Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance
with the following Principles

4. All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations.

Article 42

Should the Security Council consider that measures provided for in Article 41 would be inadequate or
have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to
maintain or restore international peace and security. Such action may include demonstrations, blockade,
and other operations by air, sea, or land forces of Members of the United Nations.

Article 51

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an
armed attack occurs against a Member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security. Measures taken by Members in the
exercise of this right of self-defence shall be immediately reported to the Security Council and shall not
in any way affect the authority and responsibility of the Security Council under the present Charter to
take at any time such action as it deems necessary in order to maintain or restore international peace
and security.

Article 52

1. Nothing in the present Charter precludes the existence of regional arrangements or agencies for
dealing with such matters relating to the maintenance of international peace and security as are
appropriate for regional action provided that such arrangements or agencies and their activities
are consistent with the Purposes and Principles of the United Nations.

2. The Members of the United Nations entering into such arrangements or constituting such
agencies shall make every effort to achieve pacific settlement of local disputes through such
regional arrangements or by such regional agencies before referring them to the Security
Council.

3. The Security Council shall encourage the development of pacific settlement of local disputes
through such regional arrangements or by such regional agencies either on the initiative of the
states concerned or by reference from the Security Council.

4. This Article in no way impairs the application of Articles 34 and 35.

Article 53

1. The Security Council shall, where appropriate, utilize such regional arrangements or agencies for
enforcement action under its authority. But no enforcement action shall be taken under
regional arrangements or by regional agencies without the authorization of the Security Council,
with the exception of measures against any enemy state, as defined in paragraph 2 of this
 Article, provided for pursuant to Article 107 or in regional arrangements directed against
renewal of aggressive policy on the part of any such state, until such time as the Organization
may, on request of the Governments concerned, be charged with the responsibility for
preventing further aggression by such a state.

2. The term enemy state as used in paragraph 1 of this Article applies to any state which during the
Second World War has been an enemy of any signatory of the present Charter.

CAROLINE CASE

In 1837 a group of men led by William Lyon Mackenzie

rebelled in Upper Canada (nowOntario), demanding a more democratic government. There was much s
ympathy for their cause in the United States, and asmall steamer, the Caroline, owned by U.S. citizens, c
arried men and supplies from the U.S. side of the Niagara river to theCanadian rebels on Navy Island just
above Niagara Falls. On the night of Dec. 29, 1837, a small group of British andCanadians loyal to the Up
per Canadian government crossed the river to the U.S. side where the Caroline was moored,loosed her,
set fire to her, and sent her over the falls. One American was killed in the incident. Americans on the bor
der werearoused to intense anti-British feeling, and soldiers under Gen. Winfield Scott

were rushed to the scene to prevent violentAmerican action. The affair passed over, though it had an af
termath, when one of the men who had taken part in the attackboasted of that fact when he was in the
United States and was arrested as a criminal. That matter, too, was smoothed over,but the Caroline Affa
ir and the Aroostook War helped to make relations with Great Britain very tense in the years before the
Webster-Ashburton Treaty.
CONGO v UGANDA

Background to the case

The Democratic Republic of Congo (DRC) asked the Court to decide that, starting from 02 August 1998,
Uganda had engaged in “armed aggression” in the DRC. It argued 1) that Uganda (a) engaged in military
and paramilitary activities against the DRC, (b) occupied DRC territory, and (c) provided military, logistic,
financial and economic support to armed groups in the DRC who operated against the government; 2)
that Uganda committed and failed to prevent violations of human rights and humanitarian law; and 3)
that Uganda engaged in and failed to prevent the illegal exploitation of Congolese natural resources. The
DRC sought as remedies, for example, the cessation of internationally wrongful acts, reparation, and
guarantees of non-repetition.

Facts of the Case

In 1997, President Kabila came into power in the DRC, with the help of Uganda and Rwanda. Initially,
Ugandan and Rwandan forces were present in the DRC following DRC’s invitation and consent. Then, the
DRC’s relations with Uganda and Rwanda deteriorated, and on 28 July 1998, President Kabila announced
the withdrawal of the DRC’s consent to Rwandan military presence in the DRC. On 8 August 1998, Kabila
accused both Ugandan and Rwandan forces of invading the DRC. In June 2003, Ugandan forces
completely withdrew from the DRC. DRC argued that Uganda occupied DRC territory, while Uganda
argued its presence in the DRC was justified:1) until 11 September 1998, based on DRC’s invitation;
2) from 11 September 1998 until 10 July 1999, based on self-defense; and, 3) from July 1999 until June
2003, based on DRC’s consent.

Questions before the Court (on occupation)

1. Was Uganda an occupying power in the DRC?

2. Did Uganda violate principles prohibiting intervention and use of force though its occupation?

3. Did Uganda as an occupying Power, fail to take measures to respect and ensure respect for, or
violate, human rights (IHRL) and international humanitarian law (IHL) in occupied areas?

Summary of relevant findings of the Court

Uganda argued that its military presence and activities in the DRC were, for most part, based on an
invitation by the DRC and was authorized by/ consented to by the DRC. The Court held that consent
provided by one State to another is limited both in duration (i.e. until the consent is withdrawn) and
scope (i.e. to rely on consent, foreign forces must act within the limits specified in the invitation). The
Court concluded that DRC’s consent was certainly withdrawn by 8 August 1998 and, irrespective of
withdrawal, some Ugandan military activities fell outside the scope of authorization provided by the
DRC. These actions can be justified, if at all, by self-defense. The Court also concluded that Uganda had
occupied the Ituri Province and, in Ituri, it failed to take measures to respect and ensure respect for IHRL
and IHL.

Relevant Findings of the Court

Issues relating to consent

1. When did the DRC withdraw consent?

Prior to August 1998 the DRC did not object to Ugandan military presence and activities in its eastern
border. Parties disagreed as to when consent was withdrawn.

1. For the DRC: Consent withdrawn on 28 June 1998, when the DRC issued a statement
terminating “…with effect from this Monday 27 July 1998, the Rwandan military presence… This
marks the end of the presence of all foreign military forces in the Congo.” The DRC argued that
even if Uganda was not mentioned by name, the final phrase meant that consent was
withdrawn for Ugandan troops.

2. For Uganda: Consent was not withdrawn on 27 June 1998 because: 1) the DRC statement only
referred to Rwanda; and 2) any withdrawal of consent required a formal denunciation of the
1998 Security Protocol. In the 1998 Security Protocol, the DRC and Uganda agreed to co-operate
to ensure security and peace along the common border.

The ICJ could not conclude if the 28 July 1998 statement withdrew consent also for Ugandan presence in
the DRC (the statement mentions only Rwandan troops).

The Security Protocol had not provided the legal basis (authorization/ consent) for the presence of
Ugandan troops, but reaffirmed authorization/ consent. The source of authorization/consent antedated
the Protocol. Thus, the withdrawal of consent did not require a formal denunciation of the 1998 Security
Protocol (para 47).

Thus, the DRC could withdraw its consent at any time, without any formalities being necessary.

NB 1: In this respect, it is important to note that the DRC argued before the ICJ that the Security Protocol
did not constitute an “invitation or acceptance by either of the contracting parties to send its army into
the other’s territory”. The Court held that both the absence of any objection to the presence of Ugandan
troops in the DRC in the months before signing the Protocol, and subsequent practice, indicates that the
continued presence, as before, of Ugandan troops was permitted by the DRC even under the Protocol.
Thus, continued consent for foreign forces presence need not be expressed, and can be ascertained from
facts on the ground.

The Court concluded that prior to August 1998 the DRC did not object to Ugandan military presence and
activities in its eastern border and had, sometimes, provided specific authorization for the movement of
troops into the DRC.

However, consent was certainly withdrawn by 8 August 1998 when Kabila accused Uganda of invading
the DRC.

Uganda argued that between 1999 to 2003, the DRC, once again, consented to Ugandan presence. The
ICJ held that the four agreements in 1999 and 2000 relied on by Uganda did not alter the legal status of
its presence. These agreements stipulated arrangements made to progress towards withdrawal of
foreign troops. In accepting these modalities, the DRC neither consented to troop presence nor
recognized “…the situation on the ground as legal” either before the agreement or in the period that
would pass until the fulfilment of its terms. This status was not changed even when another agreement
authorized the temporary presence of Uganda troops in the border region of Ruwenzori Mountains in
the DRC, until appropriate security mechanisms had been put in place. The ICJ held that “this reflects the
acknowledgment by both Parties of Uganda’s security needs in the area, without pronouncing upon the
legality of prior Ugandan military actions there or elsewhere.”

2. What activities of the Ugandan forces did the DRC consent to?

The ICJ held that the consent/ authorization provided by the DRC was not an “open-ended consent” and
was restricted in terms of “geographic location and objectives.” Initially, the DRC had accepted that
Uganda could act, or assist in acting against the rebels in the eastern border and to prevent them from
acting across the common border. Thus, Ugandan military operations 1) against rebels and 2) in eastern
border towns were covered under the invitation. However, the nature and extent of those Ugandan
military operations in August 1998, in the three border towns that resulted in Uganda taking control of
these towns and their airports (paragraph 110) were “quite outside any mutual understanding between
the Parties as to Uganda’s presence on Congolese territory…”.

Thus, even if the DRC had not withdrawn consent, these activities will fall outside the authorization
provided by the DRC.

NB 2: The ICJ held that these military operations, which occurred in August 1998, were not covered by
consent and violated principles relating to the use of force. These operations could only be justified as
self-defense. Yet, Uganda had not relied on self-defense to justify its activities in August (para 112).

NB 3: For the situation to be qualified as an occupation, the mere use of force in one country by a
foreign force is not sufficient. Other conditions, such as a substitution of authority, as elaborated below,
must be met.

1. Was there an occupation by Ugandan forces in the DRC? If so, where in the DRC?

The DRC claimed that Uganda had occupied DRC territory either directly (through Ugandan forces) or
indirectly (through rebel groups that exercised de facto (effective but not legally recognized) control
over the territory).

The ICJ concluded that Uganda occupied only Ituri.

In arriving at this conclusion, the Court first referred to customary international law, as reflected
in Article 42 of The Hague Regulations of 1907, to find that territory is occupied when 1) it is placed
under the authority of the hostile army, and 2) the occupation extends only to the territory where a)
such authority has been established and b) can be exercised.

NB 1: This was a situation where foreign forces were already present in the DRC because they were
invited by DRC, but had later become a hostile foreign force. This was not a situation where occupation
began with a foreign invasion. On what constitutes occupation, see here, here (para 285 onwards),
and here.

The ICJ held that for invited forces to become an occupying power, there must be “sufficient evidence to
demonstrate that the said authority was in fact established and exercised by the intervening State in the
areas in question.” In other words, Ugandan forces must have“substituted their own authority for that of
the Congolese Government”.

NB 2: The requirement to show that there was an actual substitution of authority, before qualifying as an
occupying power, is criticized by some who argue that such an interpretation would be too narrow and
that the ICJ’s judgment, by emphasizing actual over potential control, is not consistent with the
requirements in Article 42 of the Hague Regulations. They argue that “while the ICJ’s focus on actual
exercise of authority could introduce more certainty as to whether an area was occupied or not, it would
also facilitate the creation of more legal black holes that would remain beyond the scope of responsibility
of any authority, resulting ultimately in a protection gap…“. See also Sassoli (p.1394). States are divided,
with the UK arguing that to qualify as an occupation, the occupying power simply needs to be “in a
position to substitute its own authority for that of the former government” (11.3) and the US arguing
that it “must substitute its authority for that of the territorial State” (11.2.2.2) (emphasis added).

NB 3: The Court confirmed that occupation was a question of fact. It should not be based on any
subjective assessment. Therefore, once Ugandan forces had substituted their authority for that of the
DRC government, “any justification given by Uganda for its occupation would be of no relevance”. This
means that once an occupation factually comes into existence, regardless of the legality of the initial
invasion, or justification provided for any use of force, the hostile State now has rights and duties as an
occupying power. See US DoD Manual (11.2.1) and ICRC Commentry.

The Court also held that once Ugandan forces had substituted the authority of the Government, there is
no additional requirement to have established a “structured military administration of the territory
occupied” for it to be considered as occupied.

The Court concluded that Uganda established and exercised authority in Ituri as an occupying Power (as
evident in the creation of a new province in Ituri and appointment of its governors. See para 175).

Uganda, however, did not occupy areas controlled and administered by Congolese rebel movements
because these groups were not “under the control” of Uganda (see part III).

2. What were Uganda’s responsibilities as an occupying power?

The Court, referring to Article 43 of The Hague Regulations, outlined Uganda’s responsibilities in Ituri as
follows:

“… take all the measures in its power to restore, and ensure, as far as possible, public order and safety in
the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This
obligation comprised 1) the duty to secure respect for the applicable rules of international human rights
law and international humanitarian law, 2) to protect the inhabitants of the occupied territory against
acts of violence, and 3) not to tolerate such violence by any third party.”

Thus, Uganda’s international responsibility was engaged both for 1) any actions and omissions of its
military forces in the DRC that violated its international obligations and 2) for any lack of vigilance in
preventing violations of IHRL and IHL by any other actors present in this occupied territory, whether
these were rebel groups “acting on their own account” or private persons.

3. Was Uganda responsible for activities of its military forces in the DRC, when they acted against
Uganda’s instructions?

Uganda argued that its military personnel acted contrary to the instructions given or exceeded their
authority and therefore Uganda could not be held responsible. The Court disagreed: 1) A party to an
armed conflict is responsible for all acts by persons forming part of its armed forces.[1] 2) The conduct
of any organ of a State must be regarded as an act of that State even if that organ exceeded its
authority.

Thus, the conduct of the Ugandan forces and of individual soldiers was attributable to Uganda.

The ICJ concluded that Uganda held responsible for acts of looting, plundering and exploitation of the
DRC’s natural resources committed by its forces in the DRC and, thus, failed to comply with its
obligations under Article 43 of The Hague Regulations of 1907 as an occupying Power (see part III).

4. Was Uganda responsible for activities of non-State actors in the Ugandan occupied territory?

Uganda was held responsible for any lack of vigilance in preventing violations of IHRL and IHL by rebels
and private persons in Ugandan occupied territory. For example, the ICJ found Uganda to be in violation
of its obligations by not taking appropriate measures to prevent the looting, plundering and exploitation
of natural resources in Ituri by private persons. Uganda also did not take measures to respect or ensure
respect for IHRL and IHL in the occupied territories (p.280) (on the jurisprudence on the extra territorial
application of IHRL see part III).

The ICJ did not hold Uganda responsible for violations of rebel groups that operated outside Ituri
because they were not under Uganda’s control