Background, Claims and Counter-Claims

The DRC filed its application to the ICJ in June 1999, alleging that ?acts of
armed aggression? carried out by Uganda on DRC territory constituted a ?
flagrant violation of the United Nations Charter and the Charter of the
Organization of African Unity.?[1]  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.[2]
The DRC submitted three claims:  (1) 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; (2) 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; and (3)
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. 
Uganda filed three counter-claims: (1) the DRC used force against Uganda in
violation of the Article 2(4) of the UN Charter; (2) the DRC allowed attacks on
Ugandan diplomatic premises and personnel in Kinshasa in violation of the law of
diplomatic protection; and (3) the DRC violated certain elements of the 1999
Lusaka Agreement.[3]  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.
[4]  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??[5]
Unlawful Use of Force and Violation of Territorial Sovereignty (paras 28-
166)
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 Kabila?s 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[6] 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, and
that later agreements, i.e., the Lusaka Agreement of 1999 and the Luanda
Agreement of 2002,[7] did not legalize the Ugandan troop presence in DRC, but
rather served as modus operandi for the troop withdrawal.[8]
The Court rejected Uganda?s claim of self-defense under Article 51 of the UN
Charter.[9]  Uganda did not claim that it used force against an anticipated attack. 
Thus the questions were whether there had been an actual armed attack on
Uganda, and if so, whether the DRC was the party responsible for it.  But
Uganda never claimed it was under attack from the armed forces of the DRC,
[10] 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 Uganda?s claim without reaching the question whether
Uganda?s use of force met the necessity and proportionality requirements of
self-defense.  (Paragraphs 146-147.)[11]  The Court observed, however, that the
taking of airports and towns many hundreds of kilometers outside Uganda?s
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.?  (Paragraph 147.) 
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.?[12]
The Court thus held that Uganda had violated the sovereignty and territorial
integrity of the DRC, that Uganda?s actions constituted an interference in the
internal affairs of the DRC, and that ?[t]he 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.?  (Paragraph 165.)[13]
Issue of Belligerent Occupation (paras 167-180)
Before addressing the next two submissions made by the DRC, the Court
determined that Uganda?s presence and military activity in eastern DRC
between August 1998 and June 2003 constituted belligerent occupation under
international humanitarian law.[14]  In so holding, the Court rejected Uganda?s
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,[15] 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.?  (Paragraph 173.)  The
absence of a structured military administration was irrelevant.[16]
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 People?s
Defense Force (UPDF) [17] had in June 1999 created a province called ?Kibali-Ituri?
and had appointed a provisional governor. 
Violations of International Human Rights Law and International
Humanitarian Law (paras 181-221)
Having found Uganda to be an occupying power in Ituri, the Court turned to the
DRC?s 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 Uganda?s contention that, since it addressed fighting in
Kisangani in 2000 that involved Rwandan troops, the claim could not heard
absent consent from Rwanda.  (Paragraphs 203-204.)[18]
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 soldier?s
or officer?s authority, as the UPDF is a State organ.  (Paragraphs 213-214.)  It
further noted that a State?s obligations under human rights instruments ?do not
cease in the case of armed conflict.?  (Paragraph 216.)
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 DRC?s natural resources and that the military authorities did not take any
measures to put an end to these acts.?  (Paragraph 242.)  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.[19]  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.  (Paragraph 245.)
Remedy (paras 251-261)
  The Court granted the DRC?s 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.?  (Paragraph 259.)[20] 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 (paras 266- 344)

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 DRC?s support between
1997 and 1998 for anti-Uganda irregular forces could not be justified on grounds
of self-defense, as these activities predated Uganda?s 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 Uganda?s 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 Uganda?s
attacks.?  (Paragraph 304.) 
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 (Judgment,
I.C.J. reports 1980 p. 40, para 86). 
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 Court?s Rules.  It
also rejected the DRC?s contention that Uganda?s 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.  Paragraph 330.) 
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.  (Paragraphs 337-338.)[21]   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. (Paragraph 342.)
The voting on each of the central judgments against Uganda was either
unanimous or sixteen to one.

On December 19, 2005, the International Court of Justice (ICJ) issued

its final judgment in the Case Concerning Armed Activities on the
Territory of the Congo (Democratic Republic of the Congo v. Uganda).
The Court held that the armed activities of Uganda in the Democratic Republic of
Congo (?DRC?) between August 1998 and June 2003 violated the international
prohibition against aggressive use of force as well as international human rights
and international humanitarian law. The Court ruled in favor of Uganda on its
counter-claim that the DRC violated obligations owed to Uganda under the
Vienna Convention on Diplomatic Relations. The Court ordered Uganda to pay
reparations to the DRC.