) $6,367,132 $18,780,288 $28,404,859 $32,395,031 $43,754,252 $16,116,365 $145,817,927
4 To get 2020 USD multiply L3 by… (e) 1.60 1.56 1.51 1.47 1.45 1.41
5 Est. total value in 2020 USD
(L3 x L4)
$10,187,411 $29,297,249 $42,891,338 $47,620,696 $63,443,665 $22,724,075 $216,164,434
a. Jan-Jun and Jul-Dec periods for 2000 have been merged back into a single year.
b. From L5 in Table A5.1.4.
c. Prices based on World Gold Council price database annual averages, accessed on 6 December 2020: From World Gold Council:
https://www.gold.org/goldhub/data/gold-prices. Annual price was then reduced by 35% to better reflect probable price at points of opportunities for exploitation in
the DRC. This base price and the original adopted price are shown in Table 2.
d. Total figures rounded-up (no cents included).
e. Rates taken from US Inflation Calculator, based on US Government CPI data published on October 13, 2020, which uses US Labor Dept Bureau of Labor Statistics data:
https://www.usinflationcalculator.com.
Gold: Quantity and value distribution across Ituri and Non-Ituri, 2020 USD
Table A5.1.6 Ituri (a) % Non-Ituri (a) % Total UAI
1 Quantity (kilograms) 10,681 45% 13,054 55% 23,735
2 Base value of quantity (b) $97,273,995 45% $118,890,439 55% $216,164,434
3 Est. value of Theft (c) 4,863,699.8 5.00% 2,377,808.8 2.00% 7,241,508.6
4 Est. Fees & Licences (d) 4,620,514.8 5.00% 2,330,252.6 2.00% 6,950,767.4
5 Est. of Taxes on Value (e) 25,874,882.7 28.00% 5,825,631.5 5.00% 31,700,514.2
6 Est. value of damages, USD $35,359,097.3 $10,533,692.9 $45,892,790.2
a. See text for explanation of Ituri and non-Ituri share of quantity and value
b. From Total from L5 in previous table
c. See text for explanation of proxy ‘theft tax’.
d. See text for explanation of proxy ‘tax on fees and licences’.
e. See text for explanation of tax on value.
58
Appendix 4.4: Signature of Expert
This report has been prepared in accordance with the terms of reference set out by the International
Court of Justice by MICHAEL NEST on 1 March 2021:
Signed:
Revised calculations for natural resources
(referred to in paragraphs 131-132 of Mr. Nest’s response)
Production Value,
USD 2020 % of Total
Basic Value of
Quantity by Area,
USD 2020
Remaining Value
After Theft
Resource All UAI Area % Share (B x E) % Ituri Non-Ituri (B - H, I)
Gold 216,164,434 5 2.0 Ituri 45% 97,273,995 5% 4,863,700 9 2,410,296
Non-Ituri 55% 1 18,890,439 2% 2 ,377,809 116,512,630
100% 2 16,164,434
Diamonds 70,531,967 17.0 Ituri 5% 3,526,598 5% 1 76,330 3 ,350,268
Non-Ituri 95% 67,005,369 0.5% 335,027 6 7,005,369
100% 70,531,967
Coltan 4,385,250 1.1 Ituri 5% 2 19,263 5% 1 0,963 208,299
Non-Ituri 95% 4,165,988 0.5% 2 0,830 4 ,165,988
100% 4,385,250
Tin 3,009,245 0.7 Ituri 5% 1 50,462 5% 7,523 142,939
Non-Ituri 95% 2,858,783 0.5% 1 4,294 2 ,858,783
100% 3,009,245
Tungsten 959,380 0.2 Ituri 5% 4 7,969 5% 2,398 45,571
Non-Ituri 95% 9 11,411 0.5% 4 ,557 911,411
100% 9 59,380
Timber 51,632,189 12.4 Ituri 50% 25,816,095 2% 5 16,322 2 5,299,773
Non-Ituri 50% 25,816,095 0.5% 129,080 2 5,816,095
100% 51,632,189
Coffee 68,838,483 1 6.6 Ituri 30% 20,651,545 1% 2 06,515 2 0,445,029
Non-Ituri 70% 48,186,938 0.0% - 4 8,186,938
100% 68,838,483
415,520,948 415,520,948 5,783,752 2,881,597 407,359,388
Ituri Non-Ituri All UAI
Proxy Theft: 5,783,752 2,881,597 8,665,349
Proxy F&L: 5,265,317 4,328,179 9,593,496
Profits Tax: 30,283,882 10,312,739 40,596,622
Grand Total: 41,332,950.8 1 7,522,515.5 5 8,855,466.3
Area Share Proxy Tax: Theft (E x G)
% Ituri Non-Ituri % Ituri Non-Ituri Ituri (G+K+N) % Non-Ituri
(H+L+O) % Total UAI
(I+M+P) %
5% 4 ,620,515 28.0% 25,874,883 35,359,097.3 85.5
2% 2,330,253 5.0% 5,825,631 10,533,692.9 60.1 45,892,790.2 78.0
5% 167,513 20.0% 6 70,054 1,013,897.0 2.5
2% 1,340,107 5.0% 3,350,268 5,025,402.6 28.7 6,039,299.7 10.3
5% 1 0,415 20.0% 41,660 63,038.0 0.2
2% 8 3,320 5.0% 208,299 312,449.1 1.8 375,487.0 0.6
5% 7 ,147 20.0% 28,588 43,257.9 0.1
2% 5 7,176 5.0% 142,939 214,408.7 1.2 257,666.6 0.4
5% 2 ,279 20.0% 9,114 13,791.1 0.0
2% 1 8,228 5.0% 45,571 68,355.8 0.4 82,146.9 0.1
1% 252,998 8.0% 2,023,982 2,793,301.4 6.8
1% 2 58,161 1.0% 258,161 645,402.4 3.7 3,438,703.8 5.8
1% 204,450 8.0% 1,635,602 2,046,568.1 5.0
0.5% 2 40,935 1.0% 481,869 722,804.1 4.1 2,769,372.2 4.7
5,265,317 4,328,179 30,283,882 10,312,739 41,332,950.8 100.0 17,522,515.5 100.0 58,855,466.3 100.0
Proxy Tax: Fees and Licences on Remaining
Value (J x K) Total Value Extracted, by Area Tax on Profits or Exports of Remaining
Value (J x N)
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