ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO: THE ICJ JUDGMENT IN
THE CONTEXT OF THE CURRENT PEACE PROCESS IN THE GREAT LAKES
REGION
A summary of a meeting of the International Law Discussion Group at Chatham House
on 27th January 2006; participants included lawyers, regional experts, academics and
representatives of NGOs and of UK Government Departments.
This summary is issued on the understanding that if any extract is used, Chatham
House should be credited, preferably with the date of the meeting.
Dr. Chaloka Beyani of the London School of Economics discussed the judgment of
the International Court of Justice (ICJ) of 19 December 2005, the peace process in the
region and the likely effects of the judgment on the peace process.
The background to the case
The background to the ICJ case goes back to the fall of President Habyarimana‘s
Government in Rwanda, and the resulting situation in Rwanda and its consequences for
the region. The DRC failed to deter incursions by the Interahamwe militia from its
territory into that of Rwanda. In addition, Congolese armed forces had attacked local
Tutsis (Banyamulenge) in Eastern DRC, an event which prompted Rwanda and Uganda
to give support to the rebel groups in the DRC in their fight against former President
Mobutu, as a way of neutralizing armed activities by the interahamwe and other armed
forces. When Mobutu fled, President Joseph Kabila assumed power in DRC with the
support of Rwanda and Uganda. However, tensions arose between Kabila and his
former allies, with Kabila calling for the withdrawal of foreign troops; thereafter he was
killed.
The ICJ judgment in the case of armed activities on the territory of the Congo
(Democratic Republic of the Congo (DRC) v. Uganda), 19 December 2005
The ICJ found that Uganda had breached several of its obligations under international
law and that the DRC had violated the Vienna Convention on Diplomatic Relations.
First, the Court stated that the principles of non-use of force in international relations and
of non-intervention were violated by Uganda, because of its occupation of Ituri (which is
an area the size of Germany) and its actively extending military, logistic, economic and
financial support to irregular forces having operated on the territory of the DRC. This is
an important finding of the Court because it is the first time an African country has been
held responsible for violating the principles of non-use of force and of non-intervention
because of its support to armed groups. This will be of importance in the peace process
in the region.
Second, the Court decided that numerous obligations under international humanitarian
law and human rights law had been breached by Uganda. The Court condemned the
conduct of Uganda’s armed forces which committed acts of torture and other forms of
inhuman treatment of the Congolese civilian population, failed to distinguish between
civilian and military targets, trained child soldiers and incited ethnic conflict and also the
failure of Uganda, as an occupying Power, to take measures to respect and ensure
respect for human rights and international humanitarian law in Ituri.
Uganda’s claim that it acted in self-defence was not accepted. First of all, the Court
considered that there was no proof justifying the claim. It went on to say that Uganda did
not report its action in purported self-defence to the Security Council and that it had
never claimed to have been the victim of an armed attack by the DRC, but rather by
armed groups operating in the DRC. On this issue, Judge Simma expressed his
disappointment that the ICJ failed to deal with the issue of self-defence against attacks
by armed groups, rather than by States. (The speaker remarked that for cases involving
the use of force, the ICJ tended to use the Nicaragua case as a precedent. This may be
an impediment to the flexibility of jurisprudence.)
Thirdly, although the ICJ found that there was no policy of looting in the Ugandan armed
forces, Uganda was held responsible for the illegal exploitation of Congolese natural
resources, because of its failure to prevent acts of looting, plundering and exploitation by
its armed forces and by armed groups in the region. As an occupying Power it had the
responsibility to prevent these groups from looting. This finding is important for the
peace process, because Uganda will no longer be able to claim that its exploitation of
Congolese natural resources was not illegal.
Finally, as regards Uganda’s counterclaim relating to the maltreatment by the DRC of
diplomats and foreign nationals at Ndjili International Airport on 20 August 1998, the
Court upheld the claim with regard to the diplomats but found that Uganda could invoke
a breach of the Vienna Convention on Diplomatic Relations only for the diplomats. For
other nationals it would have to rely on diplomatic protection, but because it had not
been proven that those who were maltreated had Ugandan nationality, this claim was
denied.
The Court found that the DRC had violated obligations owed to the Republic of Uganda
under the Vienna Convention on Diplomatic Relations of 1961. First, armed forces of the
DRC attacked the Ugandan Embassy in Kinshasa, maltreated Ugandan diplomats and
other individuals on the Embassy premises as well as Ugandan diplomats at Ndjili
International Airport. Second, the DRC failed to provide the Ugandan Embassy and
Ugandan diplomats with effective protection and Ugandan property from being seized
from the Embassy.
Reparations have to be made for all damages caused by these violations of international
law. Since the ICJ has not made a specific award of reparations this may prove to be an
obstacle in negotiations between Uganda and the DRC.
The peace process in the Great Lakes Region
The peace process in the Great Lakes region started with the Victoria Falls Summit and
the Lusaka Ceasefire Agreements.
The International Conference for the Great Lakes Region
An International Conference on Peace, Security, Democracy and Development in the
Great Lakes Region, with 15 Member States, has been established. There is also a
supportive group of Friends for the Great Lakes Region, co-chaired by Canada and the
Netherlands, to provide political, diplomatic, technical and financial assistance to the
process.
At the end of 2004 the first Summit of Heads of State and Government of the
International Conference was concluded with the adoption of the Dar es Salaam
Declaration on Peace, Security, Democracy and Development in the Great Lakes
region, which entered into force upon signature.
The 2004 Dar es Salaam Declaration of the International Conference
The process under the Declaration consists of four clusters and is accompanied by draft
protocols and projects, which elaborate on the undertakings of the parties. The first and
major cluster under the Declaration is concerned with peace and security. In this part of
the Declaration the Parties commit themselves to fully support the national peace
processes, to strengthen bilateral and regional cooperation, to ensure security at
common borders within the context of trans -border proximity management strategies in
consultation with local populations and to work for the disarmament of armed groups.
The protocols that are currently being prepared by the Parties to supplement this cluster
deal with non-aggression, mutual self-defense and peaceful resolution of conflicts.
The second cluster under the Declaration is about democracy and good governance. It
embodies the commitments of the Parties to good governance standards, democracy,
human rights as well as their desire to prevent genocide. Democracy is seen as an
important part of the peace process, as it will enable previously armed groups to
participate in a democratic way. Protocols on democracy, good governance and
genocide are being drafted.
The third part of the Declaration deals with economic development and reconstruction. A
protocol on the illegal exploitation of natural resources is currently being negotiated, but
the issue is still highly controversial. Besides that, there are projects on infrastructure.
The fourth cluster, on social and humanitarian issues, is concerned with the social
consequences of armed conflicts in the region. A major concern of the cluster is to
ensure that Member States comply with their obligations with respect to human rights
and international humanitarian law and the rights of refugees. Protocols on prevention
and suppression of sexual violence against women and children (criminal responsibility
for sexual violence, genocide, war crimes and crimes against humanity), the protection
of internally displaced persons, and the property rights of returning populations will
supplement this fourth cluster. Moreover there are projects on compliance with
international human rights instruments and adherence to international humanitarian law
on the one hand and the issue of stateless persons, refugees and internally displaced
persons on the other hand.
Finally, the declaration provides for the establishment of a zone for peace, economic
development and reconstruction, in which all use of force is to be outlawed.
Structure of the International Conference
The Conference consists of different organs, which negotiate at different levels. First,
there are the national experts. Then there are regional preparatory committees,
composed of the ambassadors of the different countries involved. On a regional level,
meetings are convened by the regional coordinators. On a higher level there is the inter-
ministerial group and at the top of the conference there is the summit of Heads of States,
the second one of which will probably take place in June 2006, although it may be
postponed because of this year’s elections in the DRC.
Comprehensive nature of the peace process
Unlike most peace processes, which are bilateral and ad hoc, the peace process in the
Great Lakes region is of a far more comprehensive nature. An International Conference
and a Group of Friends for the Great Lakes are already working on the implementation
of the peace process, and it is intended to establish a long-term Secretariat and Centre
for Democracy and Human Rights. Besides that, meetings with regional
parliamentarians and the private sector have been organized as an integral part of the
peace process.
Some complications for the peace process
Because of the armed forces in the DRC not yet being integrated and several Ministers
of the DRC being affiliated to different groups, peace negotiations may become
polarized.
Another complication for the peace process is that the countries in the region have
different legal backgrounds. It means an understanding is needed between common law
and civil law systems, which is sometimes further complicated because of differences
between the authentic French and English versions of legal texts.
Reactions of Uganda and the DRC to the ICJ judgment
In spite of one or two statements to the contrary, Uganda officially accepts the judgment
and is willing to start negotiations on reparations with the DRC. The DRC considers the
judgment a vindication rather than a triumph; a confirmation that it had always been right
to claim grave violations of international law by Uganda.
The DRC asked for 10 to 15 billion dollars of damages, which is excessive according to
Uganda. The negotiations on reparation have not started yet and both States would
probably rather wait until after the elections. If they fail to reach an agreement, the
amount of reparation will be determined by the court.
A participant made the remark that the Ugandan Government publicly rejected the
decision of the court in the beginning of January, saying the judges were biased and the
judgment was full of lies and that they would not pay reparation to the DRC. He added
that implementation of the judgment was not a priority for the DRC either, because of the
election that will soon take place there. According to him the impact of the judgment on
the peace process in the region should therefore not be overestimated.
The speaker’s response to this was that we should focus on Uganda’s official message,
which calmly and briefly accepted the judgment. Subsequent more nationalist
statements can most likely be attributed to ‘election fever’ because of the elections that
will soon take place in Uganda. If, nevertheless negotiations falter on the issue of
reparations, it is likely that the DRC will bring the case back to the ICJ.
Importance of the ICJ decision for the peace process
It is important to note that a comprehensive settlement is needed and that the ICJ can
only deal with legal issues, as it emphasized itself in the judgment. The ICJ decision
cannot be separated from the broader process which it is part of, but it may be an
incentive for, regional agreements between the parties.
This decision clearly establishes the responsibility of Uganda in the conflict in the DRC
This may l make the DRC feel more confident in the negotiations. The conflict will no
longer be seen as an internal conflict in the DRC and the forces standing behind the
armed groups will have to be involved in the peace negotiations. The immediate impact
of the judgment on the ground is not clear, but at least the different parties in the conflict
are negotiating a solution now.
Equally important is that the ICJ decision restores the principle of legality. It reinforces
the principles of the prohibition of use of force and of non-intervention, as well as
international humanitarian law and human rights law. The ICJ clearly condemns the
support of States to armed groups in fighting another State.
One of the participants asked whether concerns existed about a negative influence of
the judgment on the peace process (as with the Advisory Opinion of the ICJ on the
construction of the Wall by Israel) or whether both would be complementary. The
speaker agreed that there had been concerns about a possible detrimental effect of the
decision on the peace process, but emphasized that Uganda had accepted the decision
and that both people and politicians in the region wanted peace to be established.
Another participant questioned the timing of ICJ judgments because this one is delivered
during election time which is a fragile moment. The speaker responded that the ICJ does
not take external elements into account in timing its judgments. However, to a certain
extent the parties in a case can influence the timing of the judgment.
Discussion
One of the participants was concerned with the problem of looting in the DRC. He cited
the Arabic saying “Abandoned treasures teach looting” and referred to the immense
wealth and the poverty of its neighboring states. The speaker replied that economic
problems in neighboring countries are indeed likely to create problems, but that there is
also a problem of looting within the DRC itself, both by national corporations and by its
leaders (for decades). As regards the first problem, he added that a monitoring system
may help prevent looting, if such a system will be provided for. As regards domestic
looting, part of the problem is the lack of an equitable system for the distribution of
resources. He suggested that a less centralized system may be of some help and will
probably be considered after the elections. He added that the Congo always relies on
the principle of permanent sovereignty over its natural resources.
There was a discussion as to whether the ICJ was the appropriate forum to deal with
these kinds of issues. But there is no other viable forum for such disputes, and countries
do choose to go to the ICJ. This judgment and the law cited in it may have implications
in other situations related to the use of force; ICJ cases are sometimes being cited in
domestic courts as well.
According to one of the participants the court had become stronger and stronger and
was not afraid to deliver a judgment even when the parties may not accept it. On the
other hand, for the parties a peace process as a whole is more important than an ICJ
judgment as such. It sometimes happens that conflicting parties take a case to court,
ignore the judgment and find a solution to their dispute themselves. The judgment is part
of the process rather than the solution.