CASE SUMMARY OF:

DEMOCRATIC REPUBLIC OF CONGO VS UGANDA

Group 7:

Vincent Mahinay - Counsel

Raymond Albeos - Co-counsel
Ma. Geraldine Gallaron - Researcher / Reporter
Ailun Jaugan - Reporter
Romeo Pableo - Reporter

Professor:
Atty. Jarred T.Cabilte
Professor, College of Law
Petitioner: Democratic Republic of Congo (DRC)
Respondent: Uganda

Facts:

DRC, the petitioner, filed its application to the ICJ in June 1999, alleging that acts of
armed aggression carried out by respondent Uganda on petitioners territory constituted
a flagrant violation of the United Nations Charter and the Charter of the Organization of
African Unity. Jurisdiction was found under Article 36(2) of the Statute of the Court, the
DRC and Uganda have accepted the compulsory jurisdiction of the Court.

Petitioner submitted three claims:

by engaging in military and paramilitary activities against the DRC and by

occupying DRC territory and actively extending military, economic and financial support
to irregular forces operating in the DRC, Uganda violated international law governing
non-use of force, peaceful settlement of disputes, respect of sovereignty, and non-
intervention.

by committing acts of violence against DRC nationals and destroying their

property, and by failing to prevent such acts by persons under its control, Uganda
violated international legal obligations to respect human rights, including the obligation
to distinguish between civilian and military objectives during armed conflict.

by exploiting Congolese natural resources and pillaging DRC assets and wealth,
Uganda violated international law governing rules of occupation, respect for sovereignty
over natural resources, right to self-determination of peoples, and the principles of non-
interference in domestic matters.

Respondent filed three counter-claims:

the DRC used force against Uganda in violation of the Article 2(4) of the UN
Charter.

the DRC allowed attacks on Ugandan diplomatic premises and personnel in

Kinshasa in violation of the law of diplomatic protection

the DRC violated certain elements of the 1999 Lusaka Agreement. In its order of
November 2001, the Court found the first and second claims formed part of the same
factual complex as the DRC claims and were therefore admissible under Article 80 of
the Rules of the Court. The third counter-claim was deemed inadmissible on the ground
it was not directly connected to the subject-matter of the DRC claims.
On July 1, 2000, the Court issued provisional measures requiring that both parties
refrain from any action which might prejudice the rights of the other party or which might
aggravate or extend the dispute.

ISSUES:

1.) Unlawful Use of Force and Violation of Territorial Sovereignty

2.) Whether or Not there had been an actual armed attack on Uganda
- if so, whether the DRC was the party responsible for it.
3.) Whether or not there was a Belligerent Occupation by Uganda
4.) Violations of International Human Rights Law and International Humanitarian Law

HELD:

1.) In its first claim the DRC alleged that from August 1998 until June 2003, Uganda
illegally maintained troops in the DRC. The DRC conceded that prior to August 1998,
then-President Laurent Kabila had welcomed the presence of Ugandan troops to secure
the eastern portions of Congo that could not otherwise have been secured following
Kabilas overthrow of President Mobutu Sese Seko in July 1997. This consent was
confirmed in an April 1998 Protocol between the DRC and Uganda governing the
presence of Ugandan troops. In July 1998, Kabila issued a decree calling for the
withdrawal of Rwandan troops in the DRC, which the DRC contended also constituted a
formal end to consent to the Ugandan troop presence. The DRC contended that by
early August 1998, Kabila had withdrawn any prior consent to the Ugandan troops.

Uganda argued in response that, despite language referring to all foreign troops, the
July 1998 decree was not intended to address Uganda. Uganda contended that the
April 1998 Protocol served as an agreement governing the presence of Ugandan
troops, and any DRC withdrawal of consent to Ugandan troops would require formal
renunciation of and withdrawal from the Protocol. Uganda further argued that, even if
the Court were to find there was no consent for its presence and its military
engagements, it was entitled to use force in self-defense after September 1998.

The Court relied on official UN reports and the findings of the Porter Commission to
conclude that DRC consent to the Ugandan troop presence had been effectively
withdrawn by August 1998. The Court found that the April 1998 Protocol on troop
presence did not require more formal renunciation. The Lusaka Agreement of 1999 and
the Luanda Agreement of 2002, did not legalize the Ugandan troop presence in DRC,
but rather served as modus operandi for the troop withdrawal.

The Court rejected Ugandas claim of self-defense under Article 51 of the UN Charter.
Uganda did not claim that it used force against an anticipated attack.

2.) But Uganda never claimed it was under attack from the armed forces of the
DRC, and the Court found no satisfactory evidence that the government of the DRC
was involved in the attacks by other forces that did occur. The Court therefore rejected
Ugandas claim without reaching the question whether Ugandas use of force met the
necessity and proportionality requirements of self-defense. The Court observed,
however, that the taking of airports and towns many hundreds of kilometers outside
Ugandas border would not seem proportionate to the series of transborder attacks it
claimed had given rise to the right of self-defence, nor to be necessary to that end.

While the Court concluded that there was no credible evidence to suggest that Uganda
created the Movement for the Liberation of Congo (MLC), an irregular force that fought
against the DRC government, it found that Uganda provided training and military
support to the MLC. Relying on its earlier opinion in Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States of America), the Court affirmed
that the principle of non-intervention prohibits a State to intervene, directly or indirectly,
with or without armed force, in support of an internal opposition in another State.

The Court thus held that Uganda had violated the sovereignty and territorial integrity of
the DRC, that Ugandas actions constituted an interference in the internal affairs of the
DRC, and that the unlawful military intervention by Uganda was of such a magnitude
and duration that the court considers it to be a grave violation of the prohibition on the
use of force expressed in Art. 2 paragraph 4 of the Charter.

3.) Before addressing the next two submissions made by the DRC, the Court
determined that Ugandas presence and military activity in eastern DRC between August
1998 and June 2003 constituted belligerent occupation under international humanitarian
law. In so holding, the Court rejected Ugandas argument that, because its troops were
largely confined to border regions and it had not established a military administration, it
was not an occupying power.

Citing the Israeli Barrier case, the Court noted that occupation can be found under the
Hague Regulations of 1907 where territory is actually placed under the authority of the
hostile army, and that the occupation only extends to areas where such authority has
been established and can be exercised. The test for occupation was thus whether
Ugandan forces in the DRC were not only stationed in particular locations but also that
they had substituted their own authority for that of the Congolese Government. The
absence of a structured military administration was irrelevant.
The Court concluded that Uganda was the occupying power in the Ituri district, where
Ugandan troops were present and where it was undisputed that a commander of the
Ugandan Peoples Defense Force (UPDF) had in June 1999 created a province called
Kibali-Ituri and had appointed a provisional governor.

4.) Having found Uganda to be an occupying power in Ituri, the Court turned to the
DRCs contention that Uganda was responsible for violations of international human
rights and humanitarian law in that territory. Those alleged violations included wide-
scale massacres of civilians, acts of torture, and other forms of inhumane and
degrading treatment. Additional claims included the unlawful seizure by Ugandan
soldiers of civilian property, the abduction and forcible conscription of several hundred
Congolese children by the UPDF in 2000, and the failure of Ugandan forces to
distinguish between combatants and non-combatants, as required under international
humanitarian law. On this latter claim, the Court rejected Ugandas contention that, since
it addressed fighting in Kisangani in 2000 that involved Rwandan troops, the claim could
not heard absent consent from Rwanda.

The Court found that the acts or omission of UPDF forces were attributable to Uganda,
even where such acts may have been outside the scope of a soldiers or officers
authority, as the UPDF is a State organ. It further noted that a States obligations under
human rights instruments do not cease in the case of armed conflict.

The Court concluded that the acts committed by UPDF and its officers and soldiers
violated customary international law as reflected in Articles 25, 27, 28, 43, 46 and 47 of
the 1907 Hague Regulations, and also violated the following treaty obligations of
Uganda:

Fourth Geneva Convention Articles 27, 32, and 53 (obligations of an occupying power);
International Covenant on Civil and Political Rights, Articles 6, paragraph 1 and 7;
First Protocol Additional to the Geneva Conventions of 12 August 1949, Articles 48, 51,
52, 57, 58, and 75, paragraphs 1 and 2;
African Charter on Human and Peoples? Rights, Articles 4 and 5;
Convention on the Rights of the Child, Article 38, paragraphs 2 and 3;
Optional Protocol to the Convention on the Rights of the Child, Articles 1, 2, 3 paragraph
3, 4, 5, and 6. (Paragraph 219.)

Illegal Exploitation of Natural Resources (paras 222-250)

The final submission of the DRC claimed that Uganda had violated international
conventional and customary law, including the jus in bello duties owed by an occupying
power, by engaging in the illegal exploitation of Congolese natural resources and looting
and pillaging Congolese assets and wealth. While the Court stopped short of finding an
official Ugandan governmental policy directed at exploiting resources in the DRC, it
found ample credible and persuasive evidence to conclude that officers and soldiers of
the UPDF, including the most high-ranking officers, were involved in the looting,
plundering and exploitation of the DRCs natural resources and that the military
authorities did not take any measures to put an end to these acts. The Court declined to
find that looting and plundering of natural resources in the circumstance of foreign
military intervention amounted to a violation of DRC sovereignty over its natural
resources as defined by prior General Assembly resolutions aimed at control of natural
resources by post-colonial new independent states. Rather, the Court concluded that
the actions of the UPDF forces who engaged in the looting and plundering should be
considered violations of jus in bello under the Hague Regulations of 1907 (Art. 47) and
the Fourth Geneva Convention of 1949 (Art. 33), which prohibit pillage, and the African
Charter (Art. 21) which requires restitution or compensation in the case or spoliation.

The Court granted the DRCs request for reparations, noting under prior precedent it is
well established in general international law that a State which bears responsibility for
an internationally wrongful act is under an obligation to make full reparation for the injury
caused by that act. In the event the parties fail to reach a settlement, the amount of
reparations will be determined by the Court at a future proceeding.

Because Uganda maintained troops in the DRC until June 2003 and because the Court
found that Uganda actions up to June 2003 violated international law, the Court found
that Uganda had failed to comply with the provisional measures order of July 2000.

Counter-Claims of Uganda

In its first counter-claim, Uganda alleged broadly that since 1994 it had been a victim of
hostilities and other destabilizing activities of armed groups based in the DRC (until
1997, known as Zaire). Uganda alleged that these armed groups were supported by
both Sudan and the DRC, and the activities against Ugandan forces were coordinated
by Sudan and Congolese armed forces. Uganda relied on the Corfu Channel case as a
basis for the claim that, by allowing Sudan and other armed groups to attack Uganda,
the DRC was in violation of the principle of non-use of force. Moreover, Uganda argued
that the DRCs support between 1997 and 1998 for anti-Uganda irregular forces could
not be justified on grounds of self-defense, as these activities predated Ugandas
decision to deploy troops into the DRC.

The Court found the full counter-claim admissible. Nonetheless, it said that to the extent
anti-Ugandan military action was taking place in eastern Zaire prior to May 1997, there
was insufficient evidence to show that the Zairean government was able to control those
activities. The Court further held that the evidence was insufficient to support Ugandas
claim that the DRC supported anti-Ugandan rebel groups between 1997 and 1998.
During this period of cooperation between Uganda and the Kabila government, the DRC
engaged in counter-actions against anti-Ugandan rebels and the DRC consented to
deployment of Ugandan troops in the border areas. Those portions of the counter-claim
relating to activity prior to August 1998 were thus rejected.

The Court rejected the rest of the counter-claim relating to activities after August 1998,
because the Court had held that Uganda was liable for illegal use of force against the
DRC during that period, it followed that, under Article 51 of the UN Charter, the DRC
was entitled to use force in order to repel Ugandas attacks.

The second counter-claim involved allegations of the August 1998 storming of the
Ugandan embassy in Kinshasa by Congolese soldiers as well as looting and
misappropriation of Ugandan diplomatic properties in Kinshasa following the evacuation
of the last Ugandan diplomats in September 1998. Uganda alleged that each of the
actions breached international diplomatic and consular law, in particular the 1961
Vienna Convention on Diplomatic Relations (Vienna Convention).

The Court found that the Vienna Convention continues to apply regardless of whether a
state of armed conflict exists, and further requires accommodation for safe evacuation
of diplomatic personnel in the event of conflict. It also requires the respect of diplomatic
property and premises in the event diplomatic relations are breached between the
sending and receiving States. This principle was upheld in United States Diplomatic and
Consular Staff in Tehran.

The Court rejected the DRC argument that the alleged breaches of the Vienna
Convention were not factually related to the DRC claim of illegal use of force, noting that
counter-claims do not have to be based on identical legal instruments of the claims to
meet the connection test under Art. 80 of the Courts Rules. It also rejected the DRCs
contention that Ugandas failure to exhaust local remedies rendered the claim
inadmissible. The Court noted exhaustion of local remedies was not required because
Uganda was not seeking remedy to injury to the individual victims, but was vindicating
its own rights under the Vienna Conventions.

Turning to the merits, the Court found sufficient evidence to support a finding that
attacks against the Embassy and mistreatment of Ugandan diplomats had taken place,
including mistreatment of diplomats outside the Embassy and that the DRC had
breached its obligations under Articles 22 and 29 of the Vienna Convention. The Court
further found that, to the extent looting of Ugandan diplomatic premises had been
carried out by militia groups, the DRC had an obligation to prevent such actions.

The voting on each of the central judgments against Uganda was either
unanimous or sixteen to one.
_____________________________________________________________

(Nicaragua v. United States of America)

(Israeli Barrier case)
(jus in bello) ICRC - duties owed by an occupying power,
United States Diplomatic and Consular Staff in Tehran (Judgment, I.C.J. reports 1980 p.
40, para 86).