By Frank Kamuntu
A time frame for hearing of the case in which the Democratic Republic of Congo (DRC) accuses the Uganda government and Uganda Peoples Defence Forces (UPDF) of plunder and crimes against humanity have been set.
The case is about UPDF’s intervention in the DRC in 1999 and the fallout between Kampala and Kishasa.
The International Criminal Court (ICC) ruled earlier that while the DRC had not objected to the presence or activities of the UPDF troops in its eastern border area, the consent given to Uganda to place its forces in the DRC, and to engage in military operations, was not an open-ended consent and thus dragged Uganda to the ICC, demanding reparations.
The ICC has since resolved to hold public hearings on the question of reparations the in DRC Vs Uganda case.
The International Court of Justice (ICJ), the principal judicial organ of the United Nations, will in November hold public hearings on the question of reparations in the case concerning Armed Activities on the Territory of the Congo in the case.
The hearings of the 1999 case are scheduled for Monday 18 to Friday 22 November 2019, at the Peace Palace in The Hague, the seat of the Court.
In addition to the alleged acts, Congo sought reparation for acts of intentional destruction and looting and the restitution of national property and resources appropriated for the benefit of the respective respondent states of Uganda, Rwanda and Burundi.
However, the Government of the DRC informed the Court on January 15, 2001 that it intended to discontinue the proceedings instituted against Burundi and Rwanda, stating that it reserved the right to invoke subsequently new grounds of jurisdiction of the Court. The two cases were therefore removed from the list on January 30, 2001.
The accusations thereafter stated that officers and soldiers of the UPDF, including the most high-ranking officers, had been involved in the looting, plundering and exploitation of the DRC’s natural resources. ICJ was told that the military authorities had not taken any measures to put an end to these acts.
On 23 June 1999, DRC filed a case in the Registry of the Court Applications instituting proceedings against Burundi, Uganda and Rwanda “for acts of armed aggression committed…in flagrant breach of the United Nations Charter and of the Charter of the Organization of African Unity”.
In its Applications instituting proceedings against Burundi and Rwanda, the DRC referred, as bases for the Court’s jurisdiction, to Article 36, paragraph 1, of the Statute, the New York Convention of 10 December 1984 against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Montreal Convention of 23 September 1971 for the Suppression of Unlawful Acts against the Safety of Civil Aviation and, lastly, Article 38, paragraph 5, of the Rules of Court.
However, the Government of the DRC informed the Court on 15 January 2001 that it intended to discontinue the proceedings instituted against Burundi and Rwanda, stating that it reserved the right to invoke subsequently new grounds of jurisdiction of the Court. The two cases were therefore removed from the List on 30 January 2001.
In the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), the DRC founded the jurisdiction of the Court on the declarations of acceptance of the compulsory jurisdiction of the Court made by the two States.
On June 19, 2000, the DRC filed a request for the indication of provisional measures to put a stop to all military activity and violations of human rights and of the sovereignty of the DRC by Uganda.
On July 1, 2000, the Court ordered each of the two Parties to prevent and refrain from any armed action which might prejudice the rights of the other Party or aggravate the dispute, to take all measures necessary to comply with all of their obligations under international law and also to ensure full respect for fundamental human rights and for the applicable provisions of humanitarian law.
Uganda subsequently filed a Counter-Memorial containing three counter-claims. By an Order of November 29, 2001, the Court found that two of the counter-claims (acts of aggression allegedly committed by the Congo against Uganda ; and attacks on Ugandan diplomatic premises and personnel in Kinshasa and on Ugandan nationals for which the Congo is alleged to be responsible) were admissible as such and formed part of the proceedings.
It also directed the submission of a Reply by the Congo and a Rejoinder by Uganda relating to the claims of both Parties in the proceedings. Those pleadings were filed within the time-limits laid down by the Court.
By an Order of January 29, 2003, the Court authorized the submission by the DRC of an additional pleading relating solely to the counter-claims submitted by Uganda, which was duly filed on 28 February 2003.
Following oral proceedings in April 2005, the Court handed down its Judgment on the merits on 19 December 2005.
It began by noting that it was aware of the complex and tragic situation which had long prevailed in the Great Lakes region and of the suffering of the local population. It observed that the instability in the DRC in particular had had negative security implications for Uganda and several other neighbouring States. It recalled, however, that its task was to respond, on the basis of international law, to the particular legal dispute brought before it.
The Court first dealt with the question of the invasion of the DRC by Uganda. After examining the materials submitted to it by the Parties, the Court found that, in the period preceding August 1998, the DRC had not objected to the presence or activities of Ugandan troops in its eastern border area.
The two countries had agreed, among other things, that their respective armies would “co-operate in order to insure security and peace along the common border”.
However, the Court drew attention to the fact that the consent that had been given to Uganda to place its forces in the DRC, and to engage in military operations, was not an open-ended consent.
It was limited, in terms of objectives and geographic location, to actions directed at stopping the rebels who were operating across the common border. It did not constitute a consent to all that was to follow.
The Court carefully examined the various treaties directed to achieving and maintaining a ceasefire, the withdrawal of foreign forces and the stabilization of relations between the DRC and Uganda.
It concluded that none of those instruments constituted consent by the DRC to the presence of Ugandan troops on its territory (save for the limited exception regarding the border region of the Rwenzori Mountains contained in the Luanda Agreement).
The Court also rejected Uganda’s claim that its use of force, where not covered by consent, was an exercise of self-defence, finding that the preconditions for self-defence did not exist.
Indeed, the unlawful military intervention by Uganda was of such magnitude and duration that the Court considered it to be a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the United Nations Charter.
The Court also found that, by actively extending military, logistic, economic and financial support to irregular forces operating on the territory of the DRC, the Republic of Uganda had violated the principle of non-use of force in international relations and the principle of non-intervention.
The Court then moved to the question of occupation and of the violations of human rights and humanitarian law. It observed first that, under customary international law, as reflected in Article 42 of the Hague Regulations of 1907, territory is considered to be occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised.
Having concluded that Uganda was the occupying power in Ituri at the relevant time, the Court stated that, as such, it was under an obligation, according to Article 43 of the 1907 Hague Regulations, to take all 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 had not been done.
The Court also considered that it had credible evidence sufficient to conclude that UPDF (Uganda Peoples’ Defence Forces) troops had committed violations of international humanitarian law and human rights law. It found that these violations were attributable to Uganda.
The third issue that the Court was called upon to examine concerned the alleged exploitation of Congolese natural resources by Uganda. In this regard, the Court considered that it had credible and persuasive evidence to conclude that officers and soldiers of the UPDF, including the most high-ranking officers, had been involved in the looting, plundering and exploitation of the DRC’s natural resources and that the military authorities had not taken any measures to put an end to these acts. Uganda was responsible both for the conduct of the UPDF as a whole and for the conduct of individual soldiers and officers of the UPDF in the DRC.
This was so even when UPDF officers and soldiers had acted contrary to instructions given or had exceeded their authority. The Court found, on the other hand, that it did not have at its disposal credible evidence to prove that there was a governmental policy on the part 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.
In respect of the first counter-claim of Uganda, the Court found that Uganda had not produced sufficient evidence to show that the DRC had provided political and military support to anti-Ugandan rebel groups operating in its territory, or even to prove that the DRC had breached its duty of vigilance by tolerating anti-Ugandan rebels on its territory. The Court thus rejected the first counter-claim submitted by Uganda in its entirety.
As for the second counter-claim of Uganda, the Court first declared inadmissible the part of that claim relating to the alleged maltreatment of Ugandan nationals not enjoying diplomatic status at Ndjili International Airport. Regarding the merits of the claim, it found, on the other hand, that there was sufficient evidence to prove that there were attacks against the Embassy and acts of maltreatment against Ugandan diplomats at Ndjili International Airport. Consequently, it found that the DRC had breached its obligations under the Vienna Convention on Diplomatic Relations. The removal of property and archives from the Ugandan Embassy was also in violation of the rules of international law on diplomatic relations.
The Court noted in its Judgment that the nature, form and amount of compensation owed by each Party had been reserved and would only be submitted to the Court should the Parties be unable to reach agreement on the basis of the Judgment just rendered by the Court.
Following the delivery of the Judgment, the Parties have regularly informed the Court on the progress of negotiations. On September 8, 2007, the Presidents of the Republic of Uganda the DRC concluded an Agreement on Bilateral Co-operation, Article 8 of which provided for the establishment of an ad hoc committee, composed of not more than seven members nominated by each Party, to study the Judgment rendered by the Court and to make recommendations concerning reparation.
At a meeting on May 25, 2010 in Kampala, Uganda, the two States named their respective members of the ad hoc committee and agreed that that committee would adopt a work plan, rules of procedure and determine timeframes for completing its work. In addition, the DRC presented to the Ugandan delegation a document in which it provided its valuation of the damages it had suffered. In September 2012, the DRC and Uganda concluded an agreement establishing a work plan for the presentation of evidence in support of their respective claims.
On May 13 , 2015, deeming that the negotiations with Uganda on this question had failed, the DRC requested the Court to determine the amount of reparation owed by Uganda. While Uganda indicated that this request was premature, the Court, in an Order of 1 July 2015, observed that although the Parties had tried to settle the question directly, they had clearly been unable to reach an agreement.
It consequently fixed 6 January 2016 as the time-limit for the Parties to file their written pleadings on the question of reparations. By Orders of December 10, 2015, April 11, 2016 and 6 December 2016, the time-limit was extended to April 28, 2016, September 28, 2016 and February 6, 2018 respectively.