This Article has been written by Mohammad Faraz, a 3rd year law student of Aligarh Muslim University Centre Murshidabad, West Bengal.
ABSTRACT
The objective of this article is to examine the verdict issued by the International Court of Justice on December 19, 2005, in the case involving Armed Activities on the Territory of the Congo: Democratic Republic of the Congo v. Uganda. The author begins by presenting the case’s factual background and subsequently delves into the primary legal issues associated with it. These issues include the legality of the use of force under international law, the rights and obligations of an occupying power in occupied territories, and the matter of diplomatic protection. The article then progresses to analyze the International Court of Justice’s decision, ultimately concluding with the author’s personal perspective on the verdict.
KEYWORDS
International humanitarian law, International human right law, Territory, Occupation.
INTRODUCTION
Since the 1960s, the Great Lakes region in Central Africa has been very unstable after colonial rule ended. This region includes countries such as Rwanda, Burundi, Uganda, and the Zaire. There were coups and dictatorships, and things got worse with the Congo Wars, the deadliest conflict since World War II. In 1996, Laurent Kabila, with support from Rwanda and Uganda, led a force to overthrow the government of Zaire. In 1997, he successfully removed the previous dictator (Mobutu Sese Seko) and became the leader of the country, renaming it the Democratic Republic of Congo (herein afterwards referred as DRC). This led to a significant loss of life, with over a million people dying by late 1996.
The newly appointed President, upon assuming power, expressed gratitude to his two neighboring allies who had offered military, logistical, and economic support during his rise. In return, he rewarded these allies with significant advantages in the Congo, encompassing both military and economic privileges. These benefits involved actions such as appointing a Rwandan individual as the Chief of Staff for the newly established Congolese defense forces, showcasing the extent of the conferred advantages.
FACTUAL SITUATION
Shortly after Rwandan and Ugandan troops began operations in the DRC, relations between President Kabila and his allies soured due to their increasing influence in the country’s political, military, and economic domains. Faced with this uneasy situation, Kabila aimed to assert and safeguard Congo’s independence from Rwanda and Uganda. In July 1998, Kabila learned of an impending coup against him by the Rwandan Chief of Staff of the Congolese Defence Forces.
Responding to this threat, on July 28, 1998, President Kabila issued an official statement calling for the withdrawal of all foreign military forces from the DRC. This decisive move played a crucial role in thwarting the planned coup. Following the failed coup attempt, some Rwandan soldiers who remained in the Congo joined forces with Congolese Tutsi soldiers rebelling against the central government in an effort to overthrow President Kabila. In early August of the same year, Uganda initiated its own military attacks against the DRC.
The Ugandan People’s Defence Forces (UPDF) began a military intervention in the eastern part of the DRC. They moved forward and took control of different areas in the north-eastern part of the country. As they moved ahead, they helped several Congolese armed groups that had rebelled against the Kabila government. This help included things like recruiting, teaching, giving military training, and providing equipment to these rebel groups.
DRC MAIN CLAIM’S
On June 23, 1999, the DRC brought a case to the International Court of Justice (herein afterwards mentioned as ICJ) against Uganda. Charges against Burundi and Rwanda were already dismissed by the court as these countries didn’t acknowledge its mandatory jurisdiction. By June 2003, Ugandan troops had withdrawn from the DRC.
The DRC urged the ICJ to state that, starting from August 2, 1998, Uganda had committed “armed aggression” in the DRC. The DRC made three key arguments:
- Uganda (a) engaged in military and paramilitary actions against the DRC, (b) took control of DRC territory, and (c) provided military, logistical, financial, and economic aid to armed groups in the DRC opposing the government. Uganda has breached both conventional and customary international law, violating fundamental principles outlined in the United Nations Charter and the Charter of the Organization of African Unity in a blatant manner.
- In its second claim the DCR asserted that Uganda failed to adequately prevent human rights violations in occupied regions and neglected to punish those responsible. Allegations comprised wide-scale civilian massacres, torture, reprisals against civilians supporting anti-Ugandan fighters, looting, deliberate destruction of villages, and abduction of children into the Ugandan armed forces. The Congo argued that these actions violated international law principles related to human rights, humanitarian law, the distinction between civilian and military targets, and the Congolese people’s basic rights.
- Uganda was involved in and failed to prevent the unlawful exploitation of Congolese natural resources. The DRC contended that this behavior violated established principles of both conventional and customary international law, including General Assembly Resolution 1803 (XVII) on Permanent Sovereignty over Natural Resources of 1962.
UGANDA COUNTER CLAIM’S
Uganda has, of course, opposed all the allegations presented against it by the DRC and filled three counter claim. As regards the DRC’s first claim, it was argued that the DRC used force against Uganda, breaching Article 2(4) of the UN Charter; in respect of second it was asserted that the DRC permitted attacks on Ugandan diplomatic premises and personnel in Kinshasa, violating the principles of diplomatic protection; lastly it was contended that the DRC violated specific aspects of the 1999 Lusaka Agreement. In a November 2001 order, the International Court of Justice determined that the first and second counterclaims were admissible as they were interconnected with the DRC’s claims under Article 80 of the Rules of the Court. However, the third counterclaim was deemed inadmissible because it lacked a direct connection to the subject matter of the DRC’s claims.
On July 1, 2000, the Court issued provisional measures, directing both parties to abstain from any actions that could harm the rights of the other party or escalate the dispute further.
OBSERVATION OF ICJ ON EACH CONTENTION
The prohibition against the use of force in international law
The UN Charter strongly prohibits the threat or use of force, and Article 2(4) specifically addresses this. The court determined that Uganda’s military actions against the DRC went against the requirements of Article 2(4) of the UN Charter. The court then assessed whether Uganda’s actions could be justified under the self-defense provision of the UN Charter, as Uganda argued.
Article 51 of the Charter allows self-defense, either individually or collectively, but only in response to an ongoing armed attack. This means a state cannot use force to protect perceived security interests preemptively. Such preemptive use of self-defense would go against the language, as well as the purpose, of Article 51, which aims to minimize unilateral use of force in international relations.
Issue relating to belligerent occupation
This part of the claim concerns the legality of Ugandan forces being present in the Democratic Republic of Congo (DRC). Even though the DRC didn’t initially focus on this matter in their main arguments, the resolution of this issue became crucial because the court’s findings on it greatly influenced the outcomes of the DRC’s second and third submissions.
Before August 1998, the Democratic Republic of Congo (DRC) did not raise objections to the presence and actions of Ugandan military forces along its eastern border. There was a dispute regarding when the consent for Ugandan presence was revoked:
- According to the DRC: Consent was withdrawn on June 28, 1998, when the DRC issued a statement terminating the presence of all foreign military forces, including Rwanda. The DRC argued that even though Uganda was not explicitly mentioned, the statement implied the withdrawal of consent for Ugandan troops.
- According to Uganda: Consent was not withdrawn on June 27, 1998, for two reasons:
- The DRC’s statement only mentioned Rwanda.
- Any withdrawal of consent required a formal denunciation of the 1998 Security Protocol, in which the DRC and Uganda agreed to cooperate for security and peace along their common border.
ICJ concluded that, until August 1998, the DRC did not express objections to Ugandan military presence and had at times given specific authorization for troop movements into the DRC. However, by August 8, 1998, when Kabila accused Uganda of invading the DRC, consent was undoubtedly withdrawn. The Court noted that the withdrawal of consent did not necessitate a formal denunciation of the 1998 Security Protocol, emphasizing that the DRC had the authority to withdraw its consent at any time without formalities.
Voilation of IHL and IHRL
In this submission, the Court had a dual task: first, to determine if the actions allegedly carried out by Ugandan officers and soldiers could be linked to Uganda, and second, to assess whether such actions violated Uganda’s responsibilities under international human rights and humanitarian law.
As per a well-established principle in international law, the actions of any organ of a state are considered acts of that state. This customary rule is mirrored in Article 6 of the Draft Articles on State Responsibility. Consequently, the Court appropriately concluded that the actions of individual members of the Ugandan armed forces in the occupied territory were attributable to the state of Uganda.
The Court declared Uganda internationally accountable for the breaches of international human rights and humanitarian law committed by its armed forces and their members in the Democratic Republic of Congo (DRC). Additionally, Uganda was held responsible for not fulfilling its obligations as an occupying power in Ituri concerning violations of international human rights and humanitarian law in the occupied territory.
Illegal exploitation of natural resources
Based on the findings of the Porter Commission’s report, the Court determined that despite the absence of a clear government policy aimed at exploiting natural resources in the Democratic Republic of Congo (DRC), high-ranking Ugandan officers and soldiers were involved in the looting, plundering, exploitation, and trade of DRC’s natural resources. The military high command was also found to have failed in taking necessary measures to stop such actions, which the Court deemed a clear violation of the rules of war (jus in bello), as outlined in Article 47 of the Hague Regulations of 1907 and Article 33 of GC IV of 1949, both prohibiting pillage. Additionally, Uganda was found in violation of its duty of vigilance as an occupying power. The Court also referenced Article 21(2) of the African Charter, which asserts the rights of people who have been dispossessed to lawfully recover their property and receive adequate compensation.
The issue of diplomatic protecion
Based upon Article 44 and 45 of the Charter of UN court concluded that there were indeed attacks on Uganda’s diplomatic facilities in Kinshasa and that members of the Congolese armed forces mistreated Ugandan diplomats both at the embassy and at Ndjili International Airport. Based on the earlier arguments, the court determined that the Democratic Republic of Congo (DRC) violated its obligations under articles 22 and 29 of the Vienna Convention through its actions.
IMPLICATION OF JUDGEMENT
While the court acknowledged Uganda’s liability for the damages to the Democratic Republic of Congo (DRC), it left the determination of the nature, form, and amount of compensation to the parties involved. The DRC initially sought over US$ 11.3 billion in compensation, but Uganda rejected the claim. Following unsuccessful negotiations, the DRC appealed to the International Court of Justice (ICJ) in May 2015 to ascertain the reparation amount owed by Uganda. The ICJ, after appointing independent experts to assess the DRC’s claims, delivered its final judgment on February 9, 2022, awarding US$ 325 million to the DRC.
However, the ICJ dismissed other claims by the DRC, such as compensation for macroeconomic damage and sexual violations, citing a lack of evidence. The awarded reparations amount to approximately 3% of the DRC’s initial claim, comprising US$ 225 million for damages to persons, US$ 40 million for property damage, and an additional US$ 60 million for environmental damage and loss of natural resources. The total sum is scheduled to be paid in annual instalments of US$ 65 million, starting from September 1, 2022, to 2026. The court also ruled for post-judgment interest at an annual rate of 6% on any overdue amount for each instalment.
CONCLUSION:
While the author is in complete alignment with the International Court of Justice’s (ICJ) decisions on the key aspects of this case, which align with established international law, there is a regrettable observation that, at certain junctures, the Court seems to lack a comprehensive analysis of the relevant legal frameworks. This is notably evident in the context of Uganda’s violation of international human rights law and international humanitarian law. In this regard, the Court primarily outlined the implicated provisions without delving into a detailed commentary on their substantive content, significance, scope, and consequences.
References
Judgment of 19 December 2005 General List No 116 (Congo/Uganda case)
This article was originally written by Dakshinie Ruwanthika Gunaratne. The link for the same is herein https://ruwanthikagunaratne.wordpress.com/2018/03/28/armed-activities-case-drc-vs-uganda-occupation/
Article 2(4) of the UN Charter prohibits the use of force in international relations and foreign intervention in the do mestic affairs of states.
the Hague Regulations of 1907, the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War 1949, Protocol (I) Additional to the Geneva Conventions 1949 and relating to the Protection of Victims of International Armed Conflicts 1977.
This article was originally written by Margaret E. McGuinness and published on insights. The link for the same is herein https://www.asil.org/insights/volume/10/issue/1/case-concerning-armed-activities-territory-congo-icj-finds-uganda-acted
https://www.icjcij.org/case/116#:~:text=The%20Court%20also%20found%20that,the%20principle%20of%20non%2Dintervention.
This article was originally written by Dr. Rajeesh Kumar and punblished of Africa Trends. The link for the same is herein https://idsa.in/africatrends/International-Law-Matters-Rkumar-11-1-2022