          INTERNATIONAL COURT OF JUSTICE

           REPORTS OF JUDGMENTS,
        ADVISORY OPINIONS AND ORDERS

 CASE CONCERNING ARMED ACTIVITIES
  ON THE TERRITORY OF THE CONGO
 (DEMOCRATIC REPUBLIC OF THE CONGO v. UGANDA)

         JUDGMENT OF 19 DECEMBER 2005

                 2005
          COUR INTERNATIONALE DE JUSTICE

             RECUEIL DES ARRE| TS,
      AVIS CONSULTATIFS ET ORDONNANCES

    AFFAIRE DES ACTIVITE
                       u S ARME
                              u ES
     SUR LE TERRITOIRE DU CONGO
(RE
  u PUBLIQUE DE
              u MOCRATIQUE DU CONGO c. OUGANDA)

           ARRE
              | T DU 19 DE
                         u CEMBRE 2005

                         Official citation :
          Armed Activities on the Territory of the Congo
          (Democratic Republic of the Congo v. Uganda),
              Judgment, I.C.J. Reports 2005, p. 168

                     Mode officiel de citation :
            Activités armées sur le territoire du Congo
         (République démocratique du Congo c. Ouganda),
                 arrêt, C.I.J. Recueil 2005, p. 168

                                          Sales number
ISSN 0074-4441
ISBN 92-1-071016-9
                                          No de vente :    908

                                19 DECEMBER 2005

                                   JUDGMENT

               ARMED ACTIVITIES
        ON THE TERRITORY OF THE CONGO
 (DEMOCRATIC REPUBLIC OF THE CONGO v. UGANDA)

               ACTIVITE
                      u S ARME
                             u ES
          SUR LE TERRITOIRE DU CONGO
(RE
  u PUBLIQUE DE
              u MOCRATIQUE DU CONGO c. OUGANDA)

                                19 DE
                                    u CEMBRE 2005

                                       ARRE
                                          |T

               168

                               INTERNATIONAL COURT OF JUSTICE

    2005                                         YEAR 2005
19 December
General List
  No. 116                                     19 December 2005

                    CASE CONCERNING ARMED ACTIVITIES
                     ON THE TERRITORY OF THE CONGO
                    (DEMOCRATIC REPUBLIC OF THE CONGO v. UGANDA)

                   Situation in the Great Lakes region — Task of the Court.

                                                    * * *
                 Issue of consent.
                 The DRC consented to presence of Ugandan troops in eastern border area in
               period preceding August 1998 — Protocol on Security along the Common Bor-
               der of 27 April 1998 between the DRC and Uganda — No particular formalities
               required for withdrawal of consent by the DRC to presence of Ugandan troops —
               Ambiguity of statement by President Kabila published on 28 July 1998 — Any
               prior consent withdrawn at latest by close of Victoria Falls Summit on 8 August
               1998.

                                                       *
                   Findings of fact concerning Uganda’s use of force in respect of Kitona.

                 Denial by Uganda that it was involved in military action at Kitona on
               4 August 1998 Assessment of evidentiary materials in relation to events at
               Kitona — Deficiencies in evidence adduced by the DRC — Not established to
               the Court’s satisfaction that Uganda participated in attack on Kitona.

                                                       *
                 Findings of fact concerning military action in the east of the DRC and in
               other areas of that country.
                 Determination by the Court of facts as to Ugandan presence at, and taking

               4

169                    ARMED ACTIVITIES (JUDGMENT)

of, certain locations in the DRC — Assessment of evidentiary materials —
Sketch-map evidence — Testimony before Porter Commission — Statements
against interest — Establishment of locations taken by Uganda and correspond-
ing “dates of capture”.

                                       *
  Did the Lusaka, Kampala and Harare Agreements constitute any consent of
the DRC to the presence of Ugandan troops ?
  Contention of Uganda that the Lusaka, Kampala and Harare Agreements
constituted consent to presence of Ugandan forces on Congolese territory —
Nothing in provisions of Lusaka Agreement can be interpreted as affirmation
that security interests of Uganda had already required the presence of Ugandan
forces on territory of the DRC as from September 1998 — Lusaka Agreement
represented an agreed modus operandi for the parties, providing framework for
orderly withdrawal of all foreign forces from the DRC — The DRC did not
thereby recognize situation on ground as legal — Kampala and Harare Dis-
engagement Plans did not change legal status of presence of Ugandan troops —
Luanda Agreement authorized limited presence of Ugandan troops in border
area — None of the aforementioned Agreements (save for limited exception in
the Luanda Agreement) constituted consent by the DRC to presence of Ugan-
dan troops on Congolese territory for period after July 1999.

                                       *
   Self-defence in light of proven facts.
   Question of whether Ugandan military action in the DRC from early August
1998 to July 1999 could be justified as action in self-defence — Ugandan High
Command document of 11 September 1998 — Testimony before Porter Com-
mission of Ugandan Minister of Defence and of commander of Ugandan forces
in the DRC — Uganda regarded military events of August 1998 as part of
operation “Safe Haven” — Objectives of operation “Safe Haven”, as stated in
Ugandan High Command document, not consonant with concept of self-
defence — Examination of claim by Uganda of existence of tripartite anti-
Ugandan conspiracy between the DRC, the ADF and the Sudan — Evidence
adduced by Uganda lacking in relevance and probative value Article 51 of the
United Nations Charter — No report made by Uganda to Security Council of
events requiring it to act in self-defence — No claim by Uganda that it had been
subjected to armed attack by armed forces of the DRC — No satisfactory proof
of involvement of Government of the DRC in alleged ADF attacks on Uganda —
Legal and factual circumstances for exercise of right of self-defence by Uganda
not present.

                                       *
5

170                    ARMED ACTIVITIES (JUDGMENT)

   Findings of law on the prohibition against the use of force.
   Article 2, paragraph 4, of United Nations Charter — Security Council reso-
lutions 1234 (1999) and 1304 (2000) — No credible evidence to support allega-
tion by DRC that MLC was created and controlled by Uganda — Obligations
arising under principles of non-use of force and non-intervention violated by
Uganda — Unlawful military intervention by Uganda in the DRC constitutes
grave violation of prohibition on use of force expressed in Article 2, para-
graph 4, of Charter.

                                     *       *
   The issue of belligerent occupation.
   Definition of occupation — Examination of evidence relating to the status of
Uganda as occupying Power — Creation of new province of “Kibali-Ituri” by
commander of Ugandan forces in the DRC — No specific evidence provided by
the DRC to show that authority exercised by Ugandan armed forces in any
areas other than in Ituri — Contention of the DRC that Uganda indirectly con-
trolled areas outside Ituri administered by Congolese rebel groups not upheld by
the Court — Uganda was the occupying Power in Ituri — Obligations of
Uganda.

                                     *       *
   Violations of international human rights law and international humanitarian
law : contentions of the Parties.
   Contention of the DRC that Ugandan armed forces committed wide-scale
human rights violations on Congolese territory, particularly in Ituri — Conten-
tion of Uganda that the DRC has failed to provide any credible evidentiary basis
to support its allegations.

                                         *
  Admissibility of claims in relation to events in Kisangani.
  Contention of Uganda that the Court lacks competence to deal with events in
Kisangani in June 2000 in the absence of Rwanda — Jurisprudence contained in
Certain Phosphate Lands in Nauru case applicable in current proceedings —
Interests of Rwanda do not constitute “the very subject-matter” of decision to
be rendered by the Court — The Court is not precluded from adjudicating on
whether Uganda’s conduct in Kisangani is a violation of international law.

                                         *
   Violations of international human rights law and international humanitarian
law : findings of the Court.
   Examination of evidence relating to violations of international human
rights law and international humanitarian law — Findings of fact — Conduct
of UPDF and of officers and soldiers of UPDF attributable to Uganda —
Irrelevant whether UPDF personnel acted contrary to instructions given or

6

171                     ARMED ACTIVITIES (JUDGMENT)

exceeded their authority — Applicable law — Violations of specific obliga-
tions under Hague Regulations of 1907 binding as customary international
law — Violations of specific provisions of international humanitarian law and
international human rights law instruments — Uganda is internationally
responsible for violations of international human rights law and international
humanitarian law.

                                      *       *
   Illegal exploitation of natural resources.
   Contention of the DRC that Ugandan troops systematically looted and
exploited the assets and natural resources of the DRC — Contention of Uganda
that the DRC has failed to provide reliable evidence to corroborate its allega-
tions.

                                          *
  Findings of the Court concerning acts of illegal exploitation of natural
resources.
  Examination of evidence relating to illegal exploitation of Congolese natural
resources by Uganda — Findings of fact — Conduct of UPDF and of officers
and soldiers of UPDF attributable to Uganda — Irrelevant whether UPDF per-
sonnel acted contrary to instructions given or exceeded their authority — Appli-
cable law — Principle of permanent sovereignty over natural resources not
applicable to this situation — Illegal acts by UPDF in violation of the jus in
bello — Violation of duty of vigilance by Uganda with regard to illegal acts of
UPDF — No violation of duty of vigilance by Uganda with regard to illegal acts
of rebel groups outside Ituri — International responsibility of Uganda for acts
of its armed forces — International responsibility of Uganda as an occupying
Power.

                                      *       *
    Legal consequences of violations of international obligations by Uganda.

  The DRC’s request that Uganda cease continuing internationally wrongful
acts — No evidence to support allegations with regard to period after 2 June
2003 — Not established that Uganda continues to commit internationally
wrongful acts specified by the DRC — The DRC’s request cannot be upheld.

  The DRC’s request for specific guarantees and assurances of non-repetition of
the wrongful acts — Tripartite Agreement on Regional Security in the Great
Lakes of 26 October 2004 — Commitments assumed by Uganda under the Tri-
partite Agreement meet the DRC’s request for specific guarantees and assur-
ances of non-repetition — Demand by the Court that the Parties respect their
obligations under that Agreement and under general international law.

7

172                    ARMED ACTIVITIES (JUDGMENT)

   The DRC’s request for reparation — Obligation to make full reparation for
the injury caused by an international wrongful act — Internationally wrongful
acts committed by Uganda resulted in injury to the DRC and persons on its ter-
ritory — Uganda’s obligation to make reparation accordingly — Question of
reparation to be determined by the Court, failing agreement between the Parties,
in a subsequent phase of the proceedings.

                                      *   *
  Compliance with the Court’s Order on provisional measures.
  Binding effect of the Court’s orders on provisional measures — No specific
evidence demonstrating violations of the Order of 1 July 2000 — The Court’s
previous findings of violations by Uganda of its obligations under international
human rights law and international humanitarian law until final withdrawal of
Ugandan troops on 2 June 2003 — Uganda did not comply with the Court’s
Order on provisional measures of 1 July 2000 — This finding is without preju-
dice to the question as to whether the DRC complied with the Order.

                                     * * *
  Counter-claims : admissibility of objections.
  Question of whether the DRC is entitled to raise objections to admissibility of
counter-claims at current stage of proceedings — The Court’s Order of
29 November 2001 only settled question of a “direct connection” within the
meaning of Article 80 — Question of whether objections raised by the DRC are
inadmissible because they fail to conform to Article 79 of the Rules of Court —
Article 79 inapplicable to the case of an objection to counter-claims joined to
the original proceedings — The DRC is entitled to challenge admissibility of
Uganda’s counter-claims.

                                      *   *
   First counter-claim.
   Contention of Uganda that the DRC supported anti-Ugandan irregular
forces — Division of Uganda’s first counter-claim into three periods by the
DRC : prior to May 1997, from May 1997 to 2 August 1998 and subsequent to
2 August 1998 — No obstacle to examining the first counter-claim following the
three periods of time and for practical purposes useful to do so — Admissibility
of part of first counter-claim relating to period prior to May 1997 — Waiver of
right must be express or unequivocal — Nothing in conduct of Uganda can be
considered as implying an unequivocal waiver of its right to bring a counter-
claim relating to events which occurred during the Mobutu régime — The long
period of time between events during the Mobutu régime and filing of Uganda’s
counter-claim has not rendered inadmissible Uganda’s first counter-claim for the
period prior to May 1997 — No proof that Zaire provided political and military
support to anti-Ugandan rebel groups — No breach of duty of vigilance by
Zaire — No evidence of support for anti-Ugandan rebel groups by the DRC in
the second period — Any military action taken by the DRC against Uganda in
the third period could not be deemed wrongful since it would be justified as

8

173                     ARMED ACTIVITIES (JUDGMENT)

action in self-defence — No evidence of support for anti-Ugandan rebel groups
by the DRC in the third period.

                                      *   *
   Second counter-claim.
   Contention of Uganda that Congolese armed forces attacked the premises of
the Ugandan Embassy, maltreated diplomats and other Ugandan nationals
present on the premises and at Ndjili International Airport — Objections by the
DRC to the admissibility of the second counter-claim — Contention of the DRC
that the second counter-claim is not founded — Admissibility of the second
counter-claim — Uganda is not precluded from invoking the Vienna Convention
on Diplomatic Relations — With regard to diplomats Uganda claims its own
rights under the Vienna Convention on Diplomatic Relations — Substance of
the part of the counter-claim relating to acts of maltreatment against other per-
sons on the premises of the Embassy falls within the ambit of Article 22 of the
Vienna Convention on Diplomatic Relations — The part of the counter-claim
relating to maltreatment of persons not enjoying diplomatic status at Ndjili
International Airport is based on diplomatic protection — No evidence of Ugan-
dan nationality of persons in question — Sufficient evidence to prove attacks
against the Embassy and maltreatment of Ugandan diplomats — Property and
archives removed from Ugandan Embassy — Breaches of the Vienna Conven-
tion on Diplomatic Relations.

   The DRC bears responsibility for violation of international law on diplomatic
relations — Question of reparation to be determined by the Court, failing agree-
ment between the Parties, in a subsequent phase of the proceedings.

                                 JUDGMENT

Present : President SHI; Vice-President RANJEVA; Judges KOROMA,
          VERESHCHETIN, HIGGINS, PARRA-ARANGUREN, KOOIJMANS, REZEK,
          AL-KHASAWNEH, BUERGENTHAL, ELARABY, OWADA, SIMMA, TOMKA,
          ABRAHAM; Judges ad hoc VERHOEVEN, KATEKA; Registrar COUVREUR.

    In the case concerning armed activities on the territory of the Congo,
    between

9

174                    ARMED ACTIVITIES (JUDGMENT)

the Democratic Republic of the Congo,
represented by
  H.E. Mr. Honorius Kisimba Ngoy Ndalewe, Minister of Justice, Keeper of
     the Seals of the Democratic Republic of the Congo,
  as Head of Delegation ;
  H.E. Mr. Jacques Masangu-a-Mwanza, Ambassador Extraordinary and
     Plenipotentiary to the Kingdom of the Netherlands,
  as Agent ;
  Maître Tshibangu Kalala, member of the Kinshasa and Brussels Bars,
  as Co-Agent and Advocate ;
  Mr. Olivier Corten, Professor of International Law, Université libre de
     Bruxelles,
  Mr. Pierre Klein, Professor of International Law, Director of the Centre for
     International Law, Université libre de Bruxelles,
  Mr. Jean Salmon, Professor Emeritus, Université libre de Bruxelles, Member
     of the Institute of International Law and of the Permanent Court of Arbi-
     tration,
  Mr. Philippe Sands, Q.C., Professor of Law, Director of the Centre for Inter-
     national Courts and Tribunals, University College London,
  as Counsel and Advocates ;
  Maître Ilunga Lwanza, Deputy Directeur de cabinet and Legal Adviser, cabi-
     net of the Minister of Justice, Keeper of the Seals,
  Mr. Yambu A. Ngoyi, Chief Adviser to the Vice-Presidency of the Republic,

  Mr. Mutumbe Mbuya, Legal Adviser, cabinet of the Minister of Justice,
    Keeper of the Seals,
  Mr. Victor Musompo Kasongo, Private Secretary to the Minister of Justice,
    Keeper of the Seals,
  Mr. Nsingi-zi-Mayemba, First Counsellor, Embassy of the Democratic
    Republic of the Congo in the Kingdom of the Netherlands,
  Ms Marceline Masele, Second Counsellor, Embassy of the Democratic
    Republic of the Congo in the Kingdom of the Netherlands,
  as Advisers ;
  Maître Mbambu wa Cizubu, member of the Kinshasa Bar, Tshibangu and
    Partners,
  Mr. François Dubuisson, Lecturer, Université libre de Bruxelles,

  Maître Kikangala Ngole, member of the Brussels Bar,
  Ms Anne Lagerwal, Assistant, Université libre de Bruxelles,
  Ms Anjolie Singh, Assistant, University College London, member of the
    Indian Bar,
  as Assistants,
  and
the Republic of Uganda,
represented by
  The Honourable E. Khiddu Makubuya S.C., M.P., Attorney General of the
     Republic of Uganda,

10

175                     ARMED ACTIVITIES (JUDGMENT)

  as Agent, Counsel and Advocate ;
  Mr. Lucian Tibaruha, Solicitor General of the Republic of Uganda,
  as Co-Agent, Counsel and Advocate ;
  Mr. Ian Brownlie, C.B.E, Q.C., F.B.A., member of the English Bar, member
    of the International Law Commission, Emeritus Chichele Professor of
    Public International Law, University of Oxford, Member of the Institute
    of International Law,
  Mr. Paul S. Reichler, Foley Hoag LLP, Washington D.C., member of the
    Bar of the United States Supreme Court, member of the Bar of the District
    of Columbia,
  Mr. Eric Suy, Emeritus Professor, Catholic University of Leuven, former
    Under-Secretary-General and Legal Counsel of the United Nations, Mem-
    ber of the Institute of International Law,
  The Honourable Amama Mbabazi, Minister of Defence of the Republic of
    Uganda,
  Major General Katumba Wamala, Inspector General of Police of the
    Republic of Uganda,
  as Counsel and Advocates ;
  Mr. Theodore Christakis, Professor of International Law, University of
    Grenoble II (Pierre Mendès France),
  Mr. Lawrence H. Martin, Foley Hoag LLP, Washington D.C., member of
    the Bar of the District of Columbia,
  as Counsel ;
  Captain Timothy Kanyogonya, Uganda People’s Defence Forces,

  as Adviser,

  THE COURT,
  composed as above,
  after deliberation,
  delivers the following Judgment :
   1. On 23 June 1999, the Democratic Republic of the Congo (hereinafter “the
DRC”) filed in the Registry of the Court an Application instituting proceedings
against the Republic of Uganda (hereinafter “Uganda”) in respect of a dispute
concerning “acts of armed aggression perpetrated by Uganda on the territory
of the Democratic Republic of the Congo, in flagrant violation of the United
Nations Charter and of the Charter of the Organization of African Unity”
(emphasis in the original).
   In order to found the jurisdiction of the Court, the Application relied on the
declarations made by the two Parties accepting the Court’s compulsory juris-
diction under Article 36, paragraph 2, of the Statute of the Court.
   2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
immediately communicated to the Government of Uganda by the Registrar ;
and, pursuant to paragraph 3 of that Article, all States entitled to appear
before the Court were notified of the Application.
   3. By an Order of 21 October 1999, the Court fixed 21 July 2000 as the time-
limit for the filing of the Memorial of the DRC and 21 April 2001 as the time-

11

176                     ARMED ACTIVITIES (JUDGMENT)

limit for the filing of the Counter-Memorial of Uganda. The DRC filed its
Memorial within the time-limit thus prescribed.
   4. On 19 June 2000, the DRC submitted to the Court a request for the indi-
cation of provisional measures pursuant to Article 41 of the Statute of the
Court. By an Order dated 1 July 2000, the Court, after hearing the Parties, indi-
cated certain provisional measures.
   5. Uganda filed its Counter-Memorial within the time-limit fixed for that
purpose by the Court’s Order of 21 October 1999. That pleading included
counter-claims.
   6. Since the Court included upon the Bench no judge of the nationality of
the Parties, each Party availed itself of its right under Article 31 of the Statute
of the Court to choose a judge ad hoc to sit in the case. By a letter of 16 August
2000 the DRC notified the Court of its intention to choose Mr. Joe Verhoeven
and by a letter of 4 October 2000 Uganda notified the Court of its intention to
choose Mr. James L. Kateka. No objections having been raised, the Parties
were informed by letters dated 26 September 2000 and 7 November 2000,
respectively, that the case file would be transmitted to the judges ad hoc accord-
ingly.
   7. At a meeting held by the President of the Court with the Agents of the
Parties on 11 June 2001, the DRC, invoking Article 80 of the Rules of Court,
raised certain objections to the admissibility of the counter-claims set out in the
Counter-Memorial of Uganda. During that meeting the two Agents agreed that
their respective Governments would file written observations on the question of
the admissibility of the counter-claims ; they also agreed on the time-limits for
that purpose.
   On 28 June 2001, the Agent of the DRC filed his Government’s written
observations on the question of the admissibility of Uganda’s counter-claims,
and a copy of those observations was communicated to the Ugandan Govern-
ment by the Registrar. On 15 August 2001, the Agent of Uganda filed his
Government’s written observations on the question of the admissibility of the
counter-claims set out in Uganda’s Counter-Memorial, and a copy of those
observations was communicated to the Congolese Government by the First
Secretary of the Court, Acting Registrar. On 5 September 2001, the Agent of
the DRC submitted his Government’s comments on Uganda’s written obser-
vations, a copy of which was transmitted to the Ugandan Government by the
Registrar.
   Having received detailed written observations from each of the Parties, the
Court considered that it was sufficiently well informed of their respective posi-
tions with regard to the admissibility of the counter-claims.
   8. By an Order of 29 November 2001, the Court held that two of the three
counter-claims submitted by Uganda in its Counter-Memorial were admissible
as such and formed part of the current proceedings, but that the third was not.
It also directed the DRC to file a Reply and Uganda to file a Rejoinder,
addressing the claims of both Parties, and fixed 29 May 2002 and 29 November
2002 as the time-limits for the filing of the Reply and the Rejoinder respec-
tively. Lastly, the Court held that it was necessary, “in order to ensure strict
equality between the Parties, to reserve the right of the Congo to present its
views in writing a second time on the Ugandan counter-claims, in an additional
pleading which [might] be the subject of a subsequent Order”. The DRC duly
filed its Reply within the time-limit prescribed for that purpose.

  9. By an Order of 7 November 2002, at the request of Uganda, the Court

12

177                    ARMED ACTIVITIES (JUDGMENT)

extended the time-limit for the filing of the Rejoinder of Uganda to 6 December
2002. Uganda duly filed its Rejoinder within the time-limit as thus extended.

   10. By a letter dated 6 January 2003, the Co-Agent of the DRC, referring to
the above-mentioned Order of 29 November 2001, informed the Court that
his Government wished to present its views in writing a second time on the
counter-claims of Uganda, in an additional pleading. By an Order of 29 January
2003 the Court, taking account of the agreement of the Parties, authorized the
submission by the DRC of an additional pleading relating solely to the counter-
claims submitted by Uganda and fixed 28 February 2003 as the time-limit for
the filing of that pleading. The DRC duly filed the additional pleading within
the time-limit as thus fixed and the case became ready for hearing.

   11. At a meeting held by the President of the Court with the Agents of the
Parties on 24 April 2003, the Agents presented their views on the organization
of the oral proceedings on the merits. Pursuant to Article 54, paragraph 1, of
the Rules, the Court fixed 10 November 2003 as the date for the opening of the
oral proceedings. The Registrar informed the Parties accordingly by letters of
9 May 2003.
   12. Pursuant to the instructions of the Court under Article 43 of the Rules of
Court, the Registry sent the notification referred to in Article 63, paragraph 1,
of the Statute to all States parties to the Chicago Convention on International
Civil Aviation of 7 December 1944, the Fourth Geneva Convention relative to
the Protection of Civilian Persons in Time of War of 12 August 1949, the Addi-
tional Protocol I of 8 June 1977 to the Geneva Conventions of 12 August 1949,
the Vienna Convention on Diplomatic Relations of 18 April 1961, the Interna-
tional Covenant on Civil and Political Rights of 19 December 1966, the African
Charter on Human and Peoples’ Rights of 27 June 1981 and the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Pun-
ishment of 10 December 1984.

   Pursuant to the instructions of the Court under Article 69, paragraph 3, of
the Rules of Court, the Registry addressed the notifications provided for in
Article 34, paragraph 3, of the Statute and communicated copies of the written
proceedings to the Secretary-General of the United Nations in respect of the
International Covenant on Civil and Political Rights and the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Pun-
ishment ; the Secretary-General of the International Civil Aviation Organiza-
tion in respect of the Chicago Convention on International Civil Aviation ; and
the President of the African Union’s Commission in respect of the African
Charter on Human and Peoples’ Rights. The respective organizations were also
asked whether they intended to present written observations within the mean-
ing of Article 69, paragraph 3, of the Rules of Court. None of those organiza-
tions expressed a wish to submit any such observations.

   13. By a letter dated 2 October 2003 addressed to the Registry, the Agent of
the DRC requested that Uganda provide the DRC with a number of case-
related documents which were not in the public domain. Copies of the requested
documents were received in the Registry on 17 October 2003 and transmitted
to the Agent of the DRC. By a letter dated 13 October 2003 addressed to the
Registry, the Agent of Uganda asked the DRC to furnish certain documents
relevant to the issues in the case that were not in the public domain. Copies of

13

178                    ARMED ACTIVITIES (JUDGMENT)

the requested documents were received in the Registry on 31 October 2003 and
transmitted to the Agent of Uganda. On 5 November 2003, the Registrar
informed the Parties by letter that the Court had decided that those documents
did not form part of the case file and that accordingly, pursuant to paragraph 4
of Article 56, they should not be referred to in oral argument, except to the
extent that they “form[ed] part of a publication readily available”.
   14. On 17 October 2003, the Agent of Uganda informed the Court that his Gov-
ernment wished to submit 24 new documents, in accordance with Article 56
of the Rules of Court. As provided for in paragraph 1 of that Article, those
documents were communicated to the DRC. On 29 October 2003, the Agent
of the DRC informed the Court that his Government did not intend to raise
any objection to the production of those new documents by Uganda. By
letters of 5 November 2003, the Registrar informed the Parties that the Court
had taken note that the DRC had no objection to the production of the 24 new
documents and that counsel would be free to make reference to them in the
course of oral argument.
   15. On 17 October 2003, the Agent of Uganda further informed the Court
that his Government wished to call two witnesses in accordance with Article 57
of the Rules of Court. A copy of the Agent’s letter and the attached list of wit-
nesses was transmitted to the Agent of the DRC, who conveyed to the Court
his Government’s opposition to the calling of those witnesses. On 5 November
2003, the Registrar informed the Parties by letter that the Court had decided
that it would not be appropriate, in the circumstances, to authorize the calling
of those two witnesses by Uganda.
   16. On 20 October 2003, the Agent of Uganda informed the Court that his
Government wished, in accordance with Article 56 of the Rules of Court, to
add two further documents to its request to produce 24 new documents in the
case. As provided for in paragraph 1 of that Article, those documents were
communicated to the DRC. On 6 November 2003, the Agent of the DRC
informed the Court that his Government had no specific comments to make
with regard to the additional two documents.
   On 5 November 2003, the Agent of the DRC made a formal application to
submit a “small number” of new documents in accordance with Article 56 of
the Rules of Court, and referred to the Court’s Practice Direction IX. As pro-
vided for in paragraph 1 of Article 56, those documents were communicated to
Uganda. On 5 November 2003, the Agent of Uganda indicated that his
Government did not object to the submission of the new documents by the
DRC.
   By letters dated 12 November 2003, the Registrar informed the Parties that
the Court had taken note, firstly, that the DRC did not object to the produc-
tion of the two further new documents which Uganda sought to produce in
accordance with Article 56 of the Rules of Court, and secondly, that Uganda
had no objection to the production of the documents submitted by the DRC on
5 November 2003, and that counsel would be free to quote from both sets of
documents during the oral proceedings.
   17. On 5 November 2003, the Agent of the DRC enquired whether it might
be possible to postpone to a later date, in April 2004, the opening of the
hearings in the case originally scheduled for 10 November 2003, “so as to per-
mit the diplomatic negotiations engaged by the Parties to be conducted in an
atmosphere of calm”. By a letter of 6 November 2003, the Agent of Uganda
informed the Court that his Government “supporte[d ]the proposal and
adopt[ed] the request”.

14

179                    ARMED ACTIVITIES (JUDGMENT)

   On 6 November 2003, the Registrar informed both Parties by letter that the
Court, “taking account of the representations made to it by the Parties, [had]
decided to postpone the opening of the oral proceedings in the case” and that
the new date for the opening of the oral proceedings would be fixed in due
course. By a letter of 9 September 2004, the Agent of the DRC formally
requested that the Court fix a new date for the opening of the oral proceedings.
By letters of 20 October 2004, the Registrar informed the Parties that the Court
had decided, in accordance with Article 54 of the Rules of Court, to fix
Monday 11 April 2005 for the opening of the oral proceedings in the case.
   18. On 1 February 2005, the Agent of the DRC informed the Court that his
Government wished to produce certain new documents, in accordance with
Article 56 of the Rules of Court. As provided for in paragraph 1 of that Article,
those documents were communicated to Uganda. On 16 February 2005, the
Co-Agent of Uganda informed the Court that his Government did not intend
to raise any objection to the production of one of the new documents by the
DRC, and presented certain observations on the remaining documents. On
21 February 2005, the Registrar informed the Parties by letter that the Court
had decided to authorize the production of the document to which the Ugan-
dan Government had raised no objection, as well as the production of the other
documents. With regard to those other documents, which came from the Judi-
cial Commission of Inquiry into Allegations of Illegal Exploitation of Natural
Resources and Other Forms of Wealth in the Democratic Republic of the
Congo set up by the Ugandan Government in May 2001 and headed by Justice
David Porter (hereinafter “the Porter Commission”), the Parties were further
informed that the Court had noted, inter alia, that only certain of them were
new, whilst the remainder simply reproduced documents already submitted on
5 November 2003 and included in the case file.
   19. On 15 March 2005, the Co-Agent of Uganda provided the Registry with
a new document which his Government wished to produce under Article 56 of
the Rules of Court. No objection having been made by the Congolese Govern-
ment to the Ugandan request, the Registrar, on 8 April 2005, informed the
Parties that the Court had decided to authorize the production of the said
document.
   20. Pursuant to Article 53, paragraph 2, of the Rules, the Court, after ascer-
taining the views of the Parties, decided that copies of the pleadings and docu-
ments annexed would be made available to the public at the opening of the oral
proceedings.
   21. Public sittings were held from 11 April to 29 April 2005, at which the
Court heard the oral arguments and replies of :
For the DRC :    H.E. Mr. Jacques Masangu-a-Mwanza,
                 H.E. Mr. Honorius Kisimba Ngoy Ndalewe,
                 Maître Tshibangu Kalala,
                 Mr. Jean Salmon,
                 Mr. Philippe Sands,
                 Mr. Olivier Corten,
                 Mr. Pierre Klein.
For Uganda :     The Honourable E. Khiddu Makubuya,
                 Mr. Paul S. Reichler,
                 Mr. Ian Brownlie,
                 The Honourable Amama Mbabazi,
                 Mr. Eric Suy.

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180                      ARMED ACTIVITIES (JUDGMENT)

  22. In the course of the hearings, questions were put to the Parties by Judges
Vereshchetin, Kooijmans and Elaraby.
  Judge Vereshchetin addressed a separate question to each Party. The DRC
was asked : “What are the respective periods of time to which the concrete sub-
missions, found in the written pleadings of the Democratic Republic of the
Congo, refer ?” ; and Uganda was asked : “What are the respective periods of
time to which the concrete submissions relating to the first counter-claim,
found in the written pleadings of Uganda, refer ?”

  Judge Kooijmans addressed the following question to both Parties :
        “Can the Parties indicate which areas of the provinces of Equateur, Ori-
      entale, North Kivu and South Kivu were in the relevant periods in time
      under the control of the UPDF and which under the control of the various
      rebellious militias ? It would be appreciated if sketch-maps would be
      added.”
  Judge Elaraby addressed the following question to both Parties :
         “The Lusaka Agreement signed on 10 July 1999 which takes effect
      24 hours after the signature, provides that :
              ‘The final orderly withdrawal of all foreign forces from the national
           territory of the Democratic Republic of Congo shall be in accordance
           with Annex “B” of this Agreement.’ (Annex A, Chapter 4, para. 4.1.)
         Subparagraph 17 of Annex B provides that the ‘Orderly Withdrawal of
      all Foreign Forces’ shall take place on ‘D-Day + 180 days’.
         Uganda asserts that the final withdrawal of its forces occurred on 2 June
      2003.
         What are the views of the two Parties regarding the legal basis for the
      presence of Ugandan forces in the Democratic Republic of the Congo in
      the period between the date of the ‘final orderly withdrawal’, agreed to in
      the Lusaka Agreement, and 2 June 2003 ?”
  The Parties provided replies to these questions orally and in writing, pur-
suant to Article 61, paragraph 4, of the Rules of Court. Pursuant to Article 72 of
the Rules of Court, each Party presented written observations on the written
replies received from the other.

                                         *
  23. In its Application, the DRC made the following requests :
        “Consequently, and whilst reserving the right to supplement and amplify
      the present request in the course of the proceedings, the Democratic
      Republic of the Congo requests the Court to :
      Adjudge and declare that :
      (a) Uganda is guilty of an act of aggression within the meaning of
          Article 1 of resolution 3314 of the General Assembly of the
          United Nations of 14 December 1974 and of the jurisprudence of the
          International Court of Justice, contrary to Article 2, paragraph 4,
          of the United Nations Charter ;
      (b) further, Uganda is committing repeated violations of the Geneva
          Conventions of 1949 and their Additional Protocols of 1977, in

16

181                      ARMED ACTIVITIES (JUDGMENT)

          flagrant disregard of the elementary rules of international humani-
          tarian law in conflict zones, and is also guilty of massive human
          rights violations in defiance of the most basic customary law ;
      (c) more specifically, by taking forcible possession of the Inga hydroelec-
          tric dam, and deliberately and regularly causing massive electrical
          power cuts, in violation of the provisions of Article 56 of the Addi-
          tional Protocol of 1977, Uganda has rendered itself responsible for
          very heavy losses of life among the 5 million inhabitants of the city of
          Kinshasa and the surrounding area ;
      (d) by shooting down, on 9 October 1998 at Kindu, a Boeing 727 the
          property of Congo Airlines, thereby causing the death of 40 civilians,
          Uganda has also violated the Convention on International Civil
          Aviation signed at Chicago on 7 December 1944, the Hague Conven-
          tion of 16 December 1970 for the Suppression of Unlawful Seizure of
          Aircraft and the Montreal Convention of 23 September 1971 for the
          Suppression of Unlawful Acts against the Safety of Civil Aviation.

         Consequently, and pursuant to the aforementioned international legal
      obligations, to adjudge and declare that :
      (1) all Ugandan armed forces participating in acts of aggression shall
          forthwith vacate the territory of the Democratic Republic of the
          Congo ;
      (2) Uganda shall secure the immediate and unconditional withdrawal
          from Congolese territory of its nationals, both natural and legal
          persons ;
      (3) the Democratic Republic of the Congo is entitled to compensation
          from Uganda in respect of all acts of looting, destruction, removal of
          property and persons and other unlawful acts attributable to Uganda,
          in respect of which the Democratic Republic of the Congo reserves the
          right to determine at a later date the precise amount of the damage
          suffered, in addition to its claim for the restitution of all property
          removed.”
  24. In the written proceedings, the following submissions were presented by
the Parties :
On behalf of the Government of the DRC,
in the Memorial :
         “The Democratic Republic of the Congo, while reserving the right to
      supplement or modify the present submissions and to provide the Court
      with fresh evidence and pertinent new legal arguments in the context of the
      present dispute, requests the Court to adjudge and declare :
      (1) that the Republic of Uganda, by engaging in military and paramilitary
          activities against the Democratic Republic of the Congo, by occupying
          its territory and by actively extending military, logistic, economic and
          financial support to irregular forces operating there, has violated the
          following principles of conventional and customary law :
          — the principle of non-use of force in international relations, includ-
               ing the prohibition of aggression ;
          — the obligation to settle international disputes exclusively by peace-

17

182                      ARMED ACTIVITIES (JUDGMENT)

            ful means so as to ensure that international peace and security, as
            well as justice, are not placed in jeopardy ;
          — respect for the sovereignty of States and the rights of peoples to
            self-determination, and hence to choose their own political and
            economic system freely and without outside interference ;
          — the principle of non-interference in matters within the domestic
            jurisdiction of States, which includes refraining from extending
            any assistance to the parties to a civil war operating on the terri-
            tory of another State ;
      (2) that the Republic of Uganda, by engaging in the illegal exploitation of
          Congolese natural resources and by pillaging its assets and wealth, has
          violated the following principles of conventional and customary law :
          — respect for the sovereignty of States, including over their natural
            resources ;
          — the duty to promote the realization of the principle of equality of
            peoples and of their right of self-determination, and consequently
            to refrain from exposing peoples to foreign subjugation, domina-
            tion or exploitation ;
          — the principle of non-interference in matters within the domestic
            jurisdiction of States, including economic matters ;

      (3) that the Republic of Uganda, by committing acts of oppression against
          the nationals of the Democratic Republic of the Congo, by killing,
          injuring, abducting or despoiling those nationals, has violated the fol-
          lowing principles of conventional and customary law :
          — the principle of conventional and customary law involving the
            obligation to respect and ensure respect for fundamental human
            rights, including in times of armed conflict ;
          — the entitlement of Congolese nationals to enjoy the most basic
            rights, both civil and political, as well as economic, social and cul-
            tural ;
      (4) that, in light of all the violations set out above, the Republic of
          Uganda shall, to the extent of and in accordance with, the particulars
          set out in Chapter VI of this Memorial, and in conformity with cus-
          tomary international law :
          — cease forthwith any continuing internationally wrongful act, in
            particular its occupation of Congolese territory, its support for
            irregular forces operating in the Democratic Republic of the
            Congo, its unlawful detention of Congolese nationals and its
            exploitation of Congolese wealth and natural resources ;

          — make reparation for all types of damage caused by all types of
            wrongful act attributable to it, no matter how remote the causal
            link between the acts and the damage concerned ;
          — accordingly make reparation in kind where this is still physically
            possible, in particular restitution of any Congolese resources, assets
            or wealth still in its possession ;

          — failing this, furnish a sum covering the whole of the damage

18

183                      ARMED ACTIVITIES (JUDGMENT)

            suffered, including, in particular, the examples mentioned in
            paragraph 6.65 of this Memorial ;
          — further, in any event, render satisfaction for the insults inflicted by
            it upon the Democratic Republic of the Congo, in the form of offi-
            cial apologies, the payment of damages reflecting the gravity of the
            infringements and the prosecution of all those responsible ;

          — provide specific guarantees and assurances that it will never again
            in the future commit any of the above-mentioned violations against
            the Democratic Republic of the Congo” ;

in the Reply :
         “The Democratic Republic of the Congo, while reserving the right to
      supplement or modify the present submissions and to provide the Court
      with fresh evidence and pertinent new legal arguments in the context of the
      present dispute, requests the Court to adjudge and declare :
      (1) that the Republic of Uganda, by engaging in military and paramilitary
          activities against the Democratic Republic of the Congo, by occupying
          its territory and by actively extending military, logistic, economic and
          financial support to irregular forces operating there, has violated the
          following principles of conventional and customary law :
          — the principle of non-use of force in international relations, includ-
               ing the prohibition of aggression ;
          — the obligation to settle international disputes exclusively by peace-
               ful means so as to ensure that peace, international security and
               justice are not placed in jeopardy ;
          — respect for the sovereignty of States and the rights of peoples to
               self-determination, and hence to choose their own political and
               economic system freely and without outside interference ;
          — the principle of non-interference in matters within the domestic
               jurisdiction of States, which includes refraining from extending
               any assistance to the parties to a civil war operating on the terri-
               tory of another State ;
      (2) that the Republic of Uganda, by engaging in the illegal exploitation of
          Congolese natural resources and by pillaging its assets and wealth, has
          violated the following principles of conventional and customary law :
          — respect for the sovereignty of States, including over their natural
               resources ;
          — the duty to promote the realization of the principle of equality of
               peoples and of their right of self-determination, and consequently
               to refrain from exposing peoples to foreign subjugation, domina-
               tion or exploitation ;
          — the principle of non-interference in matters within the domestic
               jurisdiction of States, including economic matters ;

      (3) that the Republic of Uganda, by committing abuses against nationals
          of the Democratic Republic of the Congo, by killing, injuring, and
          abducting those nationals or robbing them of their property, has vio-
          lated the following principles of conventional and customary law :

19

184                      ARMED ACTIVITIES (JUDGMENT)

          — the principle of conventional and customary law involving the
              obligation to respect and ensure respect for fundamental human
              rights, including in times of armed conflict ;
          — the principle of conventional and customary law whereby it is
              necessary, at all times, to make a distinction in an armed con-
              flict between civilian and military objectives ;
          — the entitlement of Congolese nationals to enjoy the most basic
              rights, both civil and political, as well as economic, social and cul-
              tural ;
      (4) that, in light of all the violations set out above, the Republic of
          Uganda shall, in accordance with customary international law :

          — cease forthwith all continuing internationally wrongful acts, and in
            particular its occupation of Congolese territory, its support for
            irregular forces operating in the Democratic Republic of the Congo
            and its exploitation of Congolese wealth and natural resources ;

          — make reparation for all types of damage caused by all types of
            wrongful act attributable to it, no matter how remote the causal
            link between the acts and the damage concerned ;
          — accordingly, make reparation in kind where this is still physically
            possible, in particular in regard to any Congolese resources, assets
            or wealth still in its possession ;

          — failing this, furnish a sum covering the whole of the damage
            suffered, including, in particular, the examples set out in para-
            graph 6.65 of the Memorial of the Democratic Republic of the
            Congo and restated in paragraph 1.58 of the present Reply ;
          — further, in any event, render satisfaction for the injuries inflicted
            upon the Democratic Republic of the Congo, in the form of offi-
            cial apologies, the payment of damages reflecting the gravity of the
            violations and the prosecution of all those responsible ;

          — provide specific guarantees and assurances that it will never again
            in the future perpetrate any of the above-mentioned violations
            against the Democratic Republic of the Congo ;

      (5) that the Ugandan counter-claim alleging involvement by the DRC in
          armed attacks against Uganda be dismissed, on the following grounds :

          — to the extent that it relates to the period before Laurent-Désiré
            Kabila came to power, the claim is inadmissible because Uganda
            had previously waived its right to lodge such a claim and, in the
            alternative, the claim is unfounded because Uganda has failed to
            establish the facts on which it is based ;
          — to the extent that it relates to the period after Laurent-Désiré
            Kabila came to power, the claim is unfounded because Uganda
            has failed to establish the facts on which it is based.

      (6) that the Ugandan counter-claim alleging involvement by the DRC in

20

185                      ARMED ACTIVITIES (JUDGMENT)

          an attack on the Ugandan Embassy and on Ugandan nationals in
          Kinshasa be dismissed, on the following grounds :

          — to the extent that Uganda is seeking to engage the responsibility
            of the DRC for acts contrary to international law allegedly com-
            mitted to the detriment of Ugandan nationals, the claim is inad-
            missible because Uganda has failed to show that the persons for
            whose protection it claims to provide are its nationals or that
            such persons have exhausted the local remedies available in the
            DRC ; in the alternative, this claim is unfounded because Uganda
            has failed to establish the facts on which it is based ;
          — that part of the Ugandan claims concerning the treatment
            allegedly inflicted on its diplomatic premises and personnel in
            Kinshasa is unfounded because Uganda has failed to establish
            the facts on which it is based” ;
in the additional pleading entitled “Additional Written Observations on the
Counter-Claims presented by Uganda” :
        “The Democratic Republic of the Congo, while reserving the right to
      supplement or modify the present submissions and to provide the Court
      with fresh evidence and pertinent new legal arguments in the context of the
      present dispute, requests the Court, pursuant to the Rules of Court, to
      adjudge and declare :
        As regards the first counter-claim presented by Uganda :

      (1) to the extent that it relates to the period before Laurent-Désiré Kabila
          came to power, the claim is inadmissible because Uganda had previ-
          ously waived its right to lodge such a claim and, in the alternative, the
          claim is unfounded because Uganda has failed to establish the facts on
          which it is based ;
      (2) to the extent that it relates to the period from when Laurent-Désiré
          Kabila came to power until the onset of Ugandan aggression, the
          claim is unfounded in fact because Uganda has failed to establish the
          facts on which it is based ;
      (3) to the extent that it relates to the period after the onset of Ugandan
          aggression, the claim is founded neither in fact nor in law because
          Uganda has failed to establish the facts on which it is based, and
          because, from 2 August 1998, the DRC was in any event in a situation
          of self-defence.
      As regards the second counter-claim presented by Uganda :

      (1) to the extent that it is now centred on the interpretation and applica-
          tion of the Vienna Convention of 1961 on Diplomatic Relations, the
          claim presented by Uganda radically modifies the subject-matter of the
          dispute, contrary to the Statute and Rules of Court ; this aspect of the
          claim must therefore be dismissed from the present proceedings ;
      (2) the aspect of the claim relating to the inhumane treatment allegedly
          suffered by certain Ugandan nationals remains inadmissible, as
          Uganda has still not shown that the conditions laid down by interna-
          tional law for the exercise of its diplomatic protection have been met ;

21

186                      ARMED ACTIVITIES (JUDGMENT)

          in the alternative, this aspect of the claim is unfounded, as Uganda is
          still unable to establish the factual and legal bases for its claims ;

      (3) the aspect of the claim relating to the alleged expropriation of Ugan-
          dan public property is unfounded, as Uganda is still unable to estab-
          lish the factual and legal bases for its claims.”

On behalf of the Government of Uganda,
in the Counter-Memorial :
         “Reserving its right to supplement or amend its requests, the Republic
      of Uganda requests the Court :
      (1) To adjudge and declare in accordance with international law :
          (A) that the requests of the Democratic Republic of the Congo
               relating to activities or situations involving the Republic of
               Rwanda or its agents are inadmissible for the reasons set forth
               in Chapter XV of the present Counter-Memorial ;
          (B) that the requests of the Democratic Republic of the Congo that
               the Court adjudge that the Republic of Uganda is responsible for
               various breaches of international law, as alleged in the Applica-
               tion and/or the Memorial of the Democratic Republic of Congo,
               are rejected ; and
          (C) that the Counter-claims presented in Chapter XVIII of the present
               Counter-Memorial be upheld.
      (2) To reserve the issue of reparation in relation to the Counter-claims for
          a subsequent stage of the proceedings” ;
in the Rejoinder :
        “Reserving her right to supplement or amend her requests, the Republic
      of Uganda requests the Court :
      1. To adjudge and declare in accordance with international law :
         (A) that the requests of the Democratic Republic of the Congo relat-
              ing to activities or situations involving the Republic of Rwanda or
              her agents are inadmissible for the reasons set forth in Chapter XV
              of the present Counter-Memorial ;
         (B) that the requests of the Democratic Republic of the Congo that
              the Court adjudge that the Republic of Uganda is responsible for
              various breaches of international law, as alleged in the Memorial
              and/or the Reply of the Democratic Republic of Congo, are
              rejected ; and
         (C) that the Counter-claims presented in Chapter XVIII of the
              Counter-Memorial and reaffirmed in Chapter VI of the present
              Rejoinder be upheld.
      2. To reserve the issue of reparation in relation to the Counter-claims for
         a subsequent stage of the proceedings.”
  25. At the oral proceedings, the following final submissions were presented
by the Parties :
On behalf of the Government of the DRC,
at the hearing of 25 April 2005, on the claims of the DRC :

22

187                      ARMED ACTIVITIES (JUDGMENT)

        “The Congo requests the Court to adjudge and declare :
      1. That the Republic of Uganda, by engaging in military and paramilitary
         activities against the Democratic Republic of the Congo, by occupying
         its territory and by actively extending military, logistic, economic and
         financial support to irregular forces having operated there, has violated
         the following principles of conventional and customary law :
         — the principle of non-use of force in international relations, includ-
              ing the prohibition of aggression ;
         — the obligation to settle international disputes exclusively by peace-
              ful means so as to ensure that international peace and security, as
              well as justice, are not placed in jeopardy ;
         — respect for the sovereignty of States and the rights of peoples to
              self-determination, and hence to choose their own political and eco-
              nomic system freely and without outside interference ;
         — the principle of non-intervention in matters within the domestic
              jurisdiction of States, including refraining from extending any assist-
              ance to the parties to a civil war operating on the territory of
              another State.
      2. That the Republic of Uganda, by committing acts of violence against
         nationals of the Democratic Republic of the Congo, by killing and
         injuring them or despoiling them of their property, by failing to take
         adequate measures to prevent violations of human rights in the DRC
         by persons under its jurisdiction or control, and/or failing to punish
         persons under its jurisdiction or control having engaged in the above-
         mentioned acts, has violated the following principles of conventional
         and customary law :

         — the principle of conventional and customary law imposing an obli-
           gation to respect, and ensure respect for, fundamental human rights,
           including in times of armed conflict, in accordance with interna-
           tional humanitarian law ;
         — the principle of conventional and customary law imposing an obli-
           gation, at all times, to make a distinction in an armed conflict
           between civilian and military objectives ;
         — the right of Congolese nationals to enjoy the most basic rights, both
           civil and political, as well as economic, social and cultural.

      3. That the Republic of Uganda, by engaging in the illegal exploitation of
         Congolese natural resources, by pillaging its assets and wealth, by fail-
         ing to take adequate measures to prevent the illegal exploitation of the
         resources of the DRC by persons under its jurisdiction or control,
         and/or failing to punish persons under its jurisdiction or control having
         engaged in the above-mentioned acts, has violated the following prin-
         ciples of conventional and customary law :

         — the applicable rules of international humanitarian law ;
         — respect for the sovereignty of States, including over their natural
           resources ;
         — the duty to promote the realization of the principle of equality of
           peoples and of their right of self-determination, and consequently

23

188                      ARMED ACTIVITIES (JUDGMENT)

           to refrain from exposing peoples to foreign subjugation, domina-
           tion or exploitation ;
         — the principle of non-interference in matters within the domestic
           jurisdiction of States, including economic matters.

      4. (a) That the violations of international law set out in submissions 1,
             2 and 3 constitute wrongful acts attributable to Uganda which
             engage its international responsibility ;
         (b) that the Republic of Uganda shall cease forthwith all continuing
             internationally wrongful acts, and in particular its support for
             irregular forces operating in the DRC and its exploitation of Con-
             golese wealth and natural resources ;

         (c) that the Republic of Uganda shall provide specific guarantees and
             assurances that it will not repeat the wrongful acts complained of ;
         (d) that the Republic of Uganda is under an obligation to the Demo-
             cratic Republic of the Congo to make reparation for all injury
             caused to the latter by the violation of the obligations imposed by
             international law and set out in submissions 1, 2 and 3 above ;

         (e) that the nature, form and amount of the reparation shall be deter-
             mined by the Court, failing agreement thereon between the Parties,
             and that the Court shall reserve the subsequent procedure for that
             purpose.
      5. That the Republic of Uganda has violated the Order of the Court on
         provisional measures of 1 July 2000, in that it has failed to comply with
         the following provisional measures :
         ‘(1) both Parties must, forthwith, prevent and refrain from any action,
              and in particular any armed action, which might prejudice the
              rights of the other Party in respect of whatever judgment the
              Court may render in the case, or which might aggravate or extend
              the dispute before the Court or make it more difficult to resolve ;

         (2) both Parties must, forthwith, take all measures necessary to com-
             ply with all of their obligations under international law, in particu-
             lar those under the United Nations Charter and the Charter of the
             Organization of African Unity, and with United Nations Security
             Council resolution 1304 (2000) of 16 June 2000 ;

         (3) both Parties must, forthwith, take all measures necessary to ensure
             full respect within the zone of conflict for fundamental human
             rights and for the applicable provisions of humanitarian law’ ” ;

at the hearing of 29 April 2005, on the counter-claims of Uganda :

        “The Congo requests the International Court of Justice to adjudge and
      declare :
        As regards the first counter-claim submitted by Uganda :

24

189                       ARMED ACTIVITIES (JUDGMENT)

      (1) to the extent that it relates to the period before Laurent-Désiré Kabila
          came to power, Uganda’s claim is inadmissible because Uganda had
          previously renounced its right to lodge such a claim : in the alternative,
          the claim is unfounded because Uganda has failed to establish the
          facts on which it is based ;
      (2) to the extent that it relates to the period from the time when Laurent-
          Désiré Kabila came to power to the time when Uganda launched its
          armed attack, Uganda’s claim is unfounded in fact because Uganda
          has failed to establish the facts on which it is based ;
      (3) to the extent that it relates to the period subsequent to the launching
          of Uganda’s armed attack, Uganda’s claim is unfounded both in fact
          and in law because Uganda has failed to establish the facts on which
          it is based and, in any event, from 2 August 1998 the DRC was in a
          situation of self-defence.

        As regards the second counter-claim submitted by Uganda :

      (1) to the extent that it now relates to the interpretation and application
          of the Vienna Convention of 1961 on Diplomatic Relations, the claim
          submitted by Uganda radically changes the subject-matter of the dis-
          pute, contrary to the Statute and to the Rules of Court ; that part of
          the claim must therefore be dismissed from the present proceedings ;
      (2) that part of the claim relating to the alleged mistreatment of certain
          Ugandan nationals remains inadmissible because Uganda has still
          failed to show that the requirements laid down by international law
          for the exercise of its diplomatic protection were satisfied ; in the alter-
          native, that part of the claim is unfounded because Uganda is still
          unable to establish the factual and legal bases of its claims.

      (3) that part of the claim relating to the alleged expropriation of Uganda’s
          public property is unfounded because Uganda is still unable to estab-
          lish the factual and legal bases of its claims.”

On behalf of the Government of Uganda,
at the hearing of 27 April 2005, on the claims of the DRC and the counter-
claims of Uganda :
         “The Republic of Uganda requests the Court :
      (1) To adjudge and declare in accordance with international law :
          (A) that the requests of the Democratic Republic of the Congo
              relating to the activities or situations involving the Republic of
              Rwanda or her agents are inadmissible for the reasons set forth
              in Chapter XV of the Counter-Memorial and reaffirmed in the
              oral pleadings ;
          (B) that the requests of the Democratic Republic of the Congo that
              the Court adjudge and declare that the Republic of Uganda is
              responsible for various breaches of international law, as alleged
              in the Memorial, the Reply and/or the oral pleadings are rejected ;
              and
          (C) that Uganda’s counter-claims presented in Chapter XVIII of the

25

190                    ARMED ACTIVITIES (JUDGMENT)

              Counter-Memorial, and reaffirmed in Chapter VI of the Rejoin-
              der as well as the oral pleadings be upheld.
      (2) To reserve the issue of reparation in relation to Uganda’s counter-
          claims for a subsequent stage of the proceedings.”

                                    * * *

   26. The Court is aware of the complex and tragic situation which has
long prevailed in the Great Lakes region. There has been much suffering
by the local population and destabilization of much of the region. In par-
ticular, the instability in the DRC has had negative security implications
for Uganda and some other neighbouring States. Indeed, the Summit
meeting of the Heads of State in Victoria Falls (held on 7 and 8 August
1998) and the Agreement for a Ceasefire in the Democratic Republic of
the Congo signed in Lusaka on 10 July 1999 (hereinafter “the Lusaka
Agreement”) acknowledged as legitimate the security needs of the DRC’s
neighbours. The Court is aware, too, that the factional conflicts within
the DRC require a comprehensive settlement to the problems of the
region.
   However, the task of the Court must be to respond, on the basis of
international law, to the particular legal dispute brought before it. As it
interprets and applies the law, it will be mindful of context, but its task
cannot go beyond that.

                                    * * *

   27. The Court finds it convenient, in view of the many actors referred
to by the Parties in their written pleadings and at the hearing, to indicate
the abbreviations which it will use for those actors in its judgment. Thus
the Allied Democratic Forces will hereinafter be referred to as the ADF,
the Alliance of Democratic Forces for the Liberation of the Congo (Alli-
ance des forces démocratiques pour la libération du Congo) as the
AFDL, the Congo Liberation Army (Armée de libération du Congo) as
the ALC, the Congolese Armed Forces (Forces armées congolaises) as
the FAC, the Rwandan Armed Forces (Forces armées rwandaises) as the
FAR, the Former Uganda National Army as the FUNA, the Lord’s
Resistance Army as the LRA, the Congo Liberation Movement (Mouve-
ment de libération du Congo) as the MLC, the National Army for the
Liberation of Uganda as the NALU, the Congolese Rally for Democracy
(Rassemblement congolais pour la démocratie) as the RCD, the Congo-
lese Rally for Democracy-Kisangani (Rassemblement congolais pour la
démocratie-Kisangani) as the RCD-Kisangani (also known as RCD-
Wamba), the Congolese Rally for Democracy-Liberation Movement
(Rassemblement congolais pour la démocratie-Mouvement de libération)
as the RCD-ML, the Rwandan Patriotic Army as the RPA, the Sudan
People’s Liberation Movement/Army as the SPLM/A, the Uganda

26

191                    ARMED ACTIVITIES (JUDGMENT)

National Rescue Front II as the UNRF II, the Uganda Peoples’ Defence
Forces as the UPDF, and the West Nile Bank Front as the WNBF.

                                   * * *
  28. In its first submission the DRC requests the Court to adjudge and
declare :
      “1. That the Republic of Uganda, by engaging in military and para-
          military activities against the Democratic Republic of the Congo,
          by occupying its territory and by actively extending military,
          logistic, economic and financial support to irregular forces
          having operated there, has violated the following principles of
          conventional and customary law :
          — the principle of non-use of force in international relations,
              including the prohibition of aggression ;
          — the obligation to settle international disputes exclusively by
              peaceful means so as to ensure that international peace and
              security, as well as justice, are not placed in jeopardy ;

          — respect for the sovereignty of States and the rights of peoples
            to self-determination, and hence to choose their own poli-
            tical and economic system freely and without outside inter-
            ference ;
          — the principle of non-intervention in matters within the
            domestic jurisdiction of States, including refraining from
            extending any assistance to the parties to a civil war
            operating on the territory of another State.”
   29. The DRC explains that in 1997 Laurent-Désiré Kabila, who was at
the time a Congolese rebel leader at the head of the AFDL (which was
supported by Uganda and Rwanda), succeeded in overthrowing the then
President of Zaire, Marshal Mobutu Ssese Seko, and on 29 May 1997
was formally sworn in as President of the renamed Democratic Republic
of the Congo. The DRC asserts that, following President Kabila’s acces-
sion to power, Uganda and Rwanda were granted substantial benefits in
the DRC in the military and economic fields. The DRC claims, however,
that President Kabila subsequently sought a gradual reduction in the
influence of these two States over the DRC’s political, military and eco-
nomic spheres. It was, according to the DRC, this “new policy of inde-
pendence and emancipation” from the two States that constituted the
real reason for the invasion of Congolese territory by Ugandan armed
forces in August 1998.
   30. The DRC maintains that at the end of July 1998 President Kabila
learned of a planned coup d’état organized by the Chief of Staff of the
FAC, Colonel Kabarebe (a Rwandan national), and that, in an official
statement published on 28 July 1998 (see paragraph 49 below), President

27

192                  ARMED ACTIVITIES (JUDGMENT)

Kabila called for the withdrawal of foreign troops from Congolese terri-
tory. Although his address referred mainly to Rwandan troops, the DRC
argues that there can be no doubt that President Kabila intended to
address his message to “all foreign forces”. The DRC states that on
2 August 1998 the 10th Brigade assigned to the province of North Kivu
rebelled against the central Government of the DRC, and that during the
night of 2 to 3 August 1998 Congolese Tutsi soldiers and a few Rwandan
soldiers not yet repatriated attempted to overthrow President Kabila.
According to the DRC, Uganda began its military intervention in the
DRC immediately after the failure of the coup attempt.
   31. The DRC argues that on 4 August 1998 Uganda and Rwanda
organized an airborne operation, flying their troops from Goma on the
eastern frontier of the DRC to Kitona, some 1,800 km away on the other
side of the DRC, on the Atlantic coast. The DRC alleges that the aim
was to overthrow President Kabila within ten days. According to the
DRC, in the advance towards Kinshasa, Ugandan and Rwandan troops
captured certain towns and occupied the Inga Dam, which supplies elec-
tricity to Kinshasa. The DRC explains that Angola and Zimbabwe came
to the assistance of the Congolese Government to help prevent the cap-
ture of Kinshasa. The DRC also states that in the north-eastern part of
the country, within a matter of months, UPDF troops had advanced and
had progressively occupied a substantial part of Congolese territory in
several provinces.

   32. The DRC submits that Uganda’s military operation against the
DRC also consisted in the provision of support to Congolese armed
groups opposed to President Kabila’s Government. The DRC thus main-
tains that the RCD was created by Uganda and Rwanda on 12 August
1998, and that at the end of September 1998 Uganda supported the cre-
ation of the new MLC rebel group, which was not linked to the Rwandan
military. According to the DRC, Uganda was closely involved in the
recruitment, education, training, equipment and supplying of the MLC
and its military wing, the ALC. The DRC alleges that the close links
between Uganda and the MLC were reflected in the formation of a
united military front in combat operations against the FAC. The DRC
maintains that in a number of cases the UPDF provided tactical support,
including artillery cover, for ALC troops. Thus, the DRC contends that
the UPDF and the ALC constantly acted in close co-operation during
many battles against the Congolese regular army. The DRC concludes
that Uganda, “in addition to providing decisive military support for sev-
eral Congolese rebel movements, has been extremely active in supplying
these movements with a political and diplomatic framework”.

  33. The DRC notes that the events in its territory were viewed with
grave concern by the international community. The DRC claims that at
the Victoria Falls Summit, which took place on 7 and 8 August 1998, and

28

193                   ARMED ACTIVITIES (JUDGMENT)

was attended by representatives of the DRC, Uganda, Namibia, Rwanda,
Tanzania, Zambia and Zimbabwe,
      “member countries of the SADC [Southern African Development
      Community], following the submission of an application by the
      Democratic Republic of the Congo, unequivocally condemned the
      aggression suffered by the Congo and the occupation of certain
      parts of its national territory”.
The DRC further points out that, in an attempt to help resolve the con-
flict, the SADC, the States of East Africa and the Organization of Afri-
can Unity (OAU) initiated various diplomatic efforts, which included
a series of meetings between the belligerents and the representatives of
various African States, also known as the “Lusaka Process”. On 18 April
1999 the Sirte Peace Agreement was concluded, in the framework of the
Lusaka peace process, between President Kabila of the DRC and Presi-
dent Museveni of Uganda. The DRC explains that, under this Agree-
ment, Uganda undertook to “cease hostilities immediately” and to with-
draw its troops from the territory of the DRC. The Lusaka Agreement
was signed by the Heads of State of the DRC, Uganda and other African
States (namely, Angola, Namibia, Rwanda and Zimbabwe) on 10 July
1999 and by the MLC and RCD (rebel groups) on 1 August 1999 and
31 August 1999, respectively. The DRC explains that this Agreement
provided for the cessation of hostilities between the parties’ forces, the
disengagement of these forces, the deployment of OAU verifiers and of
the United Nations Mission in the Democratic Republic of the Congo
(hereinafter “MONUC”), to be followed by the withdrawal of foreign
forces. On 8 April 2000 and 6 December 2000 Uganda signed troop
disengagement agreements known as the Kampala plan and the Harare
plan.

   34. According to the DRC, following the withdrawal of Ugandan
troops from its territory in June 2003, Uganda has continued to provide
arms to ethnic groups confronting one another in the Ituri region, on the
boundary with Uganda. The DRC further argues that Uganda “has left
behind it a fine network of warlords, whom it is still supplying with arms
and who themselves continue to plunder the wealth of the DRC on
behalf of Ugandan and foreign businessmen”.

                                    *

   35. Uganda, for its part, claims that from early 1994 through to
approximately May 1997 the Congolese authorities provided military and
logistical support to anti-Ugandan insurgents. Uganda asserts that from
the beginning of this period it was the victim of cross-border attacks from
these armed rebels in eastern Congo. It claims that, in response to these
attacks, until late 1997 it confined its actions to its own side of the

29

194                  ARMED ACTIVITIES (JUDGMENT)

Congo-Uganda border, by reinforcing its military positions along the
frontier.
   36. According to Uganda, in 1997 the AFDL, made up of a loose alli-
ance of the combined forces of the various Congolese rebel groups,
together with the Rwandan army, overthrew President Mobutu’s régime
in Zaire. Uganda asserts that upon assuming power on 29 May 1997,
President Kabila invited Uganda to deploy its own troops in eastern
Congo in view of the fact that the Congolese army did not have the
resources to control the remote eastern provinces, and in order to “elimi-
nate” the anti-Ugandan insurgents operating in that zone and to secure
the border region. According to Uganda, it was on this understanding
that Ugandan troops crossed into eastern Congo and established bases
on Congolese territory. Uganda further alleges that in December 1997, at
President Kabila’s further invitation, Uganda sent two UPDF battalions
into eastern Congo, followed by a third one in April 1998, also at the
invitation of the Congolese President. Uganda states that on 27 April
1998 the Protocol on Security along the Common Border was signed by
the two Governments in order to reaffirm the invitation of the DRC to
Uganda to deploy its troops in eastern Congo as well as to commit the
armed forces of both countries to jointly combat the anti-Ugandan insur-
gents in Congolese territory and secure the border region. Uganda main-
tains that three Ugandan battalions were accordingly stationed in the
border region of the Ruwenzori Mountains within the DRC.

   37. However, Uganda claims that between May and July 1998 Presi-
dent Kabila broke off his alliances with Rwanda and Uganda and estab-
lished new alliances with Chad, the Sudan and various anti-Ugandan
insurgent groups.
   With regard to the official statement by President Kabila published on
28 July 1998 calling for the withdrawal of Rwandan troops from Congo-
lese territory, Uganda interprets this statement as not affecting Uganda,
arguing that it made no mention of the Ugandan armed forces that were
then in the DRC pursuant to President Kabila’s earlier invitation and to
the Protocol of 27 April 1998.
   38. Uganda affirms that it had no involvement in or foreknowledge of
the FAC rebellion that occurred in eastern Congo on 2 August 1998 nor
of the attempted coup d’état against President Kabila on the night of
2-3 August 1998. Uganda likewise denies that it participated in the attack
on the Kitona military base. According to Uganda, on 4 August 1998
there were no Ugandan troops present in either Goma or Kitona, or on
board the planes referred to by the DRC.
   39. Uganda further claims that it did not send additional troops into
the DRC during August 1998. Uganda states, however, that by August-
September 1998, as the DRC and the Sudan prepared to attack Ugandan
forces in eastern Congo, its security situation had become untenable.
Uganda submits that “[i]n response to this grave threat, and in the lawful
exercise of its sovereign right of self-defence”, it made a decision on

30

195                    ARMED ACTIVITIES (JUDGMENT)

11 September 1998 to augment its forces in eastern Congo and to gain
control of the strategic airfields and river ports in northern and eastern
Congo in order to stop the combined forces of the Congolese and Suda-
nese armies as well as the anti-Ugandan insurgent groups from reaching
Uganda’s borders. According to Uganda, the military operations to take
control of these key positions began on 20 September 1998. Uganda
states that by February 1999 Ugandan forces succeeded in occupying all
the key airfields and river ports that served as gateways to eastern Congo
and the Ugandan border. Uganda maintains that on 3 July 1999 its
forces gained control of the airport at Gbadolite and drove all Sudanese
forces out of the DRC.
   40. Uganda notes that on 10 July 1999 the on-going regional peace
process led to the signing of a peace agreement in Lusaka by the Heads of
State of Uganda, the DRC, Rwanda, Zimbabwe, Angola and Namibia,
followed by the Kampala (8 April 2000) and Harare (6 December 2000)
Disengagement Plans. Uganda points out that, although no immediate or
unilateral withdrawal was called for, it began withdrawing five battalions
from the DRC on 22 June 2000. On 20 February 2001 Uganda announced
that it would withdraw two more battalions from the DRC. On 6 Sep-
tember 2002 Uganda and the DRC concluded a peace agreement in
Luanda (Agreement between the Governments of the Democratic Repub-
lic of the Congo and the Republic of Uganda on Withdrawal of Ugandan
Troops from the Democratic Republic of the Congo, Co-operation and
Normalisation of Relations between the two Countries, hereinafter “the
Luanda Agreement”). Under its terms Uganda agreed to withdraw
from the DRC all Ugandan troops, except for those expressly authorized
by the DRC to remain on the slopes of Mt. Ruwenzori. Uganda claims
that, in fulfilment of its obligations under the Luanda Agreement, it com-
pleted the withdrawal of all of its troops from the DRC in June 2003.
Uganda asserts that “[s]ince that time, not a single Ugandan soldier has
been deployed inside the Congo”.

  41. As for the support for irregular forces operating in the DRC,
Uganda states that it has never denied providing political and military
assistance to the MLC and the RCD. However, Uganda asserts that it
did not participate in the formation of the MLC and the RCD.
        “[I]t was only after the rebellion had broken out and after the
      RCD had been created that Uganda began to interact with the RCD,
      and, even then, Uganda’s relationship with the RCD was strictly
      political until after the middle of September 1998.” (Emphasis in the
      original.)
According to Uganda, its military support for the MLC and for the RCD
began in January 1999 and March 1999 respectively. Moreover, Uganda
argues that the nature and extent of its military support for the Congo-
lese rebels was consistent with and limited to the requirements of self-
defence. Uganda further states that it refrained from providing the rebels

31

196                  ARMED ACTIVITIES (JUDGMENT)

with the kind or amount of support they would have required to achieve
such far-reaching purposes as the conquest of territory or the overthrow
of the Congolese Government.

                                  *   *

                           ISSUE OF CONSENT

   42. The Court now turns to the various issues connected with the first
submission of the DRC.
   43. In response to the DRC’s allegations of military and paramilitary
activities amounting to aggression, Uganda states that from May 1997
(when President Laurent-Désiré Kabila assumed power in Kinshasa)
until 11 September 1998 (the date on which Uganda states that it decided
to respond on the basis of self-defence) it was present in the DRC with
the latter’s consent. It asserts that the DRC’s consent to the presence of
Ugandan forces was renewed in July 1999 by virtue of the terms of the
Lusaka Agreement and extended thereafter. Uganda defends its military
actions in the intervening period of 11 September 1998 to 10 July 1999 as
lawful self-defence. The Court will examine each of Uganda’s arguments
in turn.

   44. In a written answer to the question put to it by Judge Vereshchetin
(see paragraph 22 above), the DRC clarified that its claims relate to
actions by Uganda beginning in August 1998. However, as the Parties do
not agree on the characterization of events in that month, the Court
deems it appropriate first to analyse events which occurred a few months
earlier, and the rules of international law applicable to them.

   45. Relations between Laurent-Désiré Kabila and the Ugandan Gov-
ernment had been close, and with the coming to power of the former
there was a common interest in controlling anti-government rebels who
were active along the Congo-Uganda border, carrying out in particular
cross-border attacks against Uganda. It seems certain that from mid-
1997 and during the first part of 1998 Uganda was being allowed to
engage in military action against anti-Ugandan rebels in the eastern part
of Congolese territory. Uganda claims that its troops had been invited
into eastern Congo by President Kabila when he came to power in May
1997. The DRC has acknowledged that “Ugandan troops were present
on the territory of the Democratic Republic of the Congo with the con-
sent of the country’s lawful government”. It is clear from the materials
put before the Court that in the period preceding August 1998 the DRC
did not object to Uganda’s military presence and activities in its eastern
border area. The written pleadings of the DRC make reference to author-
ized Ugandan operations from September 1997 onwards. There is refer-
ence to such authorized action by Uganda on 19 December 1997, in
early February 1998 and again in early July 1998, when the DRC author-

32

197                   ARMED ACTIVITIES (JUDGMENT)

ized the transfer of Ugandan units to Ntabi, in Congolese territory, in
order to fight more effectively against the ADF.

   46. A series of bilateral meetings between the two Governments took
place in Kinshasa from 11 to 13 August 1997, in Kampala from 6 to
7 April 1998 and again in Kinshasa from 24 to 27 April 1998. This last
meeting culminated in a Protocol on Security along the Common Border
being signed on 27 April 1998 between the two countries, making refer-
ence, inter alia, to the desire “to put an end to the existence of the rebel
groups operating on either side of the common border, namely in the
Ruwenzori”. The two parties agreed that their respective armies would
“co-operate in order to insure security and peace along the common
border”. The DRC contends that these words do not constitute an “invi-
tation or acceptance by either of the contracting parties to send its army
into the other’s territory”. The Court believes that both the absence of
any objection to the presence of Ugandan troops in the DRC in the pre-
ceding months, and the practice subsequent to the signing of the Proto-
col, support the view that the continued presence as before of Ugandan
troops would be permitted by the DRC by virtue of the Protocol.
Uganda told the Court that
      “[p]ursuant to the Protocol, Uganda sent a third battalion into
      eastern Congo, which brought her troop level up to approximately
      2,000, and she continued military operations against the armed
      groups in the region both unilaterally and jointly with Congolese
      Government forces”.
The DRC has not denied this fact nor that its authorities accepted this
situation.
   47. While the co-operation envisaged in the Protocol may be reason-
ably understood as having its effect in a continued authorization of
Ugandan troops in the border area, it was not the legal basis for such
authorization or consent. The source of an authorization or consent to
the crossing of the border by these troops antedated the Protocol and this
prior authorization or consent could thus be withdrawn at any time by
the Government of the DRC, without further formalities being necessary.

  48. The Court observes that when President Kabila came to power,
the influence of Uganda and in particular Rwanda in the DRC became
substantial. In this context it is worthy of note that many Rwandan offic-
ers held positions of high rank in the Congolese army and that Colonel
James Kabarebe, of Rwandan nationality, was the Chief of Staff of the
FAC (the armed forces of the DRC). From late spring 1998, President
Kabila sought, for various reasons, to reduce this foreign influence ; by
mid-1998, relations between President Kabila and his former allies had

33

198                    ARMED ACTIVITIES (JUDGMENT)

deteriorated. In light of these circumstances the presence of Rwandan
troops on Congolese territory had in particular become a major concern
for the Government of the DRC.

  49. On 28 July 1998, an official statement by President Kabila was
published, which read as follows :
         “The Supreme Commander of the Congolese National Armed
      Forces, the Head of State of the Republic of the Congo and the
      Minister of National Defence, advises the Congolese people that he
      has just terminated, with effect from this Monday 27 July 1998, the
      Rwandan military presence which has assisted us during the period
      of the country’s liberation. Through these military forces, he would
      like to thank all of the Rwandan people for the solidarity they have
      demonstrated to date. He would also like to congratulate the demo-
      cratic Congolese people on their generosity of spirit for having
      tolerated, provided shelter for and trained these friendly forces during
      their stay in our country. This marks the end of the presence of all
      foreign military forces in the Congo.” [Translation by the Registry.]
   50. The DRC has contended that, although there was no specific
reference to Ugandan troops in the statement, the final phrase indicated
that consent was withdrawn for Ugandan as well as Rwandan troops. It
states that, having learned of a plotted coup, President Kabila “officially
announced . . . the end of military co-operation with Rwanda and asked
the Rwandan military to return to their own country, adding that this
marked the end of the presence of foreign troops in the Congo”. The
DRC further explains that Ugandan forces were not mentioned because
they were “very few in number in the Congo” and were not to be treated
in the same way as the Rwandan forces, “who in the prevailing circum-
stances, were perceived as enemies suspected of seeking to overthrow the
régime”. Uganda, for its part, maintains that the President’s statement
was directed at Rwandan forces alone ; that the final phrase of the state-
ment was not tantamount to the inclusion of a reference to Ugandan
troops ; and that any withdrawal of consent for the presence of Ugandan
troops would have required a formal denunciation, by the DRC, of
the April 1998 Protocol.
   51. The Court notes, first, that for reasons given above, no particular
formalities would have been required for the DRC to withdraw its con-
sent to the presence of Ugandan troops on its soil. As to the content of
President Kabila’s statement, the Court observes that, as a purely textual
matter, the statement was ambiguous.
   52. More pertinently, the Court draws 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.
The DRC accepted that Uganda could act, or assist in acting, against
rebels on the eastern border and in particular to stop them operating
across the common border. Even had consent to the Ugandan military

34

199                  ARMED ACTIVITIES (JUDGMENT)

presence extended much beyond the end of July 1998, the parameters of
that consent, in terms of geographic location and objectives, would have
remained thus restricted.

   53. In the event, the issue of withdrawal of consent by the DRC, and
that of expansion by Uganda of the scope and nature of its activities,
went hand in hand. The Court observes that at the Victoria Falls Summit
(see paragraph 33 above) the DRC accused Rwanda and Uganda of
invading its territory. Thus, it appears evident to the Court that, what-
ever interpretation may be given to President Kabila’s statement of
28 July 1998, any earlier consent by the DRC to the presence of Ugandan
troops on its territory had at the latest been withdrawn by 8 August 1998,
i.e. the closing date of the Victoria Falls Summit.

  54. The Court recalls that, independent of the conflicting views as to
when Congolese consent to the presence of Ugandan troops might have
been withdrawn, the DRC has informed the Court that its claims against
Uganda begin with what it terms an aggression commencing on 2 August
1998.

                                  *   *

       FINDINGS OF FACT CONCERNING UGANDA’S USE OF FORCE
                      IN RESPECT OF KITONA

   55. The Court observes that the dispute about the commencement
date of the military action by Uganda that was not covered by consent is,
in the most part, directed at the legal characterization of events rather
than at whether these events occurred. In some instances, however,
Uganda denies that its troops were ever present at particular locations,
the military action at Kitona being an important example. The DRC has
informed the Court that from 2 August 1998 Uganda was involved in
military activities in the DRC that violated international law, and that
these were directed at the overthrow of President Kabila. According to
the DRC, Ugandan forces (together with those of Rwanda) were involved
on 4 August in heavy military action at Kitona, which lies in the west of
the DRC some 1,800 km from the Ugandan frontier. Virtually simulta-
neously Uganda engaged in military action in the east, first in Kivu and
then in Orientale province. The DRC contends that this was followed by
an invasion of Equateur province in north-west Congo. The DRC main-
tains that “[a]fter a few months of advances, the Ugandan army had thus
conquered several hundred thousand square kilometres of territory”. The
DRC provided a sketch-map to illustrate the alleged scope and reach of
Ugandan military activity.

  56. Uganda characterizes the situation at the beginning of August

35

200                   ARMED ACTIVITIES (JUDGMENT)

1998 as that of a state of civil war in the DRC — a situation in which
President Kabila had turned to neighbouring Powers for assistance,
including, notably, the Sudan (see paragraphs 120-129 below). These
events caused great security concerns to Uganda. Uganda regarded the
Sudan as a long-time enemy, which now, as a result of the invitation
from President Kabila, had a free rein to act against Uganda and was
better placed strategically to do so. Uganda strongly denies that it
engaged in military activity beyond the eastern border area until 11 Sep-
tember. That military activity by its troops occurred in the east dur-
ing August is not denied by Uganda. But it insists that it was not part of
a plan agreed with Rwanda to overthrow President Kabila : it was rather
actions taken by virtue of the consent given by the DRC to the opera-
tions by Uganda in the east, along their common border.

   57. In accordance with its practice, the Court will first make its own
determination of the facts and then apply the relevant rules of interna-
tional law to the facts which it has found to have existed. The Court will
not attempt a determination of the overall factual situation as it applied
to the vast territory of the DRC from August 1998 till July 2003. It will
make such findings of fact as are necessary for it to be able to respond to
the first submission of the DRC, the defences offered by Uganda, and the
first submissions of Uganda as regards its counter-claims. It is not the
task of the Court to make findings of fact (even if it were in a position to
do so) beyond these parameters.

  58. These findings of fact necessarily entail an assessment of the evi-
dence. The Court has in this case been presented with a vast amount of
materials proffered by the Parties in support of their versions of the facts.
The Court has not only the task of deciding which of those materials
must be considered relevant, but also the duty to determine which of
them have probative value with regard to the alleged facts. The greater
part of these evidentiary materials appear in the annexes of the Parties to
their written pleadings. The Parties were also authorized by the Court to
produce new documents at a later stage. In the event, these contained
important items. There has also been reference, in both the written and
the oral pleadings, to material not annexed to the written pleadings but
which the Court has treated as “part of a publication readily available”
under Article 56, paragraph 4, of its Rules of Court. Those, too, have
been examined by the Court for purposes of its determination of the rele-
vant facts.

   59. As it has done in the past, the Court will examine the facts relevant
to each of the component elements of the claims advanced by the Parties.
In so doing, it will identify the documents relied on and make its own
clear assessment of their weight, reliability and value. In accordance with

36

201                   ARMED ACTIVITIES (JUDGMENT)

its prior practice, the Court will explain what items it should eliminate
from further consideration (see Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, I.C.J. Reports 1986, p. 50, para. 85 ; see equally the practice
followed in the case concerning United States Diplomatic and Consular
Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3).

   60. Both Parties have presented the Court with a vast amount of docu-
mentation. The documents advanced in supporting findings of fact in the
present case include, inter alia, resolutions of the United Nations Secu-
rity Council, reports of the Special Rapporteur of the Commission on
Human Rights, reports and briefings of the OAU, communiqués by
Heads of State, letters of the Parties to the Security Council, reports of
the Secretary-General on MONUC, reports of the United Nations Panels
of Experts on the Illegal Exploitation of Natural Resources and Other
Forms of Wealth of the Democratic Republic of the Congo (hereinafter
“United Nations Panel reports”), the White Paper prepared by the
Congolese Ministry of Human Rights, the Porter Commission Report, the
Ugandan White Paper on the Porter Commission Report, books, reports
by non-governmental organizations and press reports.

   61. The Court will treat with caution evidentiary materials specially
prepared for this case and also materials emanating from a single source.
It will prefer contemporaneous evidence from persons with direct know-
ledge. It will give particular attention to reliable evidence acknowledging
facts or conduct unfavourable to the State represented by the person
making them (Military and Paramilitary Activities in and against Nica-
ragua (Nicaragua v. United States of America), Merits, Judgment,
I.C.J. Reports 1986, p. 41. para. 64). The Court will also give weight to
evidence that has not, even before this litigation, been challenged by
impartial persons for the correctness of what it contains. The Court
moreover notes that evidence obtained by examination of persons directly
involved, and who were subsequently cross-examined by judges skilled in
examination and experienced in assessing large amounts of factual infor-
mation, some of it of a technical nature, merits special attention. The
Court thus will give appropriate consideration to the Report of the
Porter Commission, which gathered evidence in this manner. The Court
further notes that, since its publication, there has been no challenge to
the credibility of this Report, which has been accepted by both Parties.

  62. The Court will embark upon its task by determining whether it has
indeed been proved to its satisfaction that Uganda invaded the DRC in
early August 1998 and took part in the Kitona airborne operation on
4 August 1998. In the Memorial the DRC claimed that on 4 August 1998
three Boeing aircraft from Congo Airlines and Blue Airlines, and a Con-

37

202                   ARMED ACTIVITIES (JUDGMENT)

golese plane from Lignes Aériennes Congolaises (LAC), were boarded by
armed forces from “aggressor countries”, including Uganda, as they were
about to leave Goma Airport. It was claimed that, after refuelling and
taking on board ammunition in Kigali, they flew to the airbase in Kitona,
some 1,800 km from Uganda’s border, where several contingents of
foreign soldiers, including Ugandans, landed. It was claimed by the
DRC that these forces, among which were Ugandan troops, took Kitona,
Boma, Matadi and Inga, which they looted, as well as the Inga Dam. The
DRC claimed that the aim of Uganda and Rwanda was to march to
Kinshasa and rapidly overthrow President Kabila.

   63. Uganda for its part has denied that its forces participated in the
airborne assault launched at Kitona, insisting that at the beginning
of August the only UPDF troops in the DRC were the three battalions in
Beni and Butembo, present with the consent of the Congolese authorities.
In the oral pleadings Uganda stated that it had been invited by Rwanda
to join forces with it in displacing President Kabila, but had declined to
do so. No evidence was advanced by either Party in relation to this con-
tention. The Court accordingly does not need to address the question of
“intention” and will concentrate on the factual evidence, as such.

   64. In its Memorial the DRC relied on “testimonies of Ugandan and
other soldiers, who were captured and taken prisoners in their abortive
attempt to seize Kinshasa”. No further details were provided, however.
No such testimonies were ever produced to the Court, either in the later
written pleadings or in the oral pleadings. Certain testimonies by persons
of Congolese nationality were produced, however. These include an inter-
view with the Congo airline pilot, in which he refers — in connection
with the Kitona airborne operation — to the presence of both Rwandans
and Ugandans at Hotel Nyira. The Court notes that this statement was
prepared more than three years after the alleged events and some 20
months after the DRC lodged with the Court its Application commen-
cing proceedings. It contains no signature as such, though the pilot says
he “signed on the manuscript”. The interview was conducted by the Assist-
ant Legal Adviser at the Service for the Military Detection of Unpatriotic
Activities in the DRC. Notwithstanding the DRC’s position that there is
nothing in this or other such witness statements to suggest that they were
obtained under duress, the setting and context cannot therefore be
regarded as conducive to impartiality. The same conclusion has to be
reached as regards the interview with Issa Kisaka Kakule, a former rebel.
Even in the absence of these deficiencies, the statement of the airline pilot
cannot prove the arrival of Ugandan forces and their participation in the
military operation in Kitona. The statement of Lieutenant Colonel Viala
Mbeang Ilwa was more contemporaneous (15 October 1998) and is of
some particular interest, as he was the pilot of the plane said to have been
hijacked. In it he asserts that Ugandan officers at the hotel informed him

38

203                   ARMED ACTIVITIES (JUDGMENT)

of their plan to topple President Kabila within ten days. There is, how-
ever, no indication of how this statement was provided, or in what
circumstances. The same is true of the statement of Commander Mpele-
Mpele regarding air traffic allegedly indicating Ugandan participation in
the Kitona operation.

   65. The Court has been presented with some evidence concerning a
Ugandan national, referred to by the DRC as Salim Byaruhanga, said to
be a prisoner of war. The record of an interview following the visit of
Ugandan Senator Aggrey Awori consists of a translation, unsigned by
the translator. Later, the DRC produced for the Court a video, said to
verify the meeting between Mr. Awori and Ugandan prisoners. The video
shows four men being asked questions by another addressing them in a
language of the region. One of these says his name is “Salim Byaru-
hanga”. There is, however, no translation provided, nor any information
as to the source of this tape. There do exist letters of August 2001 passing
between the International Committee of the Red Cross (ICRC) and the
Congolese Government on the exchange of Ugandan prisoners, one of
whom is named as Salim Byaruhanga. However, the ICRC never refers
to this person as a member of the UPDF. Uganda has also furnished the
Court with a notarized affidavit of the Chief of Staff of the UPDF saying
that there were no Ugandan prisoners of war in the DRC, nor any officer
by the name of Salim Byaruhanga. This affidavit is stated to have been
prepared in November 2002, in view of the forthcoming case before the
International Court of Justice. The Court recalls that it has elsewhere
observed that a member of the government of a State engaged in litiga-
tion before this Court — and especially litigation relating to armed con-
flict — “will probably tend to identify himself with the interests of his
country” (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Merits, Judgment, I.C.J.
Reports 1986, p. 43, para. 70). The same may be said of a senior military
officer of such a State, and “while in no way impugning the honour or
veracity” of such a person, the Court should “treat such evidence with
great reserve” (ibid.).

   66. The Court observes that, even if such a person existed and even if
he was a prisoner of war, there is nothing in the ICRC letters that refers
to his participation (or to the participation of other Ugandan nationals)
at Kitona. Equally, the PANA Agency press communiqué of 17 Septem-
ber 2001 mentions Salim Byaruhanga when referring to the release of
four Ugandan soldiers taken prisoner in 1998 and 1999 — but there is no
reference to participation in action in Kitona.

  67. The press statements issued by the Democratic Party of Uganda
on 14 and 18 September 1998, which refer to Ugandan troops being

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204                  ARMED ACTIVITIES (JUDGMENT)

flown to western Congo from Gala Airport, make no reference to the
location of Kitona or to events there on 4 August.

   68. Nor can the truth about the Kitona airborne operation be estab-
lished by extracts from a few newspapers, or magazine articles, which rely
on a single source (Agence France Presse, 2 September 1998) ; on an
interested source (Integrated Regional Information Networks (herein-
after IRIN)), or give no sources at all (Pierre Barbancey, Regards 41).
The Court has explained in an earlier case that press information may be
useful as evidence when it is “wholly consistent and concordant as to the
main facts and circumstances of the case” (United States Diplomatic and
Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 10, para. 13),
but that particular caution should be shown in this area. The Court
observes that this requirement of consistency and concordance is not
present in the journalistic accounts. For example, while Professor Weiss
referred to 150 Ugandan troops under the command of the Rwandan
Colonel Kaberebe at Kitona in an article relating to the events in the
DRC, the Belgian journalist Mrs. Braekman wrote about rebels fleeing a
Ugandan battalion of several hundred men.

   69. The Court cannot give weight to claims made by the DRC that a
Ugandan tank was used in the Kitona operation. It would seem that a
tank of the type claimed to be “Ugandan” was captured at Kasangulu.
This type of tank a — T-55 — was in fact one used also by the DRC itself
and by Rwanda. The DRC does not clarify in its argument whether a
single tank was transported from Uganda, nor does it specify, with sup-
porting evidence, on which of the planes mentioned (a Boeing 727,
Ilyushin 76, Boeing 707 or Antonov 32) it was transported from Uganda.
The reference by the DRC to the picture of Mr. Bemba, the leader of the
MLC, on a tank of this type in his book Le choix de la liberté, published
in 2001, cannot prove its use by Ugandan forces in Kitona. Indeed, the
Court finds it more pertinent that in his book Mr. Bemba makes no
mention of the involvement of Ugandan troops at Kitona, but rather
confirms that Rwanda took control of the military base in Kitona.

   70. The Court has also noted that contemporaneous documentation
clearly indicated that at the time the DRC regarded the Kitona operation
as having been carried out by Rwanda. Thus the White Paper annexed to
the Application of the DRC states that between 600 and 800 Rwandan
soldiers were involved in the Kitona operation on 4 August. The letter
sent by the Permanent Representative of the DRC on 2 September 1998
to the President of the Security Council referred to 800 soldiers from
Rwanda being involved in the Kitona operation on 4 August 1998. This
perception seems to be confirmed by the report of the Special Rapporteur

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205                   ARMED ACTIVITIES (JUDGMENT)

of the Commission on Human Rights in February 1999, where reference
is made to Rwandan troops arriving in Kitona on 4 August in order to
attack Kinshasa. The press conference given at United Nations Head-
quarters in New York by the Permanent Representative of the DRC to
the United Nations on 13 August 1998 only referred to Rwandan soldiers
conducting the Kitona airborne operation on 4 August, and to Ugandan
troops advancing upon Bunia on 9 August.
   71. The Court thus concludes that, on the basis of the evidence before
it, it has not been established to its satisfaction that Uganda participated
in the attack on Kitona on 4 August 1998.

                                     *

      FINDINGS OF FACT : MILITARY ACTION IN THE EAST OF THE DRC
                AND IN OTHER AREAS OF THAT COUNTRY

  72. The Court will next analyse the claim made by the DRC of mili-
tary action by Uganda in the east of the DRC during August 1998. The
facts regarding this action are relatively little contested between the
Parties. Their dispute is as to how these facts should be characterized.
The Court must first establish which relevant facts it regards as having
been convincingly established by the evidence, and which thus fall for
scrutiny by reference to the applicable rules of international law.

   73. The Court finds it convenient at this juncture to explain that its
determination of the facts as to the Ugandan presence at, and taking of,
certain locations is independent of the sketch-map evidence offered by
the Parties in support of their claims in this regard. In the response given
by the DRC to the question of Judge Kooijmans, reference was made to
the sketch-map provided by the DRC (see paragraph 55 above) to con-
firm the scope of the Ugandan “invasion and occupation”. This sketch-
map is based on a map of approximate deployment of forces in the DRC
contained in a Report (Africa Report No. 26) prepared by International
Crisis Group (hereinafter ICG), an independent, non-governmental body,
whose reports are based on information and assessment from the field.
On the ICG map, forces of the MLC and Uganda are shown to be
“deployed” in certain positions to the north-west (Gbadolite, Zongo,
Gemena, Bondo, Buta, Bumba, Lisala, Bomongo, Basankusu, and
Mbandaka) ; and Ugandan and “RCD-Wamba” (officially known as
RCD-Kisangani) forces are shown as “deployed” on the eastern frontier
at Bunia, Beni and Isiro. The presence of Uganda and RCD-Wamba
forces is shown at two further unspecified locations.

  74. As to the sketch-maps which Uganda provided at the request of
Judge Kooijmans, the DRC argues that they are too late to be relied on
and were unilaterally prepared without any reference to independent
source materials.

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206                   ARMED ACTIVITIES (JUDGMENT)

   75. In the view of the Court, these maps lack the authority and
credibility, tested against other evidence, that is required for the Court to
place reliance on them. They are at best an aid to the understanding of
what is contended by the Parties. These sketch-maps necessarily lack pre-
cision. With reference to the ICG map (see paragraph 73 above), there is
also the issue of whether MLC forces deployed in the north-west may,
without yet further findings of fact and law, be treated as “Ugandan”
forces for purposes of the DRC’s claim of invasion and occupation. The
same is true for the RCD-Wamba forces deployed in the north-east.

  76. Uganda has stated, in its response to the question put to it during
the oral proceedings by Judge Kooijmans (see paragraph 22 above), that
as of 1 August 1998
      “there were three battalions of UPDF troops — not exceeding 2,000
      soldiers — in the eastern border areas of the DRC, particularly in
      the northern part of North Kivu Province (around Beni and
      Butembo) and the southern part of Orientale Province (around
      Bunia)”.
Uganda states that it “modestly augmented the UPDF presence in the
Eastern border” in response to various events. It has informed the Court
that a UPDF battalion went into Bunia on 13 August, and that a single
battalion had been sent to Watsa “to maintain the situation between
Bunia and the DRC’s border with Sudan”. Uganda further states in its
response to Judge Kooijmans’ question that by the end of August 1998
there were no Ugandan forces present in South Kivu, Maniema or Kasai
Oriental province ; “nor were Ugandan forces present in North Kivu
Province south of the vicinity of Butembo”.

   77. The DRC has indicated that Beni and Butembo were taken by
Ugandan troops on 6 August 1998, Bunia on 13 August and Watsa on
25 August.
   78. The Court finds that most evidence of events in this period is indi-
rect and less reliable than that which emerges from statements made
under oath before the Porter Commission. The Court has already noted
that statements “emanating from high-ranking official political figures,
sometimes indeed of the highest rank, are of particular probative value
when they acknowledge facts or conduct unfavourable to the State rep-
resented by the person who made them” (Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J. Reports 1986, p. 41, para. 64). The
Court believes the same to be the case when such statements against
interest are made by senior military officers given the objective circum-
stances in which those statements were taken. Accordingly, the Court
finds it relevant that before the Porter Commission, Brigadier General
Kazini, who was commander of the Ugandan forces in the DRC, referred

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207                   ARMED ACTIVITIES (JUDGMENT)

to “the capture of Beni, that was on 7 August 1998”.

   79. He also referred to 8 August 1998 as the date of capture of Beni,
7 August being the date “that was the fighting (when it took place) and
our troops occupied Beni”. The Court is satisfied that Beni was taken on
7 August, and Bunia on 13 August. There is some small uncertainty
about the precise date of the taking of Watsa, though none as to the fact
of its being taken in this period. A report by Lieutenant Colonel Waswa
(Annexure G, Porter Commission Report) asserts that the “7[th] infantry
B[attalio]n operational force” entered the DRC at Aru on 10 August,
leaving there on 14 August, and “went to Watsa via Duruba 250 km
away from the Uganda-Congo border. The force spent one day at Duruba,
i.e., 23 August 1998 and proceeded to Watsa which is 40 km where we
arrived on 24 August 1998.” Twenty days were said by him to have been
spent at Watsa, where the airport was secured. Notwithstanding that this
report was dated 18 May 2001, the Court notes that it is detailed, specific
and falls within the rubric of admission against interest to which the
Court will give weight. However, Justice Porter refers to 29 August as the
relevant date for Watsa ; whereas, in its response to the question of Judge
Kooijmans, the DRC gives the date of 25 August for the “prise de
Watsa” (taking of Watsa).

   80. The Court will now consider the events of September 1998 on the
basis of the evidence before it. Uganda acknowledges that it sent part of
a battalion to Kisangani Airport, to guard that facility, on 1 September
1998. It has been amply demonstrated that on several later occasions,
notably in August 1999 and in May and June 2000, Uganda engaged in
large-scale fighting in Kisangani against Rwandan forces, which were
also present there.
   81. The Court notes that a schedule was given by the Ugandan mili-
tary to the Porter Commission containing a composite listing of locations
and corresponding “dates of capture”. The Court observes that the
period it covers stops short of the period covered by the DRC’s claims.
This evidence was put before the Court by Uganda. It includes references
to locations not mentioned by the DRC, whose list, contained in the
response to Judge Kooijmans’s question, is limited to places said to have
been “taken”. The Court simply observes that Ugandan evidence before
the Porter Commission in relation to the month of September 1998 refers
to Kisangani (1 September) ; Munubele (17 September) ; Bengamisa
(18 September) ; Banalia (19 September) ; Isiro (20 September) ; Faladje
(23 September) ; and Tele Bridge (29 September). Kisangani (1 Septem-
ber) and Isiro (20 September) are acknowledged by Uganda as having
been “taken” by its forces (and not just as locations passed through).
   82. As for the events of October 1998, Uganda has confirmed that it
was at Buta on 3 October and Aketi on 6 October. The DRC lists the
taking of Aketi as 8 November (response to the question put by Judge
Kooijmans), but the Court sees no reason for this date to be preferred.

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208                   ARMED ACTIVITIES (JUDGMENT)

Both Parties agree that Buta was taken on 3 October and Dulia on
27 October. The Porter Commission was informed that Ugandan troops
were present at Bafwasende on 12 October.

  83. The DRC has alleged that Kindu was taken by Ugandan troops
on 20 October 1998 ; this was denied in some detail by Uganda in its
Rejoinder. No response was made in the oral pleadings by the DRC to
the reasons given by Uganda for denying it had taken Kindu. Nor is
Kindu in the listing given by the Ugandan military authorities to the
Porter Commission. The Court does not feel it has convincing evidence
as to Kindu having been taken by Ugandan forces in October 1998.

   84. There is agreement between the Parties that Bumba was taken on
17 November 1998.
   85. Uganda claims that Lisala was taken on 12 December 1998. The
list contained in the Porter Commission exhibits makes reference to the
location of Benda, with the date of 13 December. Also listed are Titure
(20 December) and Poko (22 December). Uganda insists it “came to”
Businga on 28 December 1998 and not in early February 1999 as claimed
by the DRC ; and to Gemena on 25 December 1998, and not on 10 July
1999 as also claimed by the DRC.

   These discrepancies do not favour the case of Uganda and the Court
accepts the earlier dates claimed by Uganda.
   86. The DRC claims that Ango was taken on 5 January 1999, and this
is agreed by Uganda. There also appears in the Ugandan “location/dates
of capture” list, Lino-Mbambi (2 January 1999) and Lino (same date),
Akula Port (4 February) ; Kuna (1 March) ; Ngai (4 March) ; Bonzanga
(19 March) ; Pumtsi (31 March) ; Bondo (28 April) ; Katete (28 April) ;
Baso Adia (17 May) ; Ndanga (17 May) ; Bongandanga (22 May) ;
Wapinda (23 May) ; Kalawa Junchai (28 May) ; Bosobata (30 May) ; Boso-
bolo (9 June) ; Abuzi (17 June) ; Nduu (22 June) ; Pimu Bridge (27 June) ;
Busingaloko Bridge (28 June) ; Yakoma (30 June) ; and Bogbonga
(30 June). All of these appear to be locations which Ugandan forces
were rapidly traversing. The sole place claimed by the DRC to have been
“taken” in this period was Mobeka — a precise date for which is given
by Uganda (30 June 1999).
   87. The DRC claims Gbadolite to have been taken on 3 July 1999 and
that fact is agreed by Uganda. The Ugandan list refers also to Mowaka
(1 July) ; Ebonga (2 July) ; Pambwa Junction (2 July) ; Bosomera (3 July) ;
Djombo (4 July) ; Bokota (4 July) ; Bolomudanda Junction (4 July) ; the
crossing of Yakoma Bridge (4 July) ; Mabaye (4 July) ; Businga (7 July) ;
Katakoli (8 July) ; Libenge (29 July) ; Zongo (30 July) ; and Makanza
(31 July).
   88. The DRC also claims Bongandanga and Basankusu (two locations
in the extreme south of Equateur province) to have been taken on
30 November 1999 ; Bomorge, Moboza and Dongo at unspecified dates

44

209                   ARMED ACTIVITIES (JUDGMENT)

in February 2000 ; Inese and Bururu in April 2000 ; and Mobenzene
in June 2000.
   89. There is considerable controversy between the Parties over the
DRC’s claim regarding towns taken after 10 July 1999. The Court recalls
that on this date the Parties had agreed to a ceasefire and to all the
further provisions of the Lusaka Agreement. Uganda has insisted that
Gemena was taken in December 1998 and the Court finds this date more
plausible. Uganda further states in its observations on the DRC’s response
to the question of Judge Kooijmans that “there is no evidence that Ugan-
dan forces were ever in Mobenzene, Bururu, Bomongo, and Moboza at
any time”. The Court observes that Uganda’s list before the Porter Com-
mission also makes no reference to Dongo at all during this period.

   90. Uganda limits itself to stating that equally no military offensives
were initiated by Uganda at Zongo, Basankusu and Dongo during the
post-Lusaka periods ; rather, “the MLC, with some limited Ugandan
assistance, repulsed [attacks by the FAC in violation of the Lusaka
Agreement]”.
   91. The Court makes no findings as to the responsibility of each of the
Parties for any violations of the Lusaka Agreement. It confines itself to
stating that it has not received convincing evidence that Ugandan forces
were present at Mobenzene, Bururu, Bomongo and Moboza in the
period under consideration by the Court for purposes of responding to
the final submissions of the DRC.

                                   *   *

DID THE LUSAKA, KAMPALA AND HARARE AGREEMENTS CONSTITUTE ANY
    CONSENT OF THE DRC TO THE PRESENCE OF UGANDAN TROOPS ?
   92. It is the position of Uganda that its military actions until 11 Sep-
tember 1998 were carried out with the consent of the DRC, that from
11 September 1998 until 10 July 1999 it was acting in self-defence, and
that thereafter the presence of its soldiers was again consented to under
the Lusaka Agreement.
   The Court will first consider whether the Lusaka Agreement, the Kam-
pala and Harare Disengagement Plans and the Luanda Agreement con-
stituted consent to the presence of Ugandan troops on the territory of the
DRC.
   93. The Court issued on 29 November 2001 an Order regarding
counter-claims contained in the Counter-Memorial of Uganda. The
Court found certain of Uganda’s counter-claims to be admissible as such.
However, it found Uganda’s third counter-claim, alleging violations
by the DRC of the Lusaka Agreement, to be “not directly connected
with the subject-matter of the Congo’s claims”. Accordingly, the Court
found this counter-claim not admissible under Article 80, paragraph 1,
of the Rules of Court.

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210                   ARMED ACTIVITIES (JUDGMENT)

   94. It does not follow, however, that the Lusaka Agreement is thereby
excluded from all consideration by the Court. Its terms may certainly be
examined in the context of responding to Uganda’s contention that,
according to its provisions, consent was given by the DRC to the
presence of Ugandan troops from the date of its conclusion (10 July
1999) until all the requirements contained therein should have been
fulfilled.
   95. The Lusaka Agreement does not refer to “consent”. It confines
itself to providing that “[t]he final withdrawal of all foreign forces from
the national territory of the DRC shall be carried out in accordance with
the Calendar in Annex ‘B’ of this Agreement and a withdrawal schedule
to be prepared by the UN, the OAU and the JMC [Joint Military Com-
mission]” (Art. III, para. 12). Under the terms of Annex “B”, the Calen-
dar for the Implementation of the Ceasefire Agreement was dependent
upon a series of designated “Major Events” which were to follow upon
the official signature of the Agreement (“D-Day”). This “Orderly With-
drawal of all Foreign Forces” was to occur on “D-Day plus 180 days”. It
was provided that, pending that withdrawal, “[a]ll forces shall remain in
the declared and recorded locations” in which they were present at the
date of signature of the Agreement (Ann. A, Art. 11.4).

   96. The Court first observes that nothing in the provisions of the
Lusaka Agreement can be interpreted as an affirmation that the security
interests of Uganda had already required the presence of Ugandan forces
on the territory of the DRC as from September 1998, as claimed by
Uganda in the oral proceedings.
   97. The Lusaka Agreement is, as Uganda argues, more than a mere
ceasefire agreement, in that it lays down various “principles” (Art. III)
which cover both the internal situation within the DRC and its relations
with its neighbours. The three annexes appended to the Agreement deal
with these matters in some considerable detail. The Agreement goes
beyond the mere ordering of the parties to cease hostilities ; it provides a
framework to facilitate the orderly withdrawal of all foreign forces to a
stable and secure environment. The Court observes that the letter from
the Secretary-General of the United Nations to the President of Uganda
of 4 May 2001, calling for Uganda to adhere to the agreed timetable for
orderly withdrawal, is to be read in that light. It carries no implication as
to the Ugandan military presence having been accepted as lawful. The
overall provisions of the Lusaka Agreement acknowledge the importance
of internal stability in the DRC for all of its neighbours. However, the
Court cannot accept the argument made by Uganda in the oral proceed-
ings that the Lusaka Agreement constituted “an acceptance by all parties
of Uganda’s justification for sending additional troops into the DRC
between mid-September 1998 and mid-July 1999”.

  98. A more complex question, on which the Parties took clearly

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211                   ARMED ACTIVITIES (JUDGMENT)

opposed positions, was whether the calendar for withdrawal and its rela-
tionship to the series of “Major Events”, taken together with the refer-
ence to the “D-Day plus 180 days”, constituted consent by the DRC to
the presence of Ugandan forces for at least 180 days from 10 July 1999 —
and indeed beyond that time if the envisaged necessary “Major Events”
did not occur.
   99. The Court is of the view that, notwithstanding the special features
of the Lusaka Agreement just described, this conclusion cannot be drawn.
The Agreement took as its starting point the realities on the ground.
Among those realities were the major Ugandan military deployment
across vast areas of the DRC and the massive loss of life over the pre-
ceding months. The arrangements made at Lusaka, to progress towards
withdrawal of foreign forces and an eventual peace, with security for all
concerned, were directed at these factors on the ground and at the reali-
ties of the unstable political and security situation. The provisions of the
Lusaka Agreement thus represented an agreed modus operandi for the
parties. They stipulated how the parties should move forward. They did
not purport to qualify the Ugandan military presence in legal terms. In
accepting this modus operandi the DRC did not “consent” to the presence
of Ugandan troops. It simply concurred that there should be a process to
end that reality in an orderly fashion. The DRC was willing to proceed
from the situation on the ground as it existed and in the manner agreed
as most likely to secure the result of a withdrawal of foreign troops in a
stable environment. But it did not thereby recognize the situation on the
ground as legal, either before the Lusaka Agreement or in the period that
would pass until the fulfilment of its terms.

   100. In resolution 1234 of 9 April 1999 the Security Council had called
for the “immediate signing of a ceasefire agreement” allowing for, inter
alia, “the orderly withdrawal of all foreign forces”. The Security Council
fully appreciated that this withdrawal would entail political and security
elements, as shown in paragraphs 4 and 5 of resolution 1234 (1999). This
call was reflected three months later in the Lusaka Agreement. But these
arrangements did not preclude the Security Council from continuing to
identify Uganda and Rwanda as having violated the sovereignty and ter-
ritorial integrity of the DRC and as being under an obligation to with-
draw their forces “without further delay, in conformity with the timetable
of the Ceasefire Agreement” (Security Council resolution 1304, 16 June
2000), i.e., without any delay to the modus operandi provisions agreed
upon by the parties.

  101. This conclusion as to the effect of the Lusaka Agreement upon
the legality of the presence of Ugandan troops on Congolese territory did
not change with the revisions to the timetable that became necessary. The

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212                   ARMED ACTIVITIES (JUDGMENT)

Kampala Disengagement Plan of 8 April 2000 and the Harare Dis-
engagement Plan of 6 December 2000 provided for new schedules for
withdrawal, it having become apparent that the original schedule in
the Annex to the Lusaka Agreement was unrealistic. While the status of
Ugandan troops remained unchanged, the delay in relation to the D-Day
plus 180 days envisaged in the Lusaka Agreement likewise did not change
the legal status of the presence of Uganda, all parties having agreed to
these delays to the withdrawal calendar.
  102. The Luanda Agreement, a bilateral agreement between the DRC
and Uganda on “withdrawal of Ugandan troops from the Democratic
Republic of the Congo, co-operation and normalisation of relations
between the two countries”, alters the terms of the multilateral Lusaka
Agreement. The other parties offered no objection.

   103. The withdrawal of Ugandan forces was now to be carried out “in
accordance with the Implementation Plan marked Annex “A’ and
attached thereto” (Art. 1, para. 1). This envisaged the completion of
withdrawal within 100 days after signature, save for the areas of Gbado-
lite, Beni and their vicinities, where there was to be an immediate with-
drawal of troops (Art. 1, para. 2). The Parties also agreed that
      “the Ugandan troops shall remain on the slopes of Mt. Ruwenzori
      until the Parties put in place security mechanisms guaranteeing
      Uganda’s security, including training and co-ordinated patrol of the
      common border”.
   104. The Court observes that, as with the Lusaka Agreement, none of
these elements purport generally to determine that Ugandan forces had
been legally present on the territory of the DRC. The Luanda Agreement
revised the modus operandi for achieving the withdrawal of Ugandan
forces in a stable security situation. It was now agreed — without refer-
ence to whether or not Ugandan forces had been present in the area when
the agreement was signed, and to whether any such presence was law-
ful — that their presence on Mount Ruwenzori should be authorized, if
need be, after the withdrawal elsewhere had been completed until appro-
priate security mechanisms had been put in place. The Court observes
that this reflects the acknowledgment by both Parties of Uganda’s secu-
rity needs in the area, without pronouncing upon the legality of prior
Ugandan military actions there or elsewhere.
   105. The Court thus concludes that 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 did not
(save for the limited exception regarding the border region of the Ruwen-
zori Mountains contained in the Luanda Agreement) constitute consent
by the DRC to the presence of Ugandan troops on its territory for the
period after July 1999, in the sense of validating that presence in law.

                                   *   *
48

213                   ARMED ACTIVITIES (JUDGMENT)

              SELF-DEFENCE IN THE LIGHT OF PROVEN FACTS

   106. The Court has already said that, on the basis of the evidence
before it, it has not been established to its satisfaction that Uganda par-
ticipated in the attack on Kitona on 4 August 1998 (see paragraph 71
above). The Court has also indicated that with regard to the presence of
Ugandan troops on Congolese territory near to the common border after
the end of July 1998, President Kabila’s statement on 28 July 1998 was
ambiguous (see paragraph 51 above). The Court has further found that
any earlier consent by the DRC to the presence of Ugandan troops on its
territory had at the latest been withdrawn by 8 August 1998 (see para-
graph 53 above). The Court now turns to examine whether Uganda’s
military activities starting from this date could be justified as actions in
self-defence.

   107. The DRC has contended that Uganda invaded on 2 August 1998,
beginning with a major airborne operation at Kitona in the west of the
DRC, then rapidly capturing or taking towns in the east, and then, con-
tinuing to the north-west of the country. According to the DRC, some of
this military action was taken by the UPDF alone or was taken in con-
junction with anti-government rebels and/or with Rwanda. It submits
that Uganda was soon in occupation of a third of the DRC and that its
forces only left in April 2003.

   108. Uganda insists that 2 August 1998 marked the date only of the
beginning of civil war in the DRC and that, although Rwanda had
invited it to join in an effort to overthrow President Kabila, it had
declined. Uganda contends that it did not act jointly with Rwanda in
Kitona and that it had the consent of the DRC for its military operations
in the east until the date of 11 September 1998. 11 September was the
date of issue of the “Position of the High Command on the Presence of
the UPDF in the DRC” (hereinafter “the Ugandan High Command
document”) (see paragraph 109 below). Uganda now greatly increased
the number of its troops from that date on. Uganda acknowledges that
its military operations thereafter can only be justified by reference to an
entitlement to act in self-defence.

  109. The Court finds it useful at this point to reproduce in its entirety
the Ugandan High Command document. This document has been relied
on by both Parties in this case. The High Command document, although
mentioning the date of 11 September 1998, in the Court’s view, provides
the basis for the operation known as operation “Safe Haven”. The docu-
ment reads as follows :
        “WHEREAS for a long time the DRC has been used by the enemies
      of Uganda as a base and launching pad for attacks against Uganda ;

49

214                    ARMED ACTIVITIES (JUDGMENT)

        AND
         WHEREAS the successive governments of the DRC have not been
      in effective control of all the territory of the Congo ;

        AND
        WHEREAS in May 1997, on the basis of a mutual understanding the
      Government of Uganda deployed UPDF to jointly operate with the
      Congolese Army against Uganda enemy forces in the DRC ;
        AND
        WHEREAS when an anti-Kabila rebellion erupted in the DRC the
      forces of the UPDF were still operating along side the Congolese
      Army in the DRC, against Uganda enemy forces who had fled back
      to the DRC ;
        NOW THEREFORE the High Command sitting in Kampala this 11th
      day of September, 1998, resolves to maintain forces of the UPDF in
      order to secure Uganda’s legitimate security interests which are the
      following :
      1. To deny the Sudan opportunity to use the territory of the DRC
          to destabilize Uganda.
      2. To enable UPDF neutralize Uganda dissident groups which have
          been receiving assistance from the Government of the DRC and
          the Sudan.
      3. To ensure that the political and administrative vacuum, and
          instability caused by the fighting between the rebels and the
          Congolese Army and its allies do not adversely affect the security
          of Uganda.
      4. To prevent the genocidal elements, namely, the Interahamwe,
          and ex-FAR, which have been launching attacks on the people of
          Uganda from the DRC, from continuing to do so.
      5. To be in position to safeguard the territory integrity of Uganda
          against irresponsible threats of invasion from certain forces.”

   110. In turning to its assessment of the legal character of Uganda’s
activities at Aru, Beni, Bunia and Watsa in August 1998, the Court
begins by observing that, while it is true that those localities are all in
close proximity to the border, “as per the consent that had been given
previously by President Kabila”, the nature of Ugandan action at these
locations was of a different nature from previous operations along the
common border. Uganda was not in August 1998 engaging in military
operations against rebels who carried out cross-border raids. Rather, it
was engaged in military assaults that resulted in the taking of the town of
Beni and its airfield between 7 and 8 August, followed by the taking of
the town of Bunia and its airport on 13 August, and the town of Watsa
and its airport at a date between 24 and 29 August.

50

215                   ARMED ACTIVITIES (JUDGMENT)

   111. The Court finds these actions to be quite outside any mutual
understanding between the Parties as to Uganda’s presence on Congolese
territory near to the border. The issue of when any consent may have
terminated is irrelevant when the actions concerned are so clearly beyond
co-operation “in order to ensure peace and security along the common
border”, as had been confirmed in the Protocol of 27 April 1998.

   112. The Court observes that the Ugandan operations against these
eastern border towns could therefore only be justified, if at all, as actions
in self-defence. However, at no time has Uganda sought to justify them
on this basis before the Court.

   113. Operation “Safe Haven”, by contrast, was firmly rooted in a
claimed entitlement “to secure Uganda’s legitimate security interests”
rather than in any claim of consent on the part of the DRC. The Court
notes, however, that those most intimately involved in its execution
regarded the military actions throughout August 1998 as already part
and parcel of operation “Safe Haven”.

   114. Thus Mr. Kavuma, the Minister of State for Defence, informed
the Porter Commission that the UPDF troops first crossed the border at
the beginning of August 1998, at the time of the rebellion against Presi-
dent Kabila, “when there was confusion inside the DRC” (Porter Com-
mission document CW/01/02 23/07/01, p. 23). He confirmed that this
“entry” was “to defend our security interests”. The commander of the
Ugandan forces in the DRC, General Kazini, who had immediate control
in the field, informing Kampala and receiving thereafter any further
orders, was asked “[w]hen was ‘Operation Safe Haven’ ? When did it
commence ?” He replied “[i]t was in the month of August. That very
month of August 1998. ‘Safe Haven’ started after the capture of Beni,
that was on 7 August 1998.” (CW/01/03 24/07/01, p. 774.) General Kazini
emphasized that the Beni operation was the watershed : “So before that . . .
‘Operation Safe Haven’ had not started. It was the normal UPDF opera-
tions — counter-insurgency operations in the Rwenzoris before that date
of 7 August, 1998.” (CW/01/03 24/07/01, p. 129.) He spoke of “the earlier
plan” being that both Governments, in the form of the UPDF and the
FAC, would jointly deal with the rebels along the border. “But now this
new phenomenon had developed : there was a mutiny, the rebels were
taking control of those areas. So we decided to launch an offensive
together with the rebels, a special operation we code-named ‘Safe
Haven’.” General Kazini was asked by Justice Porter what was the objec-
tive of this joint offensive with the rebels. General Kazini replied “[t]o
crush the bandits together with their FAC allies” and confirmed that by
“FAC” he meant the “Congolese Government Army” (CW/01/03 24/07/
01, p. 129).

51

216                   ARMED ACTIVITIES (JUDGMENT)

   115. It is thus clear to the Court that Uganda itself actually regarded
the military events of August 1998 as part and parcel of operation “Safe
Haven”, and not as falling within whatever “mutual understandings”
there had previously been.
   116. The Court has noted that within a very short space of time Ugan-
dan forces had moved rapidly beyond these border towns. It is agreed by
all that by 1 September 1998 the UPDF was at Kisangani, very far from
the border. Furthermore, Lieutenant Colonel Magenyi informed the
Porter Commission, under examination, that he had entered the DRC
on 13 August and stayed there till mid-February 1999. He was based
at Isiro, some 580 km from the border. His brigade had fought its way
there : “we were fighting the ADFs who were supported by the FAC”.

   117. Accordingly, the Court will make no distinction between the
events of August 1998 and those in the ensuing months.
   118. Before this Court Uganda has qualified its action starting from
mid-September 1998 as action in self-defence. The Court will thus exam-
ine whether, throughout the period when its forces were rapidly advan-
cing across the DRC, Uganda was entitled to engage in military action
in self-defence against the DRC. For these purposes, the Court will not
examine whether each individual military action by the UPDF could
have been characterized as action in self-defence, unless it can be shown,
as a general proposition, that Uganda was entitled to act in self-defence
in the DRC in the period from August 1998 till June 2003.

   119. The Court first observes that the objectives of operation “Safe
Haven”, as stated in the Ugandan High Command document (see para-
graph 109 above), were not consonant with the concept of self-defence as
understood in international law.
   120. Uganda in its response to the question put to it by Judge Kooij-
mans (see paragraph 22 above) confirms that the changed policies of
President Kabila had meant that co-operation in controlling insurgency
in the border areas had been replaced by “stepped-up cross-border attacks
against Uganda by the ADF, which was being re-supplied and re-equipped
by the Sudan and the DRC Government”. The Court considers that, in
order to ascertain whether Uganda was entitled to engage in military
action on Congolese territory in self-defence, it is first necessary to exam-
ine the reliability of these claims. It will thus begin by an examination of
the evidence concerning the role that the Sudan was playing in the DRC
at the relevant time.

   121. Uganda claimed that there was a tripartite conspiracy in 1998
between the DRC, the ADF and the Sudan ; that the Sudan provided
military assistance to the DRC’s army and to anti-Ugandan rebel groups ;
that the Sudan used Congo airfields to deliver materiel ; that the Sudan
airlifted rebels and its own army units around the country ; that Sudanese
aircraft bombed the UPDF positions at Bunia on 26 August 1998 ; that a

52

217                   ARMED ACTIVITIES (JUDGMENT)

Sudanese brigade of 2,500 troops was in Gbadolite and was preparing to
engage the UPDF forces in eastern Congo ; and that the DRC encour-
aged and facilitated stepped-up cross border attacks from May 1998
onwards.
   122. The Court observes, more specifically, that in its Counter-Memo-
rial Uganda claimed that from 1994 to 1997 anti-Ugandan insurgents
“received direct support from the Government of Sudan” and that
the latter trained and armed insurgent groups, in part to destabilize
Uganda’s status as a “good example” in Africa. For this, Uganda relied on
a Human Rights Watch (hereinafter HRW) report. The Court notes that
this report is on the subject of slavery in the Sudan and does not assist
with the issue before the Court. It also relied on a Ugandan political
report which simply claimed, without offering supporting evidence, that
the Sudan was backing groups launching attacks from the DRC. It
further relies on an HRW report of 2000 stating that the Sudan was pro-
viding military and logistical assistance to the LRA, in the north of
Uganda, and to the SPLM/A (by which Uganda does not claim to have
been attacked). The claims relating to the LRA, which are also contained
in the Counter-Memorial of Uganda, have no relevance to the present
case. No more relevant is the HRW report of 1998 criticizing the use of
child soldiers in northern Uganda.

   123. The Court has next examined the evidence advanced to support
the assertion that the Sudan was supporting anti-Ugandan groups which
were based in the DRC, namely FUNA, UNRF II and NALU. This con-
sists of a Ugandan political report of 1998 which itself offers no evidence,
and an address by President Museveni of 2000. These documents do not
constitute probative evidence of the points claimed.
   124. Uganda states that President Kabila entered into an alliance with
the Sudan, “which he invited to occupy and utilise airfields in north-
eastern Congo for two purposes : delivering arms and other supplies to
the insurgents ; and conducting aerial bombardment of Uganda towns
and villages”. Only President Museveni’s address to Parliament is relied on.
Certain assertions relating to the son of Idi Amin, and the role he was
being given in the Congolese military, even were they true, prove nothing
as regards the specific allegations concerning the Sudan.

  125. Uganda has informed the Court that a visit was made by Presi-
dent Kabila in May 1998 to the Sudan, in order to put at the Sudan’s
disposal all the airfields in northern and eastern Congo, and to deliver
arms and troops to anti-Ugandan insurgents along Uganda’s border.
Uganda offered as evidence President Museveni’s address to Parliament,
together with an undated, unsigned internal Ugandan military intelli-
gence document. Claims as to what was agreed as a result of any such
meeting that might have taken place remain unproven.

53

218                   ARMED ACTIVITIES (JUDGMENT)

   126. Uganda informed the Court that Uganda military intelligence
reported that in August 1998 the Sudan airlifted insurgents from the
WNBF and LRA to fight alongside Congolese forces against RPA and
RCD rebels. The Court observes that, even were that proven (which in
the Court’s view is not the case), the DRC was entitled so to have acted.
This invitation could not of itself have entitled Uganda to use force in
self-defence. The Court has not been able to verify from concordant evi-
dence the claim that the Sudan transported an entire Chadian brigade to
Gbadolite (whether to join in attacks on Uganda or otherwise).

  127. The Court further observes that claims that the Sudan was train-
ing and transporting FAC troops, at the request of the Congolese
Government, cannot entitle Uganda to use force in self-defence, even were
the alleged facts proven. In the event, such proof is not provided by the
unsigned Ugandan military intelligence document, nor by a political
report that Uganda relies on.

   128. Article 51 of the Charter refers to the right of “individual or col-
lective” self-defence. The Court notes that a State may invite another
State to assist it in using force in self-defence. On 2 August 1998 civil war
had broken out in the DRC and General Kazini later testified to the Por-
ter Commission that operation “Safe Haven” began on 7-8 August 1998.
The Ugandan written pleadings state that on 14 August 1998 Brigadier
Khalil of the Sudan delivered three planeloads of weapons to the FAC in
Kinshasa, and that the Sudan stepped up its training of FAC troops and
airlifted them to different locations in the DRC. Once again, the evidence
offered to the Court as to the delivery of the weapons is the undated,
unsigned, internal Ugandan military intelligence report. This was accom-
panied by a mere political assertion of Sudanese backing for troops
launching attacks on Uganda from the DRC. The evidentiary situation is
exactly the same as regards the alleged agreement by President Kabila
with the Sudanese Vice-President for joint military measures against
Uganda. The same intelligence report, defective as evidence that the
Court can rely on, is the sole source for the claims regarding the Suda-
nese bombing with an Antonov aircraft of UPDF positions in Bunia on
26 August 1998 ; the arrival of the Sudanese brigade in Gbadolite shortly
thereafter ; the deployment of Sudanese troops, along with those of the
DRC, on Uganda’s border on 14 September; and the pledges made on
18 September for the deployment of more Sudanese troops.

  129. It was said by Uganda that the DRC had effectively admitted the
threat to Uganda’s security posed by the Sudan, following the claimed
series of meetings between President Kabila and Sudanese officials

54

219                   ARMED ACTIVITIES (JUDGMENT)

in May, August and September 1998. In support of these claims Uganda
referred the Court to a 1999 ICG report, “How Kabila Lost His Way” ;
although not provided in the annexes, this report was in the public
domain and the Court has ascertained its terms. Reliance is also placed
on a political statement by the Ugandan High Command. The Court
observes that this does not constitute reliable evidence and in any event it
speaks only of the reason for the mid-September deployment of troops.
The Court has also found that it cannot rely as persuasive evidence on a
further series of documents said to support these various claims relating
to the Sudan, all being internal political documents. The Court has exam-
ined the notarized affidavit of 2002 of the Ugandan Ambassador to the
DRC, which refers to documents that allegedly were at the Ugandan
Embassy in Kinshasa, showing that “the Sudanese government was
supplying ADF rebels”. While a notarized affidavit is entitled to a
certain respect, the Court must observe that it is provided by a party in
the case and provides at best indirect “information” that is unverified.

  130. The Court observes that it has not been presented with evidence
that can safely be relied on in a court of law to prove that there was an
agreement between the DRC and the Sudan to participate in or support
military action against Uganda ; or that any action by the Sudan (of itself
factually uncertain) was of such a character as to justify Uganda’s claim
that it was acting in self-defence.

  131. The Court has also examined, in the context of ascertaining
whether Uganda could have been said to have acted in self-defence, the
evidence for Uganda’s claims that from May 1998 onwards the fre-
quency, intensity and destructiveness of cross-border attacks by the ADF
“increased significantly”, and that this was due to support from the DRC
and from the Sudan.

   132. The Court is convinced that the evidence does show a series of
attacks occurring within the relevant time-frame, namely : an attack on
Kichwamba Technical School of 8 June 1998, in which 33 students were
killed and 106 abducted ; an attack near Kichwamba, in which five were
killed ; an attack on Benyangule village on 26 June, in which 11 persons
were killed or wounded ; the abduction of 19 seminarians at Kiburara on
5 July; an attack on Kasese town on 1 August, in which three persons
were killed. A sixth attack was claimed at the oral hearings to have
occurred at Kijarumba, with 33 fatalities. The Court has not been able to
ascertain the facts as to this latter incident.

55

220                   ARMED ACTIVITIES (JUDGMENT)

   133. The DRC does not deny that a number of attacks took place, but
its position is that the ADF alone was responsible for them. The docu-
ments relied on by Uganda for its entitlement to use force in self-defence
against the DRC include a report of the interrogation of a captured ADF
rebel, who admits participating in the Kichwamba attack and refers to an
“intention” to obtain logistical support and sanctuary from the Congo-
lese Government ; this report is not signed by the person making the
statement, nor does it implicate the DRC. Uganda also relies on a docu-
ment entitled “Chronological Illustration of Acts of Destabilisation by
Sudan and Congo Based Dissidents”, which is a Ugandan military docu-
ment. Further, some articles in newspapers relied on by Uganda in fact
blame only the ADF for the attacks. A very few do mention the Sudan.
Only some internal documents, namely unsigned witness statements,
make any reference to Congolese involvement in these acts.

  134. The Court observes that this is also the case as regards the docu-
ments said to show that President Kabila provided covert support to the
ADF. These may all be described as internal documents, often with no
authenticating features, and containing unsigned, unauthenticated and
sometimes illegible witness statements. These do not have the quality or
character to satisfy the Court as to the matters claimed.

   135. In oral pleadings Uganda again referred to these “stepped up
attacks”. Reference was made to an ICG report of August 1998, “North
Kivu, into the Quagmire”. Although not provided in the annexes, this
report was in the public domain and the Court has ascertained its terms.
It speaks of the ADF as being financed by Iran and the Sudan. It further
states that the ADF is “[e]xploiting the incapacity of the Congolese
Armed Forces” in controlling areas of North Kivu with neighbour
Uganda. This independent report does seem to suggest some Sudanese
support for the ADF’s activities. It also implies that this was not a matter
of Congolese policy, but rather a reflection of its inability to control
events along its border.

  136. Uganda relies on certain documents annexed by the DRC to its
Reply. However, the Court does not find this evidence weighty and con-
vincing. It consists of a bundle of news reports of variable reliability,
which go no further than to say that unconfirmed reports had been
received that the Sudan was flying military supplies to Juba and Dungu.
The Court has therefore not found probative such media reports as the
IRIN update for 12 to 14 September 1998, stating that Hutu rebels were
being trained in southern Sudan, and the IRIN update for 16 September
1998, stating that “rebels claim Sudan is supporting Kabila at Kindu”.

56

221                    ARMED ACTIVITIES (JUDGMENT)

Neither has the Court relied on the (unreferenced and unsourced) claim
that President Kabila made a secret visit to Khartoum on 25 August 1998
nor on the extract from Mr. Bemba’s book Le choix de la liberté stating
that 108 Sudanese soldiers were in the DRC, under the command of the
Congolese army, to defend the area around Gbadolite.

   137. Nor has the Court been able to satisfy itself as to certain internal
military intelligence documents, belatedly offered, which lack explana-
tions as to how the information was obtained (e.g. Revelations of Com-
mander Junju Juma (former commanding officer in the ADF) of 17 May
2000, undated Revelations by Issa Twatera (former commanding officer
in the ADF)).

  138. A further “fact” relied on by Uganda in this case as entitling it to
act in self-defence is that the DRC incorporated anti-Ugandan rebel
groups and Interahamwe militia into the FAC. The Court will examine
the evidence and apply the law to its findings.

  139. In its Counter-Memorial, Uganda claimed that President Kabila
had incorporated into his army thousands of ex-FAR and Interahamwe
génocidaires in May 1998. A United States State Department statement
in October 1998 condemned the DRC’s recruitment and training of
former perpetrators of the Rwandan genocide, thus giving some credence
to the reports internal to Uganda that were put before the Court, even
though these lacked signatures or particulars of sources relied on. But
this claim, even if true, seems to have relevance for Rwanda rather than
Uganda.

  140. Uganda in its oral pleadings repeated the claims of incorporation
of former Rwandan soldiers and Interahamwe into special units of the
Congolese army. No sources were cited, nor was it explained to the Court
how this might give rise to a right of self-defence on the part of Uganda.

  141. In the light of this assessment of all the relevant evidence, the
Court is now in a position to determine whether the use of force by
Uganda within the territory of the DRC could be characterized as self-
defence.
  142. Article 51 of the United Nations Charter provides :

         “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 secu-
      rity. Measures taken by Members in the exercise of this right of self-
      defence shall be immediately reported to the Security Council and

57

222                    ARMED ACTIVITIES (JUDGMENT)

      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 interna-
      tional peace and security.”

   143. The Court recalls that Uganda has insisted in this case that
operation “Safe Haven” was not a use of force against an anticipated
attack. As was the case also in the Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America) case,
“reliance is placed by the Parties only on the right of self-defence in the
case of an armed attack which has already occurred, and the issue of the
lawfulness of a response to the imminent threat of armed attack has not
been raised” (I.C.J. Reports 1986, p. 103, para. 194). The Court there
found that “[a]ccordingly [it] expresses no view on that issue”. So it is in
the present case. The Court feels constrained, however, to observe that
the wording of the Ugandan High Command document on the position
regarding the presence of the UPDF in the DRC makes no reference
whatever to armed attacks that have already occurred against Uganda at
the hands of the DRC (or indeed by persons for whose action the DRC
is claimed to be responsible). Rather, the position of the High Command
is that it is necessary “to secure Uganda’s legitimate security interests”.
The specified security needs are essentially preventative — to ensure that
the political vacuum does not adversely affect Uganda, to prevent attacks
from “genocidal elements”, to be in a position to safeguard Uganda from
irresponsible threats of invasion, to “deny the Sudan the opportunity to
use the territory of the DRC to destabilize Uganda”. Only one of the five
listed objectives refers to a response to acts that had already taken
place — the neutralization of “Uganda dissident groups which have been
receiving assistance from the Government of the DRC and the Sudan”.

   144. While relying heavily on this document, Uganda nonetheless
insisted to the Court that after 11 September 1998 the UPDF was acting
in self-defence in response to attacks that had occurred. The Court has
already found that the military operations of August in Beni, Bunia and
Watsa, and of 1 September at Kisangani, cannot be classified as coming
within the consent of the DRC, and their legality, too, must stand or fall
by reference to self-defence as stated in Article 51 of the Charter.

  145. The Court would first observe that in August and early Septem-
ber 1998 Uganda did not report to the Security Council events that it had
regarded as requiring it to act in self-defence.

  146. It is further to be noted that, while Uganda claimed to have acted
in self-defence, it did not ever claim that it had been subjected to an
armed attack by the armed forces of the DRC. The “armed attacks” to

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223                     ARMED ACTIVITIES (JUDGMENT)

which reference was made came rather from the ADF. The Court
has found above (paragraphs 131-135) that there is no satisfactory
proof of the involvement in these attacks, direct or indirect, of the Govern-
ment of the DRC. The attacks did not emanate from armed bands or
irregulars sent by the DRC or on behalf of the DRC, within the sense
of Article 3 (g) of General Assembly resolution 3314 (XXIX) on the
definition of aggression, adopted on 14 December 1974. The Court is
of the view that, on the evidence before it, even if this series of deplorable
attacks could be regarded as cumulative in character, they still remained
non-attributable to the DRC.

   147. For all these reasons, the Court finds that the legal and factual
circumstances for the exercise of a right of self-defence by Uganda
against the DRC were not present. Accordingly, the Court has no need to
respond to the contentions of the Parties as to whether and under what
conditions contemporary international law provides for a right of self-
defence against large-scale attacks by irregular forces. Equally, since the
preconditions for the exercise of self-defence do not exist in the circum-
stances of the present case, the Court has no need to enquire whether
such an entitlement to self-defence was in fact exercised in circumstances
of necessity and in a manner that was proportionate. The Court cannot
fail to observe, however, that the taking of airports and towns many
hundreds of kilometres from Uganda’s border would not seem propor-
tionate to the series of transborder attacks it claimed had given rise to
the right of self-defence, nor to be necessary to that end.

                                     *   *

     FINDINGS OF LAW ON THE PROHIBITION AGAINST THE USE OF FORCE

  148. The prohibition against the use of force is a cornerstone of the
United Nations Charter. Article 2, paragraph 4, of the Charter requires
that :
        “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 51 of the Charter may justify a use of force in self-defence only
within the strict confines there laid down. It does not allow the use of
force by a State to protect perceived security interests beyond these

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224                    ARMED ACTIVITIES (JUDGMENT)

parameters. Other means are available to a concerned State, including, in
particular, recourse to the Security Council.

  149. The Court has found that, from 7 August 1998 onwards, Uganda
engaged in the use of force for purposes and in locations for which it had
no consent whatever. The Court has also found that the events attested
to by Uganda did not justify recourse to the use of force in self-defence.

   150. The long series of resolutions passed by the Security Council
(1234 (1999), 1258 (1999), 1273 (1999), 1279 (1999), 1291 (2000), 1304
(2000), 1316 (2000), 1323 (2000), 1332 (2000), 1341 (2001), 1355 (2001),
1376 (2001), 1399 (2002), 1417 (2002), 1445 (2002), 1457 (2003), 1468
(2003), 1484 (2003), 1489 (2003), 1493 (2003), 1499 (2003), 1501 (2003),
1522 (2004), 1533 (2004), 1552 (2004), 1555 (2004), 1565 (2004), 1592
(2005), 1596 (2005), 1616 (2005) and 1621 (2005) ) and the need for the
United Nations to deploy MONUC, as well as the prolonged efforts by
the United Nations to restore peace in the region and full sovereignty to
the DRC over its territory, testify to the magnitude of the military events
and the attendant suffering. The same may be said of the need to appoint
a Special Rapporteur on the situation of human rights, a Special Envoy
of the Secretary-General for that region, and the establishment of a panel
(later reconstituted) to report on certain of the categories of facts relating
to natural resources.

  151. The Court recalls that on 9 April 1999 the Security Council deter-
mined the conflict to constitute a threat to peace, security and stability in
the region. In demanding an end to hostilities and a political solution to
the conflict (which call was to lead to the Lusaka Agreement of 10 July
1999), the Security Council deplored the continued fighting and presence
of foreign forces in the DRC and called for the States concerned “to
bring to an end the presence of these uninvited forces” (United Nations
doc. S/RES/1234, 9 April 1999).
  152. The United Nations has throughout this long series of carefully
balanced resolutions and detailed reports recognized that all States in the
region must bear their responsibility for finding a solution that would
bring peace and stability. The Court notes, however, that this widespread
responsibility of the States of the region cannot excuse the unlawful mili-
tary action of Uganda.

  153. The evidence has shown that the UPDF traversed vast areas of
the DRC, violating the sovereignty of that country. It engaged in military
operations in a multitude of locations, including Bunia, Kisangani,
Gbadolite and Ituri, and many others. These were grave violations of
Article 2, paragraph 4, of the Charter.

  154. The Court notes that the Security Council, on 16 June 2000,
expressed “outrage at renewed fighting between Ugandan and Rwandan

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225                  ARMED ACTIVITIES (JUDGMENT)

forces in Kisangani”, and condemned it as a “violation of the sovereignty
and territorial integrity of the Democratic Republic of the Congo”
(United Nations doc. S/RES/1304 (2000)).

   155. The Court further observes that Uganda — as is clear from the
evidence given by General Kazini and General Kavuma to the Porter
Commission (see above, paragraph 114) — decided in early August 1998
to launch an offensive together with various factions which sought to
overthrow the Government of the DRC. The DRC has in particular
claimed that, from September 1998 onwards, Uganda both created and
controlled the MLC rebel group led by Mr. Bemba.

   156. The DRC also points to the book written by Mr. Bemba (see para-
graph 69 above) to support this contention, as well as to the fact that in
the Harare Disengagement Plan the MLC and UPDF are treated as a
single unit.
   157. For its part, Uganda acknowledges that it assisted the MLC dur-
ing fighting between late September 1998 and July 1999, while insisting
that its assistance to Mr. Bemba “was always limited and heavily condi-
tioned”. Uganda has explained that it gave “just enough” military sup-
port to the MLC to help Uganda achieve its objectives of driving out the
Sudanese and Chadian troops from the DRC, and of taking over the air-
fields between Gbadolite and the Ugandan border ; Uganda asserts that it
did not go beyond this.

   158. The Court observes that the pages cited by the DRC in
Mr. Bemba’s book do not in fact support the claim of “the creation” of
the MLC by Uganda, and cover the later period of March-July 1999.
The Court has noted the description in Mr. Bemba’s book of the training
of his men by Ugandan military instructors and finds that this accords
with statements he made at that time, as recorded in the ICG report
of 20 August 1999. The Court has equally noted Mr. Bemba’s insistence,
in November 1999, that, while he was receiving support, it was he who
was in control of the military venture and not Uganda. The Court is
equally of the view that the Harare Disengagement Plan merely sought
to identify locations of the various parties, without passing on their
relationships to each other.

   159. The Court has not relied on various other items offered as evi-
dence on this point by the DRC, finding them, uncorroborated, based on
second-hand reports, or not in fact saying what they are alleged to say by
the DRC, or even in some cases partisan. The Court has for such reasons
set aside the ICG report of 17 November, the HRW Report of March
2001, passages from the Secretary-General’s report on MONUC of 4 Sep-
tember 2000 (where reliance on second-hand reports is acknowledged) ;
articles in the IRIN bulletin and Jeune Afrique ; and the statement of a

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226                     ARMED ACTIVITIES (JUDGMENT)

deserter who was co-operating with the Congolese military commission
in preparing a statement for purposes of the present proceedings.

   160. The Court concludes that there is no credible evidence to suggest
that Uganda created the MLC. Uganda has acknowledged giving train-
ing and military support and there is evidence to that effect. The Court
has not received probative evidence that Uganda controlled, or could
control, the manner in which Mr. Bemba put such assistance to use. In
the view of the Court, the conduct of the MLC was not that of “an
organ” of Uganda (Article 4, International Law Commission Draft
Articles on Responsibility of States for internationally wrongful acts,
2001), nor that of an entity exercising elements of governmental authority
on its behalf (Art. 5). The Court has considered whether the MLC’s
conduct was “on the instructions of, or under the direction or control of”
Uganda (Art. 8) and finds that there is no probative evidence by
reference to which it has been persuaded that this was the case. Accord-
ingly, no issue arises in the present case as to whether the requisite tests
are met for sufficiency of control of paramilitaries (see Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 62-65,
paras. 109-115).

   161. The Court would comment, however, that, even if the evidence
does not suggest that the MLC’s conduct is attributable to Uganda, the
training and military support given by Uganda to the ALC, the military
wing of the MLC, violates certain obligations of international law.

  162. Thus the Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations (hereinafter “the
Declaration on Friendly Relations”) provides that :
         “Every State has the duty to refrain from organizing, instigating,
      assisting or participating in acts of civil strife or terrorist acts in
      another State or acquiescing in organized activities within its terri-
      tory directed towards the commission of such acts, when the acts
      referred to in the present paragraph involve a threat or use of force.”
      (General Assembly resolution 2625 (XXV), 24 October 1970.)

  The Declaration further provides that
      “no State shall organize, assist, foment, finance, incite or tolerate
      subversive, terrorist or armed activities directed towards the violent
      overthrow of the regime of another State, or interfere in civil strife in
      another State” (ibid.).

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227                   ARMED ACTIVITIES (JUDGMENT)

These provisions are declaratory of customary international law.

   163. The Court considers that the obligations arising under the prin-
ciples of non-use of force and non-intervention were violated by Uganda
even if the objectives of Uganda were not to overthrow President Kabila,
and were directed to securing towns and airports for reason of its per-
ceived security needs, and in support of the parallel activity of those
engaged in civil war.

   164. In the case concerning Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), the Court
made it clear 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” (I.C.J. Reports 1986, p. 108,
para. 206). The Court notes that in the present case it has been presented
with probative evidence as to military intervention. The Court further
affirms that acts which breach the principle of non-intervention “will
also, if they directly or indirectly involve the use of force, constitute a
breach of the principle of non-use of force in international relations”
(ibid., pp. 109-110, para. 209).
   165. In relation to the first of the DRC’s final submissions, the Court
accordingly concludes that Uganda has violated the sovereignty and also
the territorial integrity of the DRC. Uganda’s actions equally constituted
an interference in the internal affairs of the DRC and in the civil war
there raging. The unlawful military intervention by Uganda was of such
a magnitude and duration that the Court considers it to be a grave viola-
tion of the prohibition on the use of force expressed in Article 2, para-
graph 4, of the Charter.

                                    * * *
   166. Before turning to the second and third submissions of the DRC,
dealing with alleged violations by Uganda of its obligations under inter-
national human rights law and international humanitarian law and the
illegal exploitation of the natural resources of the DRC, it is essential for
the Court to consider the question as to whether or not Uganda was an
occupying Power in the parts of Congolese territory where its troops
were present at the relevant time.

                                    *   *

                 THE ISSUE OF BELLIGERENT OCCUPATION

   167. The DRC asserts that the border regions of eastern Congo were
attacked by Ugandan forces between 7 and 8 August 1998, and that more
areas fell under the control of Ugandan troops over the following months
with the advance of the UPDF into Congolese territory. It further points

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228                   ARMED ACTIVITIES (JUDGMENT)

out that “the territories occupied by Uganda have varied in size as the
conflict has developed” : the area of occupation initially covered Orien-
tale province and part of North Kivu province ; in the course of 1999 it
increased to cover a major part of Equateur province. The DRC specifies
that the territories occupied extended from Bunia and Beni, close to the
eastern border, to Bururu and Mobenzene, in the far north-western part
of the DRC ; and that “the southern boundary of the occupied area [ran]
north of the towns of Mbandaka westwards, then [extended] east to
Kisangani, rejoining the Ugandan border between Goma and Butembo”.
According to the DRC, the occupation of its territory ended with the
withdrawal of the Ugandan army on 2 June 2003.

   168. The DRC contends that “the UPDF set up an occupation zone,
which it administered both directly and indirectly”, in the latter case by
way of the creation of and active support for various Congolese rebel fac-
tions. As an example of such administration, the DRC refers to the cre-
ation of a new province within its territory. In June 1999, the Ugandan
authorities, in addition to the existing ten provinces, created an 11th
province in the north-east of the DRC, in the vicinity of the Ugandan
frontier. The “Kibali-Ituri” province thus created was the result of
merging the districts of Ituri and Haut-Uélé, detached from Orientale
province. On 18 June 1999 General Kazini, commander of the Ugandan
forces in the DRC, “appointed Ms Adèle Lotsove, previously Deputy
Governor of Orientale Province, to govern this new province”. The DRC
further asserts that acts of administration by Uganda of this province
continued until the withdrawal of Ugandan troops. In support of this
contention, the DRC states that Colonel Muzoora, of the UPDF, exer-
cised de facto the duties of governor of the province between January
and May 2001, and that “at least two of the five governors who suc-
ceeded Ms Lotsove up until 2003 were relieved of their duties by the
Ugandan military authorities, sometimes under threat of force”. The
DRC claims that the Ugandan authorities were directly involved “in the
political life of the occupied regions” and, citing the Ugandan daily news-
paper New Vision, that “Uganda has even gone so far as to supervise
local elections”. The DRC also refers to the Sixth report of the Secretary-
General on MONUC, which describes the situation in Bunia (capital of
Ituri district) in the following terms : “[s]ince 22 January, MONUC mili-
tary observers in Bunia have reported the situation in the town to be
tense but with UPDF in effective control”.

  169. Finally, according to the DRC, the fact that Ugandan troops
were not present in every location in the vast territory of the north and
east of the DRC “in no way prevents Uganda from being considered an
occupying power in the localities or areas which were controlled by its
armed forces”. The DRC claims that the notion of occupation in inter-

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229                   ARMED ACTIVITIES (JUDGMENT)

national law, as reflected in Article 42 of the Regulations Respecting the
Laws and Customs of War on Land annexed to the Fourth Hague Con-
vention of 18 October 1907 (hereinafter “the Hague Regulations of
1907”), is closely tied to the control exercised by the troops of the State
operating on parts, extensive or not, of the territory of the occupied
State. Thus, “rather than the omnipresence of the occupying State’s
armed forces, it is that State’s ability to assert its authority which the
Hague Regulations look to as the criterion for defining the notion of
occupying State”.

                                       *
   170. For its part, Uganda denies that it was an occupying Power in the
areas where UPDF troops were present. It argues that, in view of the
small number of its troops in the territory of the DRC, i.e. fewer than
10,000 soldiers “at the height of the deployment”, they could not have
occupied vast territories as claimed by the DRC. In particular, Uganda
maintains that its troops “were confined to the regions of eastern Congo
adjacent to the Uganda border and to designated strategic locations,
especially airfields, from which Uganda was vulnerable to attack by the
DRC and her allies”. Thus, there was “no zone of Ugandan military
occupation and there [was] no Ugandan military administration in place”.
Uganda points out, moreover, that it “ensured that its troops refrained
from all interferences in the local administration, which was run by the
Congolese themselves”. Uganda further notes that “it was the rebels of
the Congo Liberation Movement (MLC) and of the Congolese Rally for
Democracy (RDC) which controlled and administered these territories,
exercising de facto authority”.

   171. As for the appointment of a governor of Ituri district, which
Uganda characterizes as “the only attempt at interference in this local
administration by a Ugandan officer”, Uganda states that this action was
“motivated by the desire to restore order in the region of Ituri in the
interests of the population”. Furthermore, Uganda emphasizes that this
step was “immediately opposed and disavowed by the Ugandan authori-
ties” and that the officer in question, General Kazini, was firmly repri-
manded by his superiors, who instituted disciplinary measures against
him.

                                   *       *
   172. The Court observes that, under customary international law, as
reflected in Article 42 of the Hague Regulations of 1907, territory is con-
sidered 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 (see Legal Con-

65

230                    ARMED ACTIVITIES (JUDGMENT)

sequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, I.C.J. Reports 2004, p. 167, para. 78, and
p. 172, para. 89).
   173. In order to reach a conclusion as to whether a State, the military
forces of which are present on the territory of another State as a result of
an intervention, is an “occupying Power” in the meaning of the term as
understood in the jus in bello, the Court must examine whether there is
sufficient evidence to demonstrate that the said authority was in fact
established and exercised by the intervening State in the areas in ques-
tion. In the present case the Court will need to satisfy itself that the
Ugandan armed 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. In that event, any justification given
by Uganda for its occupation would be of no relevance ; nor would it be
relevant whether or not Uganda had established a structured military
administration of the territory occupied.
   174. The Court will now ascertain whether parts of the territory of the
DRC were placed under the authority of the Ugandan army in the sense
of Article 42 of the Hague Regulations of 1907. In this regard, the Court
first observes that the territorial limits of any zone of occupation by
Uganda in the DRC cannot be determined by simply drawing a line con-
necting the geographical locations where Ugandan troops were present,
as has been done on the sketch-map presented by the DRC (see para-
graphs 55 and 73 above).
   175. It is not disputed between the Parties that General Kazini, com-
mander of the Ugandan forces in the DRC, created the new “province of
Kibali-Ituri” in June 1999 and appointed Ms Adèle Lotsove as its Gov-
ernor. Various sources of evidence attest to this fact, in particular a letter
from General Kazini dated 18 June 1999, in which he appoints Ms Adèle
Lotsove as “provisional Governor” and gives suggestions with regard to
questions of administration of the new province. This is also supported
by material from the Porter Commission. The Court further notes that
the Sixth report of the Secretary-General on MONUC (S/2001/128 of
12 February 2001) states that, according to MONUC military observers,
the UPDF was in effective control in Bunia (capital of Ituri district).

   176. The Court considers that regardless of whether or not General
Kazini, commander of the Ugandan forces in the DRC, acted in viola-
tion of orders and was punished as a result, his conduct is clear evidence
of the fact that Uganda established and exercised authority in Ituri as an
occupying Power.

  177. The Court observes that the DRC makes reference to “indirect
administration” through various Congolese rebel factions and to the
supervision by Ugandan officers over local elections in the territories
under UPDF control. However, the DRC does not provide any specific
evidence to show that authority was exercised by Ugandan armed forces

66

231                   ARMED ACTIVITIES (JUDGMENT)

in any areas other than in Ituri district. The Court further notes that,
although Uganda recognized that as of 1 September 1998 it exercised
“administrative control” at Kisangani Airport, there is no evidence in the
case file which could allow the Court to characterize the presence of
Ugandan troops stationed at Kisangani Airport as occupation in the
sense of Article 42 of the Hague Regulations of 1907. Neither can the
Court uphold the DRC’s contention that Uganda was an occupying
Power in areas outside Ituri controlled and administered by Congolese
rebel movements. As the Court has already indicated, the evidence does
not support the view that these groups were “under the control” of
Uganda (see paragraph 160 above).

   178. The Court thus concludes that Uganda was the occupying Power
in Ituri at the relevant time. As such it was under an obligation, accord-
ing to Article 43 of the Hague Regulations of 1907, to take all the meas-
ures in its power to restore, and ensure, as far as possible, public order
and safety in the occupied area, while respecting, unless absolutely pre-
vented, the laws in force in the DRC. This obligation comprised the duty
to secure respect for the applicable rules of international human rights
law and international humanitarian law, to protect the inhabitants of the
occupied territory against acts of violence, and not to tolerate such vio-
lence by any third party.

   179. The Court, having concluded that Uganda was an occupying
Power in Ituri at the relevant time, finds that Uganda’s responsibility is
engaged both for any acts of its military that violated its international
obligations and for any lack of vigilance in preventing violations of
human rights and international humanitarian law by other actors present
in the occupied territory, including rebel groups acting on their own
account.
   180. The Court notes that Uganda at all times has responsibility for all
actions and omissions of its own military forces in the territory of the
DRC in breach of its obligations under the rules of international human
rights law and international humanitarian law which are relevant and
applicable in the specific situation.

                                  * * *

VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL
         HUMANITARIAN LAW : CONTENTIONS OF THE PARTIES

   181. It is recalled (see paragraph 25 above) that in its second submis-
sion the DRC requests the Court to adjudge and declare :

67

232                   ARMED ACTIVITIES (JUDGMENT)

      “2. That the Republic of Uganda, by committing acts of violence
          against nationals of the Democratic Republic of the Congo, by
          killing and injuring them or despoiling them of their property,
          by failing to take adequate measures to prevent violations of
          human rights in the DRC by persons under its jurisdiction or
          control, and/or failing to punish persons under its jurisdiction
          or control having engaged in the above-mentioned acts, has vio-
          lated the following principles of conventional and customary
          law :

          — the principle of conventional and customary law imposing
            an obligation to respect, and ensure respect for, fundamen-
            tal human rights, including in times of armed conflict, in
            accordance with international humanitarian law ;
          — the principle of conventional and customary law imposing
            an obligation, at all times, to make a distinction in an armed
            conflict between civilian and military objectives ;
          — the right of Congolese nationals to enjoy the most basic
            rights, both civil and political, as well as economic, social
            and cultural.”
   182. The DRC cites various sources of evidence in support of its
claims, including the 2004 MONUC report on human rights violations in
Ituri, reports submitted by the Special Rapporteur of the United Nations
Commission on Human Rights, and testimony gathered on the ground
by a number of Congolese and international non-governmental organi-
zations. The DRC argues that it has “presented abundant evidence
of violations of human rights attributable to Uganda, based on reliable,
varied and concordant sources”. In particular, it notes that many of
the grave accusations are the result of careful fieldwork carried out
by MONUC experts, and attested to by other independent sources.

   183. The DRC claims that the Ugandan armed forces perpetrated
wide-scale massacres of civilians during their operations in the DRC,
in particular in the Ituri region, and resorted to acts of torture and
other forms of inhumane and degrading treatment. The DRC claims
that soldiers of the UPDF carried out acts of reprisal directed against
the civilian inhabitants of villages presumed to have harboured anti-
Ugandan fighters. In the specific context of the conflict in Ituri, the
DRC argues that the findings of the 2004 MONUC report on human
rights violations in Ituri clearly establish the fact that the Ugandan armed
forces participated in the mass killings of civilians.

  184. The DRC maintains that, in the areas occupied by the UPDF,
Ugandan soldiers plundered civilian property for their “personal profit”
and engaged in the deliberate destruction of villages, civilian dwellings

68

233                   ARMED ACTIVITIES (JUDGMENT)

and private property. With regard to the clashes between Uganda and
Rwanda in the city of Kisangani in 1999 and 2000, the DRC refers, in
particular, to Security Council resolution 1304 (2000), in which the
Council deplored, inter alia, “the damage to property inflicted by the
forces of Uganda and Rwanda on the Congolese population”. The DRC
also alleges that the property and resources of the civilian populations in
the eastern Congolese regions occupied by the Ugandan army were
destroyed on certain occasions by UPDF soldiers as part of a “scorched
earth” policy aimed at combating ADF rebels.

   185. The DRC claims that several hundred Congolese children were
forcibly recruited by the UPDF and taken to Uganda for ideological and
military training in the year 2000. In particular, according to the DRC,
many children were abducted in August 2000 in the areas of Bunia, Beni
and Butembo and given military training at the Kyankwanzi camp in
Uganda with a view to incorporating them into the Ugandan armed
forces. The DRC maintains that the abducted children were only able to
leave the Kyankwanzi training camp for final repatriation to the DRC at
the beginning of July 2001 after persistent efforts by UNICEF and the
United Nations to ensure their release.

   186. The DRC contends that the Ugandan armed forces failed to pro-
tect the civilian population in combat operations with other belligerents.
Thus it alleges that attacks were carried out by the UPDF without any
distinction being made between combatants and non-combatants. In this
regard, the DRC makes specific reference to fighting between Ugandan
and Rwandan forces in Kisangani in 1999 and 2000, causing widespread
loss of life within the civilian population and great damage to the city’s
infrastructure and housing. In support of its claims, the DRC cites vari-
ous reports of Congolese and international non-governmental organiza-
tions and refers extensively to the June 2000 MONUC Report and to
the December 2000 report by the United Nations inter-agency assessment
mission, which went to Kisangani pursuant to Security Council resolu-
tion 1304 (2000). The DRC notes that the latter report referred to “sys-
tematic violations of international humanitarian law and indiscriminate
attacks on civilians” committed by Uganda and Rwanda as they fought
each other.

   187. The DRC claims that Ugandan troops were involved in ethnic
conflicts between groups in the Congolese population, particularly
between Hema and Lendu in the Ituri region, resulting in thousands of
civilian casualties. According to the DRC, UPDF forces openly sided
with the Hema ethnic group because of “alleged ethnic links between its
members and the Ugandan population”. In one series of cases, the DRC
alleges that Ugandan armed forces provided direct military support to
Congolese factions and joined with them in perpetrating massacres of

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234                  ARMED ACTIVITIES (JUDGMENT)

civilians. The DRC further claims that Uganda not only supported one
of the groups but also provided training and equipment for other groups
over time, thereby aggravating the local conflicts.

   188. The DRC also asserts that, on several occasions, Ugandan forces
passively witnessed atrocities committed by the members of local militias
in Ituri. In this connection, the DRC refers to various incidents attested
to by reports emanating from the United Nations and MONUC, and
from Congolese and international non-governmental organizations. In
particular, the DRC refers to a massacre of ethnic Lendu carried out by
ethnic Hema militias in Bunia on 19 January 2001. The DRC states that
similar events occurred in other localities.

   189. The DRC charges that Uganda breached its obligation of vigi-
lance incumbent upon it as an occupying Power by failing to enforce
respect for human rights and international humanitarian law in the occu-
pied regions, and particularly in Ituri. The DRC argues that the need to
ensure full respect for fundamental rights in the territories occupied by
the Ugandan army was similarly emphasized by the United Nations
Commission on Human Rights.
   190. The DRC argues that, by its actions, Uganda has violated provi-
sions of the Hague Regulations of 1907 ; the Fourth Geneva Convention
relative to the Protection of Civilian Persons in Time of War of 12 August
1949 ; the International Covenant on Civil and Political Rights ; the Pro-
tocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed Conflicts
(Protocol I), of 8 June 1977 ; the African Charter on Human and Peoples’
Rights ; the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment ; and the African Charter on the
Rights and Welfare of the Child.

                                    *
   191. Uganda contends that the DRC has consistently failed to provide
any credible evidentiary basis to support its allegations of the involve-
ment of Ugandan troops in massacres, torture and ill-treatment of Con-
golese civilians, supposed acts of plunder and scorched earth policy,
destruction of Congolese villages and civilian dwellings, and looting of
private property. In this regard, Uganda refers to each of the incidents
alleged by the DRC and argues that the documentation relied upon by
the DRC to prove its claims either fails to show that the incident
occurred, or fails to show any involvement of Ugandan troops. In more
general terms, Uganda points to the unreliability of the evidence adduced
by the DRC, claiming that it does not distinguish between the various
armies operating in eastern Congo during the relevant period. Uganda
also maintains that the DRC relies on partisan sources of information,

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235                   ARMED ACTIVITIES (JUDGMENT)

such as the Association africaine des droits de l’homme (ASADHO),
which Uganda describes as a pro-Congolese non-governmental organiza-
tion. Uganda further asserts that the 2004 MONUC report on human
rights violations in Ituri, heavily relied on by the DRC to support its vari-
ous claims in connection with the conflict in Ituri, “is inappropriate as a
form of assistance in any assessment accompanied by judicial rigour”.
Uganda states, inter alia, that in its view, “MONUC did not have a mis-
sion appropriate to investigations of a specifically legal character” and
that “both before and after deployment of the multinational forces
in June 2003, there were substantial problems of access to Ituri”.

   192. Uganda contends that the DRC’s allegations regarding the forced
recruitment of child soldiers by Uganda are “framed only in general
terms” and lack “evidentiary support”. According to Uganda, the
children “were rescued” in the context of ethnic fighting in Bunia and
a mutiny within the ranks of the RCD-ML rebel group, and taken to
the Kyankwanzi Leadership Institute for care and counselling in 2001.
Uganda states that the children were subsequently repatriated under the
auspices of UNICEF and the Red Cross. In support of its claims,
Uganda refers to the Fifth and Sixth reports on MONUC of the Secre-
tary-General of the United Nations. Uganda also maintains that it
received expressions of gratitude from UNICEF and from the United
Nations for its role in assisting the children in question.

  193. Uganda reserves its position on the events in Kisangani in 2000
and, in particular, on the admissibility of issues of responsibility relating
to these events (see paragraphs 197-198 below).

  194. Uganda claims that the DRC’s assertion that Ugandan forces
incited ethnic conflicts among groups in the Congolese population is false
and furthermore is not supported by credible evidence.

   195. Uganda argues that no evidence has been presented to establish
that Uganda had any interest in becoming involved in the civil strife in
Ituri. Uganda asserts that, from early 2001 until the final departure of its
troops in 2003, Uganda did what it could to promote and maintain a
peaceful climate in Ituri. Uganda believes that its troops were insufficient
to control the ethnic violence in that region, “and that only an interna-
tional force under United Nations auspices had any chance of doing so”.

                                    *   *
71

236                    ARMED ACTIVITIES (JUDGMENT)

             ADMISSIBILITY OF CLAIMS IN RELATION TO EVENTS
                              IN KISANGANI

   196. Before considering the merits of the DRC’s allegations of viola-
tions by Uganda of international human rights law and international
humanitarian law, the Court must first deal with a question raised by
Uganda concerning the admissibility of the DRC’s claims relating to
Uganda’s responsibility for the fighting between Ugandan and Rwandan
troops in Kisangani in June 2000.

                                     *
  197. Uganda submits that
      “the Court lacks competence to deal with the events in Kisangani
      in June 2000 in the absence of consent on the part of Rwanda, and,
      in the alternative, even if competence exists, in order to safeguard
      the judicial function the Court should not exercise that competence”.

Moreover, according to Uganda, the terms of the Court’s Order of 1 July
2000 indicating provisional measures were without prejudice to issues of
fact and imputability ; neither did the Order prejudge the question of the
jurisdiction of the Court to deal with the merits of the case.

   198. Concerning the events in Kisangani, Uganda maintains that
Rwanda’s legal interests form “the very subject-matter” of the decision
which the DRC is seeking, and that consequently a decision of the Court
covering these events would infringe the “indispensable third party” prin-
ciple referred to in the cases concerning Monetary Gold Removed from
Rome in 1943 (Italy v. France, United Kingdom and United States of
America) (Judgment, I.C.J. Reports 1954, p. 19, and East Timor (Portugal
v. Australia) (Judgment, I.C.J. Reports 1995, p. 90). According to Uganda,
the circumstances in the present case produce the same type of dilemma
faced by the Court in those cases. In particular, Uganda states that “[t]he
culpability or otherwise of Uganda, as a consequence of the conduct of
its armed forces, can only be assessed on the basis of appropriate legal
standards if the conduct of the armed forces of Rwanda is assessed at the
same time”. Uganda further argues that, “[i]n the absence of evidence as
to the role of Rwanda, it is impossible for the Court to know whether the
justification of self-defence is available to Uganda or, in respect of the
quantum of damages, how the role of Rwanda is to be taken into
account”. Uganda contends that, “[i]f the conflict was provoked by
Rwanda, this would materially and directly affect the responsibility of
Uganda vis-à-vis the DRC”. Uganda also claims that the necessity to
safeguard the judicial function of the Court, as referred to in the case
concerning Northern Cameroons (Preliminary Objections, Judgment,

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237                     ARMED ACTIVITIES (JUDGMENT)

I.C.J. Reports 1963, pp. 33-34, 37, 38), would preclude the Court from
exercising any jurisdiction it might have in relation to the events that
occurred in Kisangani.

                                         *
   199. With reference to the objection raised by Uganda regarding the
Court’s jurisdiction to rule on the events in Kisangani in the absence of
Rwanda from the proceedings, the DRC asserts that “Rwanda’s absence
from these proceedings is totally irrelevant and cannot prevent the Court
from ruling on the question of Uganda’s responsibility”. According to
the DRC,
       “[t]he purpose of the DRC’s claim is simply to secure recognition of
       Uganda’s sole responsibility for the use of force by its own armed
       forces in Congolese territory . . . in and around Kisangani, as well as
       for the serious violations of essential rules of international humani-
       tarian law committed on those occasions” (emphasis in original).

   200. The DRC argues that the Court is competent to adjudicate on the
events in Kisangani “without having to consider the question of whether
it should be Rwanda or Uganda that is held responsible for initiating the
hostilities that led to the various clashes”. The DRC refers to the case
concerning Certain Phosphate Lands in Nauru (Nauru v. Australia) in
support of its contention that there is nothing to prevent the Court from
“exercising its jurisdiction with regard to a respondent State, even in the
absence of other States implicated in the Application”. The DRC argues
that the Monetary Gold and East Timor cases, relied on by Uganda to
support its arguments, are fundamentally different from the present case.
According to the DRC, the application which it filed against Uganda “is
entirely autonomous and independent” and does not bear on any sepa-
rate proceedings instituted by the DRC against other States. The DRC
maintains that “[i]t is Uganda’s responsibility which is the subject-matter
of the Congolese claim, and there is no other ‘indispensable party’ whose
legal interests would form ‘the very subject-matter of the decision’, as in
the Monetary Gold or East Timor precedents”.

   201. The DRC points out that the Court, in its Order of 1 July 2000
indicating provisional measures, “refused to accept Uganda’s reasoning
and agreed to indicate certain measures specifically relating to the events
in Kisangani despite the absence of Rwanda from the proceedings”.

 202. In light of the above considerations, the DRC argues that
Uganda’s objection must be rejected.

                                     *       *
     203. The Court has had to examine questions of this kind on previous

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238                    ARMED ACTIVITIES (JUDGMENT)

occasions. In the case concerning Certain Phosphate Lands in Nauru
(Nauru v. Australia), the Court observed that it is not precluded from
adjudicating upon the claims submitted to it in a case in which a third
State “has an interest of a legal nature which may be affected by the deci-
sion in the case”, provided that “the legal interests of the third State
which may possibly be affected do not form the very subject-matter of
the decision that is applied for”. The Court further noted that :
         “In the present case, the interests of New Zealand and the United
      Kingdom do not constitute the very subject-matter of the judgment
      to be rendered on the merits of Nauru’s Application and the situa-
      tion is in that respect different from that with which the Court had
      to deal in the Monetary Gold case. In the latter case, the determina-
      tion of Albania’s responsibility was a prerequisite for a decision to
      be taken on Italy’s claims. In the present case, the determination of
      the responsibility of New Zealand or the United Kingdom is not a
      prerequisite for the determination of the responsibility of Australia,
      the only object of Nauru’s claim . . . In the Monetary Gold case the
      link between, on the one hand, the necessary findings regarding,
      Albania’s alleged responsibility and, on the other, the decision
      requested of the Court regarding the allocation of the gold, was not
      purely temporal but also logical . . .

      . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
      In the present case, a finding by the Court regarding the existence or
      the content of the responsibility attributed to Australia by Nauru
      might well have implications for the legal situation of the two other
      States concerned, but no finding in respect of that legal situation will
      be needed as a basis for the Court’s decision on Nauru’s claims
      against Australia. Accordingly the Court cannot decline to exercise
      its jurisdiction.” (Certain Phosphate Lands in Nauru (Nauru v. Aus-
      tralia), Preliminary Objections, Judgment, I.C.J. Reports 1992,
      pp. 261-262, para. 55.)
   204. The Court considers that this jurisprudence is applicable in the
current proceedings. In the present case, the interests of Rwanda clearly
do not constitute “the very subject-matter” of the decision to be rendered
by the Court on the DRC’s claims against Uganda, nor is the determina-
tion of Rwanda’s responsibility a prerequisite for such a decision. The
fact that some alleged violations of international human rights law and
international humanitarian law by Uganda occurred in the course of
hostilities between Uganda and Rwanda does not impinge on this
finding. Thus it is not necessary for Rwanda to be a party to this case
for the Court to be able to determine whether Uganda’s conduct was a
violation of these rules of international law.

                                     *   *
74

239                   ARMED ACTIVITIES (JUDGMENT)

VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL
            HUMANITARIAN LAW : FINDINGS OF THE COURT

   205. The Court will now examine the allegations by the DRC concern-
ing violations by Uganda of its obligations under international human
rights law and international humanitarian law during its military inter-
vention in the DRC. For these purposes, the Court will take into consid-
eration evidence contained in certain United Nations documents to the
extent that they are of probative value and are corroborated, if necessary,
by other credible sources.

  In order to rule on the DRC’s claim, it is not necessary for the Court
to make findings of fact with regard to each individual incident alleged.

  206. The Court first turns to the DRC’s claims that the Ugandan
armed forces caused loss of life to the civilian population, committed acts
of torture and other forms of inhumane treatment, and destroyed villages
and dwellings of civilians. The Court observes that the report of the
Special Rapporteur of the Commission on Human Rights of 18 January
2000 (E/CN/4/2000/42, para. 112) refers to massacres carried out by
Ugandan troops in Beni on 14 November 1999. The Secretary-General in
his Third Report on MONUC concluded that Rwandan and Ugandan
armed forces “should be held accountable for the loss of life and the
property damage they inflicted on the civilian population of Kisangani”
(doc. S/2000/566 of 12 June 2000, para. 79). Security Council resolution
1304 (2000) of 16 June 2000 deplored “the loss of civilian lives, the threat
to the civilian population and the damage to property inflicted by the
forces of Uganda and Rwanda on the Congolese population”. Several
incidents of atrocities committed by Ugandan troops against the civilian
population, including torture and killings, are referred to in the report of
the Special Rapporteur of the Commission on Human Rights of 1 Feb-
ruary 2001 (E/CN/4/2001/40, paras. 112, 148-151). MONUC’s special
report on the events in Ituri, January 2002-December 2003 (doc. S/2004/
573 of 16 July 2004, paras. 19, 42-43, 62) contains much evidence of
direct involvement by UPDF troops, in the context of the Hema-Lendu
ethnic conflict in Ituri, in the killings of civilians and the destruction
of their houses. In addition to particular incidents, it is stated that
“[h]undreds of localities were destroyed by UPDF and the Hema South
militias” (para. 21) ; “UPDF also carried out widespread bombing
and destruction of hundreds of villages from 2000 to 2002” (para. 27).

  207. The Court therefore finds the coincidence of reports from credible
sources sufficient to convince it that massive human rights violations and
grave breaches of international humanitarian law were committed by the
UPDF on the territory of the DRC.

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240                    ARMED ACTIVITIES (JUDGMENT)

   208. The Court further finds that there is sufficient evidence of a reli-
able quality to support the DRC’s allegation that the UPDF failed to
protect the civilian population and to distinguish between combatants
and non-combatants in the course of fighting against other troops, espe-
cially the FAR. According to the report of the inter-agency assessment
mission to Kisangani (established pursuant to paragraph 14 of Security
Council resolution 1304 (2000) (doc. S/2000/1153 of 4 December 2000,
paras. 15-16)), the armed conflict between Ugandan and Rwandan forces
in Kisangani led to

      “fighting spreading into residential areas and indiscriminate shelling
      occurring for 6 days . . .
         Over 760 civilians were killed, and an estimated 1,700 wounded.
      More than 4,000 houses were partially damaged, destroyed or made
      uninhabitable. Sixty-nine schools were shelled, and other public
      buildings were badly damaged. Medical facilities and the cathedral
      were also damaged during the shelling, and 65,000 residents were
      forced to flee the fighting and seek refuge in nearby forests.”

MONUC’s special report on the events in Ituri, January 2002-December
2003 (doc. S/2004/573 of 16 July 2004, para. 73) states that on 6 and
7 March 2003,
      “during and after fighting between UPC [Union des patriotes con-
      golais] and UPDF in Bunia, several civilians were killed, houses and
      shops were looted and civilians were wounded by gunshots . . . Stray
      bullets reportedly killed several civilians ; others had their houses
      shelled.” (Para. 73.)
In this context, the Court notes that indiscriminate shelling is in itself a
grave violation of humanitarian law.
   209. The Court considers that there is also persuasive evidence that the
UPDF incited ethnic conflicts and took no action to prevent such con-
flicts in Ituri district. The reports of the Special Rapporteur of the Com-
mission on Human Rights (doc. A/55/403 of 20 September 2000, para. 26
and E/CN/4/2001/40 of 1 February 2001, para. 31) state that the Ugan-
dan presence in Ituri caused a conflict between the Hema (of Ugandan
origin) and the Lendu. According to these reports, land was seized from
the Lendu by the Hema with the encouragement and military support of
Ugandan soldiers. The reports also state that the confrontations in August
2000 resulted in some 10,000 deaths and the displacement of some 50,000
people, and that since the beginning of the conflict the UPDF had failed
to take action to put an end to the violence. The Sixth Report of the
Secretary-General on MONUC (doc. S/2001/128 of 12 February 2001,
para. 56) stated that “UPDF troops stood by during the killings and
failed to protect the civilians”. It is also indicated in MONUC’s special

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241                    ARMED ACTIVITIES (JUDGMENT)

report on the events in Ituri, January 2002-December 2003 (doc. S/2004/
573 of 16 July 2004, para. 6), that

      “Ugandan army commanders already present in Ituri, instead of try-
      ing to calm the situation, preferred to benefit from the situation and
      support alternately one side or the other according to their political
      and financial interests”.

The above reports are consistent in the presentation of facts, support
each other and are corroborated by other credible sources, such as the
HRW Report “Ituri : Covered in Blood. Ethnically Targeted Violence in
Northeastern DR Congo”, July 2003 (available at http ://hrw.org/reports/
2003/ituri0703/).

   210. The Court finds that there is convincing evidence of the training
in UPDF training camps of child soldiers and of the UPDF’s failure to
prevent the recruitment of child soldiers in areas under its control. The
Fifth Report of the Secretary-General on MONUC (doc. S/2000/1156 of
6 December 2000, para. 75) refers to the confirmed “cross-border depor-
tation of recruited Congolese children from the Bunia, Beni and Butembo
region to Uganda”. The Eleventh Report of the Secretary-General on
MONUC (doc. S/2002/621 of 5 June 2002, para. 47) points out that the
local UPDF authorities in and around Bunia in Ituri district “have failed
to prevent the fresh recruitment or re-recruitment of children” as child
soldiers. MONUC’s special report on the events in Ituri, January 2002-
December 2003 (doc. S/2004/573 of 16 July 2004, para. 148) refers to
several incidents where Congolese children were transferred to UPDF
training camps for military training.

   211. Having examined the case file, the Court considers that it has
credible evidence sufficient to conclude that the UPDF troops committed
acts of killing, torture and other forms of inhumane treatment of the
civilian population, destroyed villages and civilian buildings, failed to dis-
tinguish between civilian and military targets and to protect the civilian
population in fighting with other combatants, incited ethnic conflict and
took no steps to put an end to such conflicts, was involved in the training
of child soldiers, and did not take measures to ensure respect for human
rights and international humanitarian law in the occupied territories.

  212. With regard to the claim by the DRC that Uganda carried out a

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242                   ARMED ACTIVITIES (JUDGMENT)

deliberate policy of terror, confirmed in its view by the almost total impu-
nity of the soldiers and officers responsible for the alleged atrocities com-
mitted on the territory of the DRC, the Court, in the absence of specific
evidence supporting this claim, does not consider that this allegation has
been proven. The Court, however, wishes to stress that the civil war and
foreign military intervention in the DRC created a general atmosphere of
terror pervading the lives of the Congolese people.

                                     *
   213. The Court turns now to the question as to whether acts and omis-
sions of the UPDF and its officers and soldiers are attributable to
Uganda. The conduct of the UPDF as a whole is clearly attributable to
Uganda, being the conduct of a State organ. According to a well-estab-
lished rule of international law, which is of customary character, “the
conduct of any organ of a State must be regarded as an act of that State”
(Difference Relating to Immunity from Legal Process of a Special Rap-
porteur of the Commission on Human Rights, Advisory Opinion, I.C.J.
Reports 1999 (I), p. 87, para. 62). The conduct of individual soldiers and
officers of the UPDF is to be considered as the conduct of a State organ.
In the Court’s view, by virtue of the military status and function of
Ugandan soldiers in the DRC, their conduct is attributable to Uganda.
The contention that the persons concerned did not act in the capacity of
persons exercising governmental authority in the particular circumstances,
is therefore without merit.

  214. It is furthermore irrelevant for the attribution of their conduct to
Uganda whether the UPDF personnel acted contrary to the instructions
given or exceeded their authority. According to a well-established rule of
a customary nature, as reflected in Article 3 of the Fourth Hague Con-
vention respecting the Laws and Customs of War on Land of 1907 as
well as in Article 91 of Protocol I additional to the Geneva Conventions
of 1949, a party to an armed conflict shall be responsible for all acts by
persons forming part of its armed forces.

                                     *
   215. The Court, having established that the conduct of the UPDF and
of the officers and soldiers of the UPDF is attributable to Uganda, must
now examine whether this conduct constitutes a breach of Uganda’s
international obligations. In this regard, the Court needs to determine the
rules and principles of international human rights law and international
humanitarian law which are relevant for this purpose.

  216. The Court first recalls that it had occasion to address the issues of
the relationship between international humanitarian law and interna-

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243                   ARMED ACTIVITIES (JUDGMENT)

tional human rights law and of the applicability of international human
rights law instruments outside national territory in its Advisory Opinion
of 9 July 2004 on the Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory. In this Advisory Opinion the
Court found that
      “the protection offered by human rights conventions does not cease
      in case of armed conflict, save through the effect of provisions for
      derogation of the kind to be found in Article 4 of the International
      Covenant on Civil and Political Rights. As regards the relationship
      between international humanitarian law and human rights law, there
      are thus three possible situations : some rights may be exclusively
      matters of international humanitarian law ; others may be exclu-
      sively matters of human rights law ; yet others may be matters of
      both these branches of international law.” (I.C.J. Reports 2004,
      p. 178, para. 106.)
It thus concluded that both branches of international law, namely inter-
national human rights law and international humanitarian law, would
have to be taken into consideration. The Court further concluded that
international human rights instruments are applicable “in respect of acts
done by a State in the exercise of its jurisdiction outside its own terri-
tory”, particularly in occupied territories (ibid., pp. 178-181, paras. 107-
113).
   217. The Court considers that the following instruments in the fields of
international humanitarian law and international human rights law are
applicable, as relevant, in the present case :
— Regulations Respecting the Laws and Customs of War on Land
  annexed to the Fourth Hague Convention of 18 October 1907.
  Neither the DRC nor Uganda are parties to the Convention. How-
  ever, the Court reiterates that “the provisions of the Hague Regula-
  tions have become part of customary law” (Legal Consequences of
  the Construction of a Wall in the Occupied Palestinian Territory,
  Advisory Opinion, I.C.J. Reports 2004, p. 172, para. 89) and as
  such are binding on both Parties ;
— Fourth Geneva Convention relative to the Protection of Civilian
  Persons in Time of War of 12 August 1949. The DRC’s (at the
  time Republic of the Congo (Léopoldville)) notification of succession
  dated 20 February 1961 was deposited on 24 February 1961, with
  retroactive effect as from 30 June 1960, the date on which the DRC
  became independent ; Uganda acceded on 18 May 1964 ;
— International Covenant on Civil and Political Rights of 19 December
  1966. The DRC (at the time Republic of Zaire) acceded to the
  Covenant on 1 November 1976 ; Uganda acceded on 21 June 1995 ;
— Protocol Additional to the Geneva Conventions of 12 August 1949,
  and relating to the Protection of Victims of International Armed
  Conflicts (Protocol I), 8 June 1977. The DRC (at the time Republic of

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244                    ARMED ACTIVITIES (JUDGMENT)

  Zaire) acceded to the Protocol on 3 June 1982 ; Uganda acceded on
  13 March 1991 ;
— African Charter on Human and Peoples’ Rights of 27 June 1981. The
  DRC (at the time Republic of Zaire) acceded to the Charter on
  20 July 1987 ; Uganda acceded on 10 May 1986 ;
— Convention on the Rights of the Child of 20 November 1989. The
  DRC (at the time Republic of Zaire) ratified the Convention on
  27 September 1990 and Uganda on 17 August 1990 ;
— Optional Protocol to the Convention on the Rights of the Child on
  the Involvement of Children in Armed Conflict of 25 May 2000. The
  Protocol entered into force on 12 February 2002. The DRC ratified
  the Protocol on 11 November 2001 ; Uganda acceded on 6 May 2002.
  218. The Court moreover emphasizes that, under common Article 2 of
the four Geneva Conventions of 12 August 1949,
      “[i]n addition to the provisions which shall be implemented in peace
      time, the present Convention shall apply to all cases of declared war
      or of any other armed conflict which may arise between two or more
      of the High Contracting Parties, even if the state of war is not
      recognized by one of them.
         The Convention shall also apply to all cases of partial or total
      occupation of the territory of a High Contracting Party, even if the
      said occupation meets with no armed resistance.”
  219. In view of the foregoing, the Court finds that the acts committed
by the UPDF and officers and soldiers of the UPDF (see paragraphs 206-
211 above) are in clear violation of the obligations under the Hague
Regulations of 1907, Articles 25, 27 and 28, as well as Articles 43, 46 and
47 with regard to obligations of an occupying Power. These obligations
are binding on the Parties as customary international law. Uganda also
violated the following provisions of the international humanitarian law
and international human rights law instruments, to which both Uganda
and the DRC are parties :

— Fourth Geneva Convention, Articles 27 and 32 as well as Article 53
  with regard to obligations of an occupying Power ;

— International Covenant on Civil and Political Rights, Articles 6, para-
  graph 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.

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245                   ARMED ACTIVITIES (JUDGMENT)

   220. The Court thus concludes that Uganda is internationally respon-
sible for violations of international human rights law and international
humanitarian law committed by the UPDF and by its members in the
territory of the DRC and for failing to comply with its obligations as an
occupying Power in Ituri in respect of violations of international human
rights law and international humanitarian law in the occupied territory.

   221. The Court finally would point out that, while it has pronounced
on the violations of international human rights law and international
humanitarian law committed by Ugandan military forces on the territory
of the DRC, it nonetheless observes that the actions of the various parties
in the complex conflict in the DRC have contributed to the immense suf-
fering faced by the Congolese population. The Court is painfully aware
that many atrocities have been committed in the course of the conflict. It
is incumbent on all those involved in the conflict to support the peace
process in the DRC and other peace processes in the Great Lakes area, in
order to ensure respect for human rights in the region.

                                  * * *

             ILLEGAL EXPLOITATION OF NATURAL RESOURCES
  222. In its third submission the DRC requests the Court to adjudge
and declare :
    “3. That the Republic of Uganda, by engaging in the illegal exploi-
        tation of Congolese natural resources, by pillaging its assets and
        wealth, by failing to take adequate measures to prevent the ille-
        gal exploitation of the resources of the DRC by persons under
        its jurisdiction or control, and/or failing to punish persons under
        its jurisdiction or control having engaged in the above-men-
        tioned acts, has violated the following principles of conventional
        and customary law :

        — the applicable rules of international humanitarian law ;
        — respect for the sovereignty of States, including over their
           natural resources ;
        — the duty to promote the realization of the principle of equal-
           ity of peoples and of their right of self-determination, and
           consequently to refrain from exposing peoples to foreign
           subjugation, domination or exploitation ;
        — the principle of non-interference in matters within the
           domestic jurisdiction of States, including economic mat-
           ters.”
  223. The DRC alleges that, following the invasion of the DRC by

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246                   ARMED ACTIVITIES (JUDGMENT)

Uganda in August 1998, the Ugandan troops “illegally occupying” Con-
golese territory, acting in collaboration with Congolese rebel groups
supported by Uganda, systematically looted and exploited the assets and
natural resources of the DRC. According to the DRC, after the system-
atic looting of natural resources, the Ugandan military and the rebel
groups which it supported “moved on to another phase in the expropria-
tion of the wealth of Congo, by direct exploitation of its resources” for
their own benefit. The DRC contends that the Ugandan army took out-
right control of the entire economic and commercial system in the occu-
pied areas, with almost the entire market in consumer goods being con-
trolled by Ugandan companies and businessmen. The DRC further claims
that UDPF forces have engaged in hunting and plundering of protected
species. The DRC charges that the Ugandan authorities did nothing to
put an end to these activities and indeed encouraged the UPDF, Ugan-
dan companies and rebel groups supported by Uganda to exploit natural
resources on Congolese territory.

   224. The DRC maintains that the highest Ugandan authorities, includ-
ing President Museveni, were aware of the UPDF forces’ involvement in
the plundering and illegal exploitation of the natural resources of the
DRC. Moreover, the DRC asserts that these activities were tacitly
supported or even encouraged by the Ugandan authorities, “who saw
in them a way of financing the continuation of the war in the DRC,
‘rewarding’ the military involved in this operation and opening up new
markets to Ugandan companies”.
   225. The DRC claims that the illegal exploitation, plundering and
looting of the DRC’s natural resources by Uganda have been confirmed
in a consistent manner by a variety of independent sources, among them
the Porter Commission Report, the United Nations Panel reports and
reports of national organs and non-governmental organizations. Accord-
ing to the DRC, the facts which it alleges are also corroborated by the
economic data analysed in various reports by independent experts.

  226. The DRC contends that illegal exploitation, plundering and loot-
ing of the DRC’s natural resources constitute violations by Uganda of
“the sovereignty and territorial integrity of the DRC, more specifically of
the DRC’s sovereignty over its natural resources”. In this regard the
DRC refers to the right of States to their natural resources and cites Gen-
eral Assembly resolution 1803 (XVII) on Permanent Sovereignty over
Natural Resources, adopted on 14 December 1962 ; the Declaration on
the Establishment of a New International Economic Order contained in
United Nations General Assembly resolution 3201 (S.VI) of 1 May 1974
and the Charter of Economic Rights and Duties of States, adopted by the
United Nations General Assembly in its resolution 3281 (XXIX) of
12 December 1974.

  227. The DRC claims that Uganda in all circumstances is responsible

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247                   ARMED ACTIVITIES (JUDGMENT)

for acts of plunder and illegal exploitation of the resources of the
DRC committed by officers and soldiers of the UPDF as an organ of the
Republic of Uganda. For the DRC it is not relevant whether members
of the Ugandan army acted under, or contrary to, official orders from
their Government or in an official or private capacity.
   228. Turning to the duty of vigilance, the DRC argues that, in relation
to the obligation to respect the sovereignty of States over their natural
resources, this duty implies that a State should take adequate measures to
ensure that its military forces, nationals or groups that it controls do not
engage in illegal exploitation of natural resources on the territory of
another State. The DRC claims that all activities involving exploitation
of natural resources conducted by Ugandan companies and nationals
and rebel movements supported by Uganda were acts of illegal exploita-
tion. The DRC further contends that Uganda took no proper steps to
bring to an end the illegal exploitation of the natural resources of the
DRC by members of Ugandan military, private companies or nationals
and by the Congolese rebel movements that it controlled and supported,
thus violating its duty of vigilance.

   229. The DRC asserts that, by engaging in the illegal exploitation,
plundering and looting of the DRC’s natural resources, Uganda also vio-
lated its obligations as an occupying Power under the jus in bello.
According to the DRC, “the detailed rules of the law of armed conflict in
relation to the exploitation of natural resources have to be considered
against the background of this fundamental principle of permanent sov-
ereignty over natural resources”. This principle, in the view of the DRC,
continues to apply at all times, including during armed conflict and occu-
pation.

                                     *
   230. For its part, Uganda maintains that the DRC has not provided
reliable evidence to corroborate its allegations regarding the looting and
illegal exploitation of natural resources of the DRC by Uganda. It claims
that neither the United Nations Panel reports nor the Porter Commission
Report can be considered as supporting the DRC’s allegations. More-
over, according to Uganda, the limited nature of its intervention is
inconsistent with the DRC’s contention that Uganda occupied the
eastern Congo in order to exploit natural resources. Nor, in view of
this fact, could Uganda exercise the pervasive economic control required
to exploit the areas as alleged by the DRC.

   231. Uganda further denies that it has violated the principle of the
Congolese people’s sovereignty over its natural resources. It maintains
that this principle, “which was shaped in a precise historical context (that
of decolonization) and has a very precise purpose”, cannot be applicable
in the context of the present case. Uganda claims that individual acts of

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248                    ARMED ACTIVITIES (JUDGMENT)

members of the Ugandan military forces committed in their private
capacity and in violation of orders and instructions cannot serve as basis
for attributing to Uganda a wrongful act violating the principle of the
permanent sovereignty of Congolese people over their natural resources.
   232. Uganda likewise denies that it violated its duty of vigilance with
regard to acts of illegal exploitation in the territories where its troops
were present. Uganda does not agree with the contention that it had a
duty of vigilance with regard to the Congolese rebel groups, asserting
that it did not control those groups and had no power over their admin-
istrative acts. Uganda also maintains that, “within the limits of its capa-
bilities, it exercised a high degree of vigilance to ensure that its nationals
did not, through their actions, infringe the Congolese people’s right to
control their natural resources”.
   233. Uganda also contests the view that the alleged breach of its “duty
of vigilance” is founded on Uganda’s failure to prohibit trade “between
its nationals and the territories controlled by the rebels in eastern Congo”.
In Uganda’s view, the de facto authority of Congolese rebel movements
established in eastern Congo could not affect the commercial relations
between the eastern Congo, Uganda and several other States, which were
maintained in the interests of the local populations and essential to the
populations’ survival, and therefore “did not impose an obligation to
apply commercial sanctions”.

   234. Uganda states that the DRC’s contentions that Uganda failed to
take action against illegal activity are without merit. In this regard it
refers to a radio broadcast by President Museveni in December 1998,
which made “it clear that no involvement of the members of the Ugan-
dan armed forces in commercial activities in eastern Congo would be
tolerated”. Furthermore, Uganda points out that “the Porter Commission
found that there was no Ugandan governmental policy to exploit the
DRC’s natural resources”. It maintains that the Porter Commission con-
firmed that the Ugandan Government’s policy was to forbid its officers
and soldiers from engaging in any business or commercial activities in the
DRC. However, in cases where the Porter Commission found that there
was evidence to support allegations that individual soldiers engaged in
commercial activities and looting “acting in a purely private capacity for
their personal enrichment”, the Government of Uganda accepted the
Commission’s recommendations to initiate criminal investigations against
the alleged offenders.

  235. Uganda recognizes that, as found by the Porter Commission,
there were instances of illegal commercial activities or looting committed
by certain members of the Ugandan military forces acting in their private
capacity and in violation of orders and instructions given to them “by the
highest State authorities”. However, Uganda maintains that these indi-
vidual acts cannot be characterized as “internationally wrongful acts” of

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249                   ARMED ACTIVITIES (JUDGMENT)

Uganda. For Uganda, violations by Ugandan nationals of the internal
law of Uganda or of certain Congolese rules and practices in the territo-
ries where rebels exercised de facto administrative authority, referred to
by the Porter Commission, do not necessarily constitute an internation-
ally wrongful act, “for it is well known that the originating act giving rise
to international responsibility is not an act characterized as ‘illegal’ by
the domestic law of the State but an ‘internationally wrongful act’
imputable to a State”.
   236. Finally, Uganda asserts that the DRC neither specified precisely
the wrongful acts for which it seeks to hold Uganda internationally
responsible nor did it demonstrate that “it suffered direct injury as a
result of acts which it seeks to impute to Uganda”. In this regard Uganda
refers to the Porter Commission, which, according to Uganda, concluded
that “the overwhelming majority, if not all, of the allegations concerning
the exploitation of the DRC’s forest and agricultural resources by Uganda
or by Ugandan soldiers”, were not proven ; that several allegations of
looting were also unfounded; and that Uganda “had at no time intended
to exploit the natural resources of the DRC or to use those resources to
‘finance the war’ and that it did not do so”.

                                    *   *

FINDINGS OF THE COURT CONCERNING ACTS OF ILLEGAL EXPLOITATION OF
                       NATURAL RESOURCES

   237. The Court observes that in order to substantiate its allegations
the DRC refers to the United Nations Panel reports and to the Porter
Commission Report. The Court has already expressed its view with
regard to the evidentiary value of the Porter Commission materials in
general (see paragraph 61 above) and considers that both the Porter
Commission Report, as well as the United Nations Panel reports, to the
extent that they have later proved to be probative, furnish sufficient and
convincing evidence for it to determine whether or not Uganda engaged
in acts of looting, plundering and illegal exploitation of the DRC’s natu-
ral resources. Taking this into account, in order to rule on the third sub-
mission of the DRC, the Court will draw its conclusions on the basis of
the evidence it finds reliable.
   In reaching its decision on the DRC’s claim, it is not necessary for the
Court to make findings of fact with regard to each individual incident
alleged.
   238. According to the Porter Commission Report, the written message
sent by General Kazini in response to the radio message broadcast by the
Ugandan President in December 1998 demonstrated that the General
was aware of problems of conduct of some UPDF officers, that he did
not take any “real action until the matter became public” and that he did

85

250                    ARMED ACTIVITIES (JUDGMENT)

not inform the President. The Commission further states that it follows
from General Kazini’s message that he, in point of fact, admitted that the
allegation that “some top officers in the UPDF were planning from the
beginning to do business in Congo was generally true” ; “that Comman-
ders in business partnership with Ugandans were trading in the DRC,
about which General Kazini took no action” ; and that Ugandan “mili-
tary aircraft were carrying Congolese businessmen into Entebbe, and
carrying items which they bought in Kampala back to the Congo”. The
Commission noted that, while certain orders directed against the use of
military aircraft by businessmen were made by General Kazini, that prac-
tice nonetheless continued. The Commission also referred to a radio mes-
sage of General Kazini in which he said that “officers in the Colonel
Peter Kerim sector, Bunia and based at Kisangani Airport were engaging
in business contrary to the presidential radio message”. The Commission
further stated that General Kazini was aware that officers and men of the
UPDF were involved in gold mining and trade, smuggling and looting of
civilians.

  239. The Commission noted that General Kazini’s radio messages in
response to the reports about misconduct of the UPDF did not intend, in
point of fact, to control this misconduct. It stated as follows :

        “There is no doubt that his purpose in producing these messages
      was to try to show that he was taking action in respect of these
      problems . . . There appears to have been little or no action taken as
      a result of these messages . . . all this correspondence was intended
      by General Kazini to cover himself, rather than to prompt action.
      There also appears to be litle or no follow up to the orders given.”
   240. The Commission found that General Kazini was “an active sup-
porter in the Democratic Republic of the Congo of Victoria, an organiza-
tion engaged in smuggling diamonds through Uganda : and it is difficult
to believe that he was not profiting for himself from the operation”. The
Commission explained that the company referred to as “Victoria” in its
Report dealt “in diamonds, gold and coffee which it purchased from
Isiro, Bunia, Bumba, Bondo, Buta and Kisangani” and that it paid taxes
to the MLC.
   241. The Commission further recognized that there had been exploita-
tion of the natural resources of the DRC since 1998, and indeed from
before that. This exploitation had been carried out, inter alia, by senior
army officers working on their own and through contacts inside the
DRC ; by individual soldiers taking advantage of their postings ; by cross-
border trade and by private individuals living within Uganda. There were
instances of looting, “about which General Kazini clearly knew as he sent
a radio message about it. This Commission is unable to exclude the pos-
sibility that individual soldiers of the UPDF were involved, or that they

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251                  ARMED ACTIVITIES (JUDGMENT)

were supported by senior officers.” The Commission’s investigations
“reveal that there is no doubt that both RCD and UPDF soldiers were
imposing a gold tax, and that it is very likely that UPDF soldiers were
involved in at least one mining accident”.

   242. Having examined the case file, the Court finds that it does not
have at its disposal credible evidence to prove that there was a govern-
mental policy 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. At the same time, the
Court considers that it has 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 exploita-
tion of the DRC’s natural resources and that the military authorities did
not take any measures to put an end to these acts. (Such acts are referred
to in a number of paragraphs in the Porter Commission Report, in
particular, paragraphs 13.1. “UPDF Officers conducting business”,
13.2. “Gold Mining”, 13.4. “Looting”, 13.5. “Smuggling”, 14.4. “Alle-
gations against top UPDF Officers”, 14.5. “Allegations against General
Kazini”, 15.7. “Organised Looting”, 20.3. “General James Kazini” and
21.3.4. “The Diamond Link : General Kazini”.)

   243. As the Court has already noted (see paragraph 213 above),
Uganda is 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. The Court further recalls (see paragraph 214 above) that it is also
irrelevant for the purposes of attributing their conduct to Uganda whether
UPDF officers and soldiers acted contrary to instructions given or
exceeded their authority. Thus the Court must now examine whether acts
of looting, plundering and exploitation of the DRC’s natural resources
by officers and soldiers of the UPDF and the failure of the Ugandan
authorities to take adequate measures to ensure that such acts were not
committed constitute a breach of Uganda’s international obligations.

  244. The Court finds that it cannot uphold the contention of the DRC
that Uganda violated the principle of the DRC’s sovereignty over its
natural resources (see paragraph 226 above). The Court recalls that the
principle of permanent sovereignty over natural resources is expressed
in General Assembly resolution 1803 (XVII) of 14 December 1962 and
further elaborated in the Declaration on the Establishment of a New
International Economic Order (General Assembly resolution 3201 (S.VI)
of 1 May 1974) and the Charter of Economic Rights and Duties of States
(General Assembly resolution 3281 (XXIX) of 12 December 1974). While
recognizing the importance of this principle, which is a principle of cus-
tomary international law, the Court notes that there is nothing in these
General Assembly resolutions which suggests that they are applicable to

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252                    ARMED ACTIVITIES (JUDGMENT)

the specific situation of looting, pillage and exploitation of certain natu-
ral resources by members of the army of a State militarily intervening in
another State, which is the subject-matter of the DRC’s third submission.
The Court does not believe that this principle is applicable to this type of
situation.

   245. As the Court has already stated (see paragraph 180 above), the
acts and omissions of members of Uganda’s military forces in the DRC
engage Uganda’s international responsibility in all circumstances, whether
it was an occupying Power in particular regions or not. Thus, whenever
members of the UPDF were involved in the looting, plundering and
exploitation of natural resources in the territory of the DRC, they acted
in violation of the jus in bello, which prohibits the commission of such
acts by a foreign army in the territory where it is present. The Court
notes in this regard that both Article 47 of the Hague Regulations of
1907 and Article 33 of the Fourth Geneva Convention of 1949 prohibit
pillage.
   The Court further observes that both the DRC and Uganda are parties
to the African Charter on Human and Peoples’ Rights of 27 June 1981,
which in paragraph 2 of Article 21, states that “[i]n case of spoliation
the dispossessed people shall have the right to the lawful recovery of its
property as well as to an adequate compensation”.
   246. The Court finds that there is sufficient evidence to support the
DRC’s claim that Uganda violated its duty of vigilance by not taking
adequate measures to ensure that its military forces did not engage in the
looting, plundering and exploitation of the DRC’s natural resources. As
already noted, it is apparent that, despite instructions from the Ugandan
President to ensure that such misconduct by UPDF troops cease, and
despite assurances from General Kazini that he would take matters in
hand, no action was taken by General Kazini and no verification was
made by the Ugandan Government that orders were being followed up
(see paragraphs 238-239 above). In particular the Court observes that the
Porter Commission stated in its Report that

      “[t]he picture that emerges is that of a deliberate and persistent
      indiscipline by commanders in the field, tolerated, even encouraged
      and covered by General Kazini, as shown by the incompetence or
      total lack of inquiry and failure to deal effectively with breaches of
      discipline at senior levels”.
(Also of relevance in the Porter Commission Report are paragraphs 13.1
“UPDF Officers conducting business”, 13.5 “Smuggling” and 14.5 “Alle-
gations against General Kazini”). It follows that by this failure to act
Uganda violated its international obligations, thereby incurring its inter-
national responsibility. In any event, whatever measures had been taken
by its authorities, Uganda’s responsibility was nonetheless engaged by
the fact that the unlawful acts had been committed by members of its

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253                   ARMED ACTIVITIES (JUDGMENT)

armed forces (see paragraph 214 above).

  247. As for the claim that Uganda also failed to prevent the looting,
plundering and illegal exploitation of the DRC’s natural resources by
rebel groups, the Court has already found that the latter were not under
the control of Uganda (see paragraph 160 above). Thus, with regard to
the illegal activities of such groups outside of Ituri, it cannot conclude
that Uganda was in breach of its duty of vigilance.

   248. The Court further observes that the fact that Uganda was the
occupying Power in Ituri district (see paragraph 178 above) extends
Uganda’s obligation to take appropriate measures to prevent the looting,
plundering and exploitation of natural resources in the occupied territory
to cover private persons in this district and not only members of Ugan-
dan military forces. It is apparent from various findings of the Porter
Commission that rather than preventing the illegal traffic in natural
resources, including diamonds, high-ranking members of the UPDF facili-
tated such activities by commercial entities. In this regard, the Report of
the Commission mentions a company referred to as “Victoria” (see para-
graph 240 above), which operated, inter alia, in Bunia. In particular the
Report indicates that “General Kazini gave specific instructions to UPDF
Commanders in Isiro, Bunia, Beni, Bumba, Bondo and Buta to allow
the Company to do business uninterrupted in the areas under their
command”. (Also of relevance in the Report of the Commission are
paragraphs 18.5.1 “Victoria Group”, 20.3 “General James Kazini” and
21.3 “The Diamond Link”.)

  249. Thus the Court finds that it has been proven that Uganda has
not complied with its obligations as an occupying Power in Ituri district.
The Court would add that Uganda’s argument that any exploitation
of natural resources in the DRC was carried out for the benefit of
the local population, as permitted under humanitarian law, is not
supported by any reliable evidence.

  250. The Court concludes that it is in possession of sufficient credible
evidence to find that Uganda is internationally responsible for acts of
looting, plundering and exploitation of the DRC’s natural resources
committed by members of the UPDF in the territory of the DRC, for
violating its obligation of vigilance in regard to these acts and for failing
to comply with its obligations under Article 43 of the Hague Regulations
of 1907 as an occupying Power in Ituri in respect of all acts of looting,
plundering and exploitation of natural resources in the occupied terri-
tory.

                                   * * *
89

254                     ARMED ACTIVITIES (JUDGMENT)

LEGAL CONSEQUENCES OF VIOLATIONS OF INTERNATIONAL OBLIGATIONS BY
                           UGANDA

   251. The Court, having established that Uganda committed interna-
tionally wrongful acts entailing its international responsibility (see para-
graphs 165, 220 and 250 above), turns now to the determination of the
legal consequences which such responsibility involves.
   252. In its fourth submission the DRC requests the Court to adjudge
and declare :
         “4. (a) . . . . . . . . . . . . . . . . . . . . . . . . ;
       (b) that the Republic of Uganda shall cease forthwith all continu-
            ing internationally wrongful acts, and in particular its support
            for irregular forces operating in the DRC and its exploitation
            of Congolese wealth and natural resources ;

       (c) that the Republic of Uganda shall provide specific guarantees
           and assurances that it will not repeat the wrongful acts com-
           plained of ;
       (d) that the Republic of Uganda is under an obligation to the
           Democratic Republic of the Congo to make reparation for all
           injury caused to the latter by the violation of the obligations
           imposed by international law and set out in submissions 1, 2
           and 3 above ;
       (e) that the nature, form and amount of the reparation shall be
           determined by the Court, failing agreement thereon between
           the Parties, and that the Court shall reserve the subsequent pro-
           cedure for that purpose.”
   253. The DRC claims that, as the first legal consequence of the estab-
lishment of Uganda’s international responsibility, the latter is under an
obligation to cease forthwith all continuing internationally wrongful acts.
According to the DRC’s Memorial, this obligation of cessation covers, in
particular, the occupation of Congolese territory, the support for irregu-
lar forces operating in the DRC, the unlawful detention of Congolese
nationals and the exploitation of Congolese wealth and natural resources.
In its Reply the DRC refers to the occupation of Congolese territory, the
support for irregular forces operating in the DRC and the exploitation of
Congolese wealth and natural resources. In its final submission presented
at the end of the oral proceedings, the DRC, in view of the withdrawal of
Ugandan troops from the territory of the DRC, asks that Uganda cease
from providing support for irregular forces operating in the DRC and
cease from exploiting Congolese wealth and natural resources.

                                      *
     254. In answer to the question by Judge Vereshchetin (see para-

90

255                   ARMED ACTIVITIES (JUDGMENT)

graph 22 above), the DRC explained that, while its claims relating to the
occupation of the territory of the DRC covered the period from 6 August
1998 to 2 June 2003, other claims including those of new military actions,
new acts of support to irregular forces, as well as continuing illegal
exploitation of natural resources, covered the period from 2 August 1998
until the end of the oral proceedings. The Court notes, however, that it
has not been presented with evidence to support allegations with regard
to the period after 2 June 2003.

   In particular, the Court observes that there is no evidence in the case
file which can corroborate the DRC’s allegation that at present Uganda
supports irregular forces operating in the DRC and continues to be
involved in the exploitation of Congolese natural resources. Thus, the
Court does not find it established that Uganda, following the withdrawal
of its troops from the territory of the DRC in June 2003, continues to
commit the internationally wrongful acts specified by the DRC. The
Court thus concludes that the DRC’s request that Uganda be called upon
to cease the acts referred to in its submission 4 (b) cannot be upheld.

                                   *       *

   255. The DRC further requests the Court to rule that Uganda provide
specific guarantees and assurances of non-repetition of the wrongful acts
complained of. The DRC claims that this request is justified by “the
threats which accompanied the troop withdrawal in May 2003”. In this
regard it alleges that in April 2003 Mr. James Wapakhabulo, the then
Minister for Foreign Affairs of Uganda, made a statement “according to
which ‘the withdrawal of our troops from the Democratic Republic of
the Congo does not mean that we will not return there to defend our
security !’ ”. As to the form of the guarantees and assurances of non-
repetition, the DRC, referring to existing international practice, requests
from Uganda “a solemn declaration that it will in future refrain from
pursuing a policy that violates the sovereignty of the Democratic
Republic of the Congo and the rights of its population” ; in addition,
it “demands that specific instructions to that effect be given by the
Ugandan authorities to their agents”.

                                       *

  256. In this respect the Court has taken judicial notice of the Tripartite
Agreement on Regional Security in the Great Lakes, signed on 26 Octo-
ber 2004 by the DRC, Rwanda and Uganda. In the Preamble of this
Agreement the Parties emphasize “the need to ensure that the principles
of good neighbourliness, respect for the sovereignty, territorial integrity,
and non-interference in the internal affairs of sovereign states are

91

256                   ARMED ACTIVITIES (JUDGMENT)

respected, particularly in the region”. Article I indicates that one of the
objectives of the Agreement is to “[e]nsure respect for the sovereignty and
territorial integrity of the countries in the region and cessation of any
support for armed groups or militias, in accordance with relevant reso-
lutions of the United Nations and other rules of international law”.
Finally, in paragraph 1 of Article II, “[t]he Parties reiterate their commit-
ment to fulfil their obligations and undertakings under existing agree-
ments and the relevant resolutions of the United Nations Security Coun-
cil”. The Parties further agreed to establish a Tripartite Joint Commission,
which, inter alia, “shall implement the terms of this Agreement and
ensure that the objectives of this Agreement are being met”.

   257. The Court considers that, if a State assumes an obligation in an
international agreement to respect the sovereignty and territorial integ-
rity of the other States parties to that agreement (an obligation which
exists also under general international law) and a commitment to co-
operate with them in order to fulfil such obligation, this expresses a clear
legally binding undertaking that it will not repeat any wrongful acts. In
the Court’s view, the commitments assumed by Uganda under the Tri-
partite Agreement must be regarded as meeting the DRC’s request for
specific guarantees and assurances of non-repetition. The Court expects
and demands that the Parties will respect and adhere to their obligations
under that Agreement and under general international law.

                                    *   *

   258. The DRC also asks the Court to adjudge and declare that Uganda
is under an obligation to make reparation to the DRC for all injury
caused by the violation by Uganda of its obligations under international
law. The DRC contends that the internationally wrongful acts attri-
butable to Uganda which engaged the latter’s international responsi-
bility, namely “years of invasion, occupation, fundamental human rights
violations and plundering of natural resources”, caused “massive war
damage” and therefore entail an obligation to make reparation. The DRC
acknowledges that “for the purposes of determining the extent of repara-
tion it must specify the nature of the injury and establish the causal link
with the initial wrongful act”. However, at this stage of the proceedings
the DRC requests a general declaration by the Court establishing the
principle that reparation is due, with the determination of the exact
amount of the damages and the nature, form and amount of the repara-
tion, failing agreement between the Parties, being deferred until a later
stage in the proceedings. The DRC points out that such a procedure is
“in accordance with existing international jurisprudence” and refers, in
particular, to the Court’s Judgment on the merits in the case concerning

92

257                   ARMED ACTIVITIES (JUDGMENT)

Military and Paramilitary Activities in and against Nicaragua (Nicara-
gua v. United States of America).

                                     *

   259. The Court observes that it is well established in general interna-
tional 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 (see Factory at Chorzów, Jurisdiction, 1927, P.C.I.J.,
Series A, No. 9, p. 21 ; Gabčíkovo-Nagymaros Project (Hungary/Slova-
kia), Judgment, I.C.J. Reports 1997, p. 81, para. 152 ; Avena and Other
Mexican Nationals (Mexico v. United States of America), Judgment,
I.C.J. Reports 2004, p. 59, para. 119). Upon examination of the case file,
given the character of the internationally wrongful acts for which Uganda
has been found responsible (illegal use of force, violation of sovereignty
and territorial integrity, military intervention, occupation of Ituri, viola-
tions of international human rights law and of international humani-
tarian law, looting, plunder and exploitation of the DRC’s natural
resources), the Court considers that those acts resulted in injury to the
DRC and to persons on its territory. Having satisfied itself that this
injury was caused to the DRC by Uganda, the Court finds that Uganda
has an obligation to make reparation accordingly.
   260. The Court further considers appropriate the request of the DRC
for the nature, form and amount of the reparation due to it to be deter-
mined by the Court, failing agreement between the Parties, in a subse-
quent phase of the proceedings. The DRC would thus be given the
opportunity to demonstrate and prove the exact injury that was suffered
as a result of specific actions of Uganda constituting internationally
wrongful acts for which it is responsible. It goes without saying, however,
as the Court has had the opportunity to state in the past, “that in the
phase of the proceedings devoted to reparation, neither Party may call in
question such findings in the present Judgment as have become res judi-
cata” (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Merits, Judgment, I.C.J.
Reports 1986, p. 143, para. 284).
   261. The Court also notes that the DRC has stated its intention to
seek initially to resolve the issue of reparation by way of direct negotia-
tions with Uganda and to submit the question to the Court only “failing
agreement thereon between the parties”. It is not for the Court to deter-
mine the final result of these negotiations to be conducted by the Parties.
In such negotiations, the Parties should seek in good faith an agreed solu-
tion based on the findings of the present Judgment.

                                   * * *
93

258                   ARMED ACTIVITIES (JUDGMENT)

     COMPLIANCE WITH THE COURT’S ORDER ON PROVISIONAL MEASURES

  262. In its fifth submission the DRC requests the Court to adjudge
and declare
      “5. That the Republic of Uganda has violated the Order of the
          Court on provisional measures of 1 July 2000, in that it has
          failed to comply with the following provisional measures :

          “(1) both Parties must, forthwith, prevent and refrain from any
               action, and in particular any armed action, which might
               prejudice the rights of the other Party in respect of what-
               ever judgment the Court may render in the case, or which
               might aggravate or extend the dispute before the Court or
               make it more difficult to resolve ;

           (2) both Parties must, forthwith, take all measures necessary
               to comply with all of their obligations under international
               law, in particular those under the United Nations Charter
               and the Charter of the Organization of African Unity, and
               with United Nations Security Council resolution 1304
               (2000) of 16 June 2000 ;

           (3) both Parties must, forthwith, take all measures necessary
               to ensure full respect within the zone of conflict for funda-
               mental human rights and for the applicable provisions of
               humanitarian law’.”
   263. The Court observes that its “orders on provisional measures
under Article 41 [of the Statute] have binding effect” (LaGrand (Ger-
many v. United States of America), Judgment, I.C.J. Reports 2001,
p. 506, para. 109). The Court recalls that the purpose of provisional
measures is to protect the rights of either party, pending the determina-
tion of the merits of the case. The Court’s Order of 1 July 2000 on pro-
visional measures created legal obligations which both Parties were
required to comply with.
   264. With regard to the question whether Uganda has complied with
the obligations incumbent upon it as a result of the Order of 1 July 2000,
the Court observes that the Order indicated three provisional measures,
as referred to in the DRC’s fifth submission. The Court notes that the
DRC put forward no specific evidence demonstrating that after July 2000
Uganda committed acts in violation of each of the three provisional
measures indicated by the Court. The Court however observes that in the
present Judgment it has found that Uganda is responsible for acts in vio-
lation of international human rights law and international humanitarian
law carried out by its military forces in the territory of the DRC (see para-
graph 220 above). The evidence shows that such violations were com-

94

259                   ARMED ACTIVITIES (JUDGMENT)

mitted throughout the period when Ugandan troops were present in the
DRC, including the period from 1 July 2000 until practically their final
withdrawal on 2 June 2003 (see paragraphs 206-211 above). The Court
thus concludes that Uganda did not comply with the Court’s Order on
provisional measures of 1 July 2000.

   265. The Court further notes that the provisional measures indicated
in the Order of 1 July 2000 were addressed to both Parties. The Court’s
finding in paragraph 264 is without prejudice to the question as to
whether the DRC did not also fail to comply with the provisional
measures indicated by the Court.

                                  * * *

             COUNTER-CLAIMS : ADMISSIBILITY OF OBJECTIONS

   266. It is recalled that, in its Counter-Memorial, Uganda submitted
three counter-claims (see paragraph 5 above). Uganda’s counter-claims
were presented in Chapter XVIII of the Counter-Memorial. Uganda’s
first counter-claim related to acts of aggression allegedly committed by
the DRC against Uganda. Uganda contended that the DRC had acted
in violation of the principle of the non-use of force incorporated in
Article 2, paragraph 4, of the United Nations Charter and found in custom-
ary international law, and of the principle of non-intervention in matters
within the domestic jurisdiction of States. Uganda’s second counter-claim
related to attacks on Ugandan diplomatic premises and personnel in Kin-
shasa, and on Ugandan nationals, for which the DRC is alleged to be
responsible. Uganda contended that the acts of the DRC amounted to an
illegal use of force, and were in breach of certain rules of conventional or
customary international law relating to the protection of persons and
property. Uganda’s third counter-claim related to alleged violations by
the DRC of specific provisions of the Lusaka Agreement. Uganda also
requested that the Court reserve the issue of reparation in relation to the
counter-claims for a subsequent stage of the proceedings (see Armed
Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda), Counter-Claims, Order of 29 November 2001, I.C.J.
Reports 2001, p. 664, para. 4).

   267. By an Order of 29 November 2001 the Court found, with regard
to the first and second counter-claims, that the Parties’ respective claims
in both cases related to facts of the same nature and formed part of the
same factual complex, and that the Parties were moreover pursuing the
same legal aims. The Court accordingly concluded that these two

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counter-claims were admissible as such (I.C.J. Reports 2001, pp. 678-682,
paras. 38-41, 45 and 51). By contrast, the Court found that Uganda’s
third counter-claim was inadmissible as such, since it was not directly
connected with the subject-matter of the DRC’s claims (ibid., pp. 680-
682, paras. 42-43, 45 and 51).

                                   *       *
   268. The DRC maintains that the joinder of Uganda’s first and second
counter-claims to the proceedings does not imply that preliminary objec-
tions cannot be raised against them. The DRC contends that it is there-
fore entitled to raise objections to the admissibility of the counter-claims
at this stage of the proceedings. Furthermore, the DRC states that it had
“clearly indicated in its written observations on Uganda’s counter-claims,
in June 2001, that is to say prior to the Order made by the Court
in November 2001, that it reserved the right to submit preliminary objec-
tions in its Reply” (emphasis in the original). As it was unable to comply
literally with Article 79, which does not expressly contemplate the sub-
mission of preliminary objections in respect of counter-claims, the DRC
states that it applied the principle of that provision, mutatis mutandis, to
the situation with which it was confronted, i.e. it submitted the objections
in the first written pleading following both the submission of counter-
claims by Uganda in its Counter-Memorial and the Order whereby the
Court ruled on the admissibility of those claims as counter-claims.
According to the DRC, the Court only ruled in its Order of 29 November
2001 “on the admissibility of this claim as a counter-claim, without pre-
judging any other question which might arise with respect to it” (empha-
sis in the original). The DRC further argues that the Court’s decision is
limited to the context of Article 80 of its Rules, and in no way “consti-
tutes a ruling on the admissibility of the counter-claims as new claims
joined to the proceedings”.

                                       *
   269. Uganda asserts that the DRC is no longer entitled at this stage of
the proceedings to plead the inadmissibility of the counter-claims, since
the Court’s Order of 29 November 2001 is a definitive determination on
counter-claims under Article 80 of the Rules of Court and precludes any
discussion on the admissibility of the counter-claims themselves. Uganda
further contends that the DRC never submitted its preliminary objections
in the form or within the time-limit prescribed by Article 79 of the Rules
of Court.

                                       *
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261                    ARMED ACTIVITIES (JUDGMENT)

   270. In its consideration of the counter-claims submitted by Uganda,
the Court must first address the question whether the DRC is entitled to
challenge at this stage of the proceedings the admissibility of the counter-
claims.
   271. The Court notes that in the Oil Platforms case it was called upon
to resolve the same issue now raised by Uganda. In that case, the Court
concluded that Iran was entitled to challenge the admissibility of the
United States counter-claim in general, even though the counter-claim
had previously been found admissible under Article 80 of the Rules (Oil
Platforms (Islamic Republic of Iran v. United States of America), Judg-
ment, I.C.J. Reports 2003, p. 210, para. 105). Discussing its prior Order,
the Court declared :

         “When in that Order the Court ruled on the ‘admissibility’ of the
      counter-claim, the task of the Court at that stage was only to verify
      whether or not the requirements laid down by Article 80 of the Rules
      of Court were satisfied, namely, that there was a direct connection
      of the counter-claim with the subject-matter of the [principal]
      claims . . .” (Ibid.)
   272. There is nothing in the facts of the present case that compels a
different conclusion. On the contrary, the language of the Court’s Order
of 29 November 2001 clearly calls for the same outcome as the Court
reached in the Oil Platforms case. After finding the first and second
counter-claim admissible under the Article 80 connection test, the Court
emphasized in its Order of 29 November 2001 that “a decision given on
the admissibility of a counter-claim taking account of the requirements of
Article 80 of the Rules of Court in no way prejudges any question with
which the Court would have to deal during the remainder of the proceed-
ings” (Armed Activities on the Territory of the Congo (Democratic Repub-
lic of the Congo v. Uganda), Counter-Claims, Order of 29 November
2001, I.C.J. Reports 2001, p. 681, para. 46).

  273. The enquiry under Article 80 as to admissibility is only in regard
to the question whether a counter-claim is directly connected with the
subject-matter of the principal claim ; it is not an over-arching test of
admissibility. Thus the Court, in its Order of 29 November 2001, intended
only to settle the question of a “direct connection” within the meaning of
Article 80. At that point in time it had before it only an objection to
admissibility founded on the absence of such a connection.

   274. With regard to Uganda’s contention that the preliminary objec-
tions of the DRC are inadmissible because they failed to conform to
Article 79 of the Rules of Court, the Court would observe that Article 79
concerns the case of an “objection by the respondent to the jurisdiction
of the Court or to the admissibility of the application, or other objection
the decision upon which is requested before any further proceedings on

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the merits”. It is inapplicable to the case of an objection to counter-
claims which have been joined to the original proceedings. The Court
notes that nonetheless, the DRC raised objections to the counter-claims
in its Reply, i.e., the first pleading following the submission of Uganda’s
Counter-Memorial containing its counter-claims.

   275. In light of the findings above, the Court concludes that the DRC
is still entitled, at this stage of the proceedings, to challenge the admissi-
bility of Uganda’s counter-claims.

                                     *   *

                           FIRST COUNTER-CLAIM

  276. In its first counter-claim, Uganda contends that, since 1994, it has
been the victim of military operations and other destabilizing activities
carried out by hostile armed groups based in the DRC (which between
1971 and 1997 was called Zaire) and either supported or tolerated by suc-
cessive Congolese governments. Uganda asserts that elements of these
anti-Ugandan armed groups were supported by the Sudan and fought in
co-operation with the Sudanese and Congolese armed forces. Uganda
further claims that the DRC cultivated its military alliance with the
Government of the Sudan, pursuant to which the Sudanese army occu-
pied airfields in north-eastern Congo for the purpose of delivering arms,
supplies and troops to the anti-Ugandan rebels.

   277. Uganda maintains that actions taken in support of the anti-
Ugandan insurgents on the part of the Congolese authorities constitute a
violation of the general rule forbidding the use of armed force in inter-
national relations, as well as a violation of the principle of non-interven-
tion in the internal affairs of a State. Uganda recalls in particular that

      “[i]n the Corfu Channel case, the International Court of Justice
      pointed out that ‘every State’s obligation not to allow knowingly its
      territory to be used for acts contrary to the rights of other States’ is
      a ‘general and well-recognized principle’ (I.C.J. Reports 1949,
      pp. 22-23)”.
In Uganda’s view, from this principle there flows not only a duty to
refrain from providing any support to groups carrying out subversive or
terrorist activities against another State, but also a duty of vigilance to
ensure that such activities are not tolerated. In the present case, Uganda
contends that “the DRC not only tolerated the anti-Ugandan rebels,
but also supported them very effectively in various ways, before simply
incorporating some of them into its armed forces”.

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263                   ARMED ACTIVITIES (JUDGMENT)

  278. In the context of the DRC’s alleged involvement in supporting
anti-Ugandan irregular forces from May 1997 to August 1998, Uganda
contends that it is not necessary to prove the involvement of the DRC in
each attack ; it suffices to prove that “President Kabila and his govern-
ment were co-ordinating closely with the anti-Ugandan rebels prior
to August 1998”.

  279. According to Uganda, the DRC’s support for anti-Ugandan
armed irregular forces cannot be justified as a form of self-defence in
response to the alleged armed aggression by Uganda, since the DRC’s
military alliances with the rebel groups and the Sudan and their activities
preceded Uganda’s decision of 11 September 1998 to send its troops into
the DRC (see paragraphs 37, 39 and 121 above).

                                     *
   280. In rebutting Uganda’s first counter-claim, the DRC divides it into
three periods of time, corresponding to distinct factual and legal situa-
tions : (a) the period prior to President Laurent-Désiré Kabila coming to
power ; (b) the period starting from the accession to power of President
Kabila until 2 August 1998, the date on which Uganda’s military attack
was launched ; and (c) the period subsequent to 2 August 1998. It sub-
mits that, in so far as the alleged claim that the DRC was involved in
armed attacks against Uganda covers the first period, it is inadmissible
and, in the alternative, groundless. It further asserts that the claim has no
basis in fact for the second period and that it is not founded in fact or in
law regarding the third period.

   281. With regard to the first period, before President Kabila came to
power in May 1997, the DRC contends that the Ugandan counter-claim
is inadmissible on the basis that Uganda renounced its right to invoke the
international responsibility of the DRC (Zaire at the time) in respect of
acts dating back to that period. In particular, the DRC contends that
“Uganda never expressly imputed international responsibility to Zaire”
and did not “express any intention of formally invoking such responsi-
bility”. The DRC further states that the close collaboration between the
two States after President Kabila came to power, including in the area of
security, justifiably led the Congolese authorities to believe that “Uganda
had no intention of resurrecting certain allegations from the period con-
cerned and of seeking to engage the Congo’s international responsibility
on that basis”.

  282. In the alternative, the DRC claims that the first Ugandan
counter-claim in respect of this period is devoid of foundation, since the
documents presented in support of Uganda’s contention, “emanating

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264                  ARMED ACTIVITIES (JUDGMENT)

unilaterally from Uganda, fail to meet the judicial standard of proof”
and that Uganda has made no efforts to provide further proof.

   283. In any event, the DRC denies having breached any duty of vigi-
lance, during the period when Marshal Mobutu was in power, by having
failed to prevent Ugandan rebel groups from using its territory to launch
attacks in Uganda. The DRC also denies having provided political and
military support to those groups during the period concerned.
   284. Regarding the second period, from May 1997 to early August
1998, the DRC reiterates that it has always denied having provided mili-
tary support for Ugandan rebel groups or having participated in their
military operations. According to the DRC, Uganda has failed to
demonstrate not only that the rebel groups were its de facto agents, but
also that the DRC had planned, prepared or participated in any attack or
that the DRC had provided support to Ugandan irregular forces.

   285. The DRC further contends that no evidence has been adduced to
support the claim that, in early August 1998, the DRC entered into a
military alliance with the Sudan. In the view of the DRC, Uganda has
failed to provide proof either of the alleged meeting which was said to
have taken place between the President of the DRC and the President of
the Sudan in May 1998, or of the alleged agreement concluded between
the DRC and the Sudan that same month and designed to destabilize
Uganda.
   286. With regard to the third period, the DRC maintains that the
documents presented by Uganda, which were prepared by the Ugandan
authorities themselves, are not sufficient to establish that the DRC was
involved in any attacks against Uganda after the beginning of August
1998. Likewise, the DRC states that the allegations of general support by
the DRC for the anti-Ugandan rebels cannot be substantiated by the
documents submitted by Uganda.

   287. The DRC argues in the alternative that, in any event, from a legal
perspective it was in a position of self-defence from that date onwards ;
and that, in view of the involvement of the UPDF in the airborne opera-
tion at Kitona on 4 August 1998, the DRC would have been entitled to
use force to repel the aggression against it, as well as to seek support
from other States.
                                   *
  288. In response to the foregoing arguments of the DRC as set out in
paragraphs 280 to 281 above, Uganda states the following.

  289. It disagrees that the first counter-claim should be divided into
three historical periods, namely, from 1994 to 1997 (under Mobutu’s
presidency), from May 1997 to 2 August 1998, and the period beginning

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265                   ARMED ACTIVITIES (JUDGMENT)

on 2 August 1998. Uganda argues that in its Order of 29 November 2001
the Court found that “Uganda’s counter-claim satisfied the direct con-
nection requirement laid down by Article 80 of the Rules of Court and
did so for the entire period since 1994”. In Uganda’s view, this shows
that the Court “refuses to accept the DRC’s argument that three periods
should be distinguished in the history of recent relations between the
Congo and Uganda”. Uganda further asserts that by attempting to
“slice” a continuing wrongful act into separate periods the DRC is seek-
ing to “limit Uganda’s counter-claim”. Uganda maintains that Zaire and
the DRC “are not distinct entities” and that “by virtue of the State con-
tinuity principle, it is precisely the same legal person” which is respon-
sible for the acts complained of in the first counter-claim.

   290. With reference to the objection raised by the DRC that Uganda is
precluded from filing a claim in relation to alleged violations of its terri-
torial sovereignty on the grounds that it renounced its right to do so,
Uganda argues that the conditions required in international law for the
waiver of an international claim to be recognized are not satisfied in the
present case. In terms of fact, Uganda asserts that, during the Mobutu
years, it repeatedly protested against Zaire’s passive and active support of
anti-Ugandan forces directly to Zaire and to the United Nations. Uganda
also repeatedly informed the United Nations of Zaire’s joint efforts
with the Sudan to destabilize Uganda. Uganda further argues that its
co-operation with Laurent-Désiré Kabila’s AFDL movement, aimed at
improving security along the common border area, did not amount to
a waiver of any earlier claims against Zaire. In terms of law, Uganda
asserts that in any event the absence of protest does not validate illegal
acts and that any failure to address complaints to the Security Council
should not be regarded as a cause of inadmissibility. Uganda concludes
that the DRC’s objections to its first counter-claim should therefore be
dismissed.

                                     *
  291. The Court has taken note that Uganda disagrees with the division
of the first counter-claim of Uganda into three periods as argued by the
DRC. The Court recalls that, in paragraph 39 of its Order on Counter-
Claims of 29 November 2001, it considered that “the first counter-claim
submitted by Uganda is . . . directly connected, in regard to the entire
period covered, with the subject-matter of the Congo’s claims”. The
DRC does not contest this finding, but rather argues that the first
counter-claim is partially inadmissible and not founded as to the merits.
The Court observes that its Order of 29 November 2001 does not deal
with questions of admissibility outside the scope of Article 80 of the

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266                   ARMED ACTIVITIES (JUDGMENT)

Rules, nor does it deal with the merits of the first counter-claim. Neither
does the Order prejudge any question as to the possibility of dividing
this counter-claim according to specific periods of time. The Court is
not therefore precluded, if it is justified by the circumstances of the case,
from considering the first counter-claim following specific time periods.
In the present case, in view of the fact that the historical periods identi-
fied by the DRC indeed differ in their factual context and are clearly
distinguishable, the Court does not see any obstacle to examining
Uganda’s first counter-claim following these three periods of time and
for practical purposes deems it useful to do so.

  292. The Court now turns to the question of admissibility of the part
of the first counter-claim of Uganda relating to the period prior to May
1997. The Court observes that the DRC has not presented any evidence
showing an express renunciation by Uganda of its right to bring a
counter-claim in relation to facts dating back to the Mobutu régime.
Rather, it argues that Uganda’s subsequent conduct amounted to an
implied waiver of whatever claims it might have had against the DRC
as a result of the actions or inaction of the Mobutu régime.

   293. The Court observes that waivers or renunciations of claims or
rights must either be express or unequivocally implied from the conduct
of the State alleged to have waived or renounced its right. In the case
concerning Certain Phosphate Lands in Nauru (Nauru v. Australia), the
Court rejected a similar argument of waiver put forth by Australia, which
argued that Nauru had renounced certain of its claims ; noting the
absence of any express waiver, the Court furthermore considered that a
waiver of those claims could not be implied on the basis of the conduct of
Nauru (Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 247-
250, paras. 12-21). Similarly, the International Law Commission, in its
commentary on Article 45 of the Draft Articles on Responsibility of
States for internationally wrongful acts, points out that “[a]lthough it
may be possible to infer a waiver from the conduct of the States con-
cerned or from a unilateral statement, the conduct or statement must be
unequivocal” (ILC report, doc. A/56/10, 2001, p. 308). In the Court’s
view, nothing in the conduct of Uganda in the period after May 1997 can
be considered as implying an unequivocal waiver of its right to bring a
counter-claim relating to events which occurred during the Mobutu
régime.

  294. The period of friendly relations enjoyed between the DRC and
Uganda between May 1997 and July 1998 does nothing to affect this out-
come. A period of good or friendly relations between two States should
not, without more, be deemed to prevent one of the States from raising
a pre-existing claim against the other, either when relations between
the two States have again deteriorated or even while the good relations

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267                   ARMED ACTIVITIES (JUDGMENT)

continue. The political climate between States does not alter their
legal rights.
   295. The Court further observes that, in a situation where there is a
delay on the part of a State in bringing a claim, it is “for the Court to
determine in the light of the circumstances of each case whether the pas-
sage of time renders an application inadmissible” (Certain Phosphate
Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment,
I.C.J. Reports 1992, p. 254, para. 32). In the circumstances of the present
case, the long period of time between the events at stake during the
Mobutu régime and the filing of Uganda’s counter-claims has not
rendered inadmissible Uganda’s first counter-claim for the period
prior to May 1997.
   296. The Court accordingly finds that the DRC’s objection cannot be
upheld.
   297. Regarding the merits of Uganda’s first counter-claim for the
period prior to May 1997, Uganda alleges that the DRC breached
its duty of vigilance by allowing anti-Ugandan rebel groups to use its
territory to launch attacks on Uganda, and by providing political and
military support to those groups during this period.

   298. The Court considers that Uganda has not produced sufficient evi-
dence to show that the Zairean authorities were involved in providing
political and military support for specific attacks against Ugandan terri-
tory. The bulk of the evidence submitted consists of uncorroborated
Ugandan military intelligence material and generally fails to indicate the
sources from which it is drawn. Many such statements are unsigned. In
addition, many documents were submitted as evidence by Uganda, such
as the address by President Museveni to the Ugandan Parliament on
28 May 2000, entitled “Uganda’s Role in the Democratic Republic of the
Congo”, and a document entitled “Chronological Illustration of Acts of
Destabilization by Sudan and Congo based Dissidents”. In the circum-
stances of this case, these documents are of limited probative value to the
extent that they were neither relied on by the other Party nor corrobo-
rated by impartial, neutral sources. Even the documents that purportedly
relate eyewitness accounts are vague and thus unconvincing. For
example, the information allegedly provided by an ADF deserter,
reproduced in Annex 60 to the Counter-Memorial, is limited to the
following : “In 1996 during Mobutu era before Mpondwe attack, ADF
received several weapons from Sudan government with the help of
Zaire government.” The few reports of non-governmental organizations
put forward by Uganda (e.g. a report by HRW) are too general to
support a claim of Congolese involvement rising to a level engaging
State responsibility.

  299. In sum, none of the documents submitted by Uganda, taken

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268                    ARMED ACTIVITIES (JUDGMENT)

separately or together, can serve as a sound basis for the Court to con-
clude that the alleged violations of international law occurred. Thus
Uganda has failed to discharge its burden of proof with regard to its
allegation that Zaire provided political and military support to anti-
Ugandan rebel groups operating in its territory during the Mobutu
régime.
   300. As to the question of whether the DRC breached its duty of vigi-
lance by tolerating anti-Ugandan rebels on its territory, the Court notes
that this is a different issue from the question of active support for
the rebels, because the Parties do not dispute the presence of the anti-
Ugandan rebels on the territory of the DRC as a factual matter. The
DRC recognized that anti-Ugandan groups operated on the territory of
the DRC from at least 1986. Under the Declaration on Friendly Relations,
“every State has the duty to refrain from . . . acquiescing in organized
activities within its territory directed towards the commission of such
acts” (e.g., terrorist acts, acts of internal strife) and also “no State
shall . . . tolerate subversive, terrorist or armed activities directed towards
the violent overthrow of the regime of another State . . .”. As stated
earlier, these provisions are declaratory of customary international law
(see paragraph 162 above).

   301. The Court has noted that, according to Uganda, the rebel groups
were able to operate “unimpeded” in the border region between the DRC
and Uganda “because of its mountainous terrain, its remoteness from
Kinshasa (more than 1,500 km), and the almost complete absence of
central government presence or authority in the region during President
Mobutu’s 32-year term in office”.
   During the period under consideration both anti-Ugandan and anti-
Zairean rebel groups operated in this area. Neither Zaire nor Uganda
were in a position to put an end to their activities. However, in the light
of the evidence before it, the Court cannot conclude that the absence of
action by Zaire’s Government against the rebel groups in the border area
is tantamount to “tolerating” or “acquiescing” in their activities. Thus,
the part of Uganda’s first counter-claim alleging Congolese responsibility
for tolerating the rebel groups prior to May 1997 cannot be upheld.

   302. With regard to the second period, from May 1997 until 2 August
1998, the DRC does not contest the admissibility of Uganda’s counter-
claim. Rather, it argues simply that the counter-claim has no basis in
fact.
   303. In relation to this period, the Court finds that Uganda has failed
to provide conclusive evidence of actual support for anti-Ugandan rebel
groups by the DRC. Whereas in the first period the counter-claim suf-
fered from a general lack of evidence showing the DRC’s support for
anti-Ugandan rebels, the second period is marked by clear action by the
DRC against the rebels. Relations between the DRC and Uganda during

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269                   ARMED ACTIVITIES (JUDGMENT)

this second period improved and the two Governments undertook joint
actions against the anti-Ugandan rebels. The DRC consented to the
deployment of Ugandan troops in the border area. In April 1998 the
DRC and Uganda even concluded an agreement on security along the
common border (see paragraph 46 above). The DRC was thus acting
against the rebels, not in support of them. It appears, however, that, due
to the difficulty and remoteness of the terrain discussed in relation to the
first period, neither State was capable of putting an end to all the rebel
activities despite their efforts in this period. Therefore, Uganda’s counter-
claim with respect to this second period also must fail.

   304. In relation to the third period, following 2 August 1998, the
Court has already found that the legal situation after the military inter-
vention of the Ugandan forces into the territory of the DRC was, after
7 August, essentially one of illegal use of force by Uganda against the
DRC (see paragraph 149 above). In view of the finding that Uganda
engaged in an illegal military operation against the DRC, the Court con-
siders that the DRC was entitled to use force in order to repel Uganda’s
attacks. The Court also notes that it has never been claimed that this use
of force was not proportionate nor can the Court conclude this from the
evidence before it. It follows that any military action taken by the DRC
against Uganda during this period could not be deemed wrongful since it
would be justified as action taken in self-defence under Article 51 of the
United Nations Charter. Moreover, the Court has already found that the
facts alleged by Uganda in its counter-claim in respect of this period,
namely the participation of DRC regular troops in attacks by anti-
Ugandan rebels against the UPDF and the training, arming, equipping,
financing and supplying of anti-Ugandan insurgents, cannot be con-
sidered as proven (see paragraphs 121-147 above). Consequently,
Uganda’s first counter-claim cannot be upheld as regards the period
following 2 August 1998.

  305. The Court thus concludes that the first counter-claim submitted
by Uganda fails in its entirety.

                                    *   *

                         SECOND COUNTER-CLAIM

  306. In its second counter-claim, Uganda claims that Congolese armed
forces carried out three separate attacks on the Ugandan Embassy
in Kinshasa in August, September and November 1998 ; confiscated

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270                  ARMED ACTIVITIES (JUDGMENT)

property belonging to the Government of Uganda, Ugandan diplomats
and Ugandan nationals ; and maltreated diplomats and other Ugandan
nationals present on the premises of the mission.

   307. In particular, Uganda contends that on or around 11 August
1998 Congolese soldiers stormed the Ugandan Embassy in Kinshasa,
threatened the ambassador and other diplomats, demanding the release
of certain Rwandan nationals. According to Uganda, the Congolese
soldiers also stole money found in the Chancery. Uganda alleges that,
despite protests by Ugandan Embassy officials, the Congolese Govern-
ment took no action.
   308. Uganda further asserts that, prior to their evacuation from the
DRC on 20 August 1998, 17 Ugandan nationals and Ugandan diplomats
were likewise subjected to inhumane treatment by FAC troops stationed
at Ndjili International Airport. Uganda alleges that, before releasing the
Ugandans, the FAC troops confiscated their money, valuables and brief-
cases. Uganda states that a Note of protest with regard to this incident
was sent by the Embassy of Uganda to the Ministry of Foreign Affairs of
the DRC on 21 August 1998.

   309. Uganda claims that in September 1998, following the evacuation
of the remaining Ugandan diplomats from the DRC, FAC troops
forcibly seized the Ugandan Chancery and the official residence of the
Ugandan Ambassador in Kinshasa. Uganda maintains that the Congolese
troops stole property from the premises, including four embassy vehicles.
According to Uganda, on 23 November 1998 FAC troops again forcibly
entered the Ugandan Chancery and the official residence of the Ugandan
Ambassador in Kinshasa and stole property, including embassy furni-
ture, household and personal effects belonging to the Ambassador and to
other diplomatic staff, embassy office equipment, Ugandan flags and
four vehicles belonging to Ugandan nationals. Uganda alleges that the
Congolese army also occupied the Chancery and the official residence of
the Ugandan Ambassador.
   310. Uganda states that on 18 December 1998 the Ministry of Foreign
Affairs of Uganda sent a Note of protest to the Ministry of Foreign
affairs of the DRC, in which it referred to the incidents of September
1998 and 23 November 1998 and demanded, inter alia, that the Govern-
ment of the DRC return all the property taken from the Embassy
premises, that all Congolese military personnel vacate the two buildings
and that the mission be protected from any further intrusion.

  311. Uganda alleges, moreover, that “[t]he Congolese government
permitted WNBF commander Taban Amin, the son of former Ugandan
dictator Idi Amin, to occupy the premises of the Uganda Embassy in
Kinshasa and establish his official headquarters and residence at those
facilities”. In this regard, Uganda refers to a Note of protest dated
21 March 2001, whereby the Ministry of Foreign Affairs of Uganda

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271                    ARMED ACTIVITIES (JUDGMENT)

requested that the Government of the DRC ask Mr. Taban Amin to
vacate the Ugandan Embassy’s premises in Kinshasa.
   312. Uganda further refers to a visit on 28 September 2002 by a joint
delegation of Ugandan and Congolese officials to the Chancery and the
official residence of the Ambassador of Uganda in Kinshasa. Uganda
notes that the Status Report, signed by the representatives of both Parties
following the visit, indicates that “at the time of the inspection, both
premises were occupied” and that the joint delegation “did not find any
movable property belonging to the Uganda embassy or its former offi-
cials”. Uganda states that the joint delegation also “found the buildings
in a state of total disrepair”. As a result of that situation, Uganda claims
that it was recently obliged to rent premises for its diplomatic and con-
sular mission in Kinshasa.

   313. Uganda argues that the DRC’s actions are in breach of interna-
tional diplomatic and consular law, in particular Articles 22 (inviolability
of the premises of the mission), 29 (inviolability of the person of diplo-
matic agents), 30 (inviolability of the private residence of a diplomatic
agent) and 24 (inviolability of archives and documents of the mission)
of the 1961 Vienna Convention on Diplomatic Relations. In addition,
Uganda contends that,
      “[t]he inhumane treatment and threats to the security and freedom
      of nationals of Uganda . . . constitute a series of breaches of the
      international minimum standard relating to the treatment of foreign
      nationals lawfully on State territory, which standard forms a part of
      customary or general international law” ;
and that, in respect of the seizure of the Embassy of Uganda, the official
residence of the Ambassador and official cars of the mission, these
actions constitute an unlawful expropriation of the public property of
Uganda.

                                     *
   314. The DRC contends that Uganda’s second counter-claim is par-
tially inadmissible on the ground that Uganda has ascribed new legal
bases in its Rejoinder to the DRC’s responsibility by including claims
based on the violation of the Vienna Convention on Diplomatic Rela-
tions. According to the DRC, Uganda thus breaks the connection with
the principal claim, which refers to “the violation of the United Nations
Charter provisions on the use of force and on non-intervention, as well as
the Hague and Geneva Conventions on the protection of persons and
property in time of occupation and armed conflict”. The DRC also
asserts that the alleged modification of the subject-matter of this part of
the dispute is manifestly incompatible with the Court’s Order of
29 November 2001.

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272                    ARMED ACTIVITIES (JUDGMENT)

   315. The DRC further argues that the claim based on the inhumane
treatment of Ugandan nationals cannot be admitted, because the require-
ments for admissibility of a diplomatic protection claim are not satisfied.
As for the first condition relating to the nationality of the alleged victims,
the DRC claims that Uganda has not shown that the persons on whose
behalf it is claiming to act are of Ugandan nationality and not Rwandan
or of any dual nationality. Regarding the second condition relating to the
exhaustion of local remedies, the DRC contends that,

      “since it seems that these individuals left the Democratic Republic of
      the Congo in a group in August 1998 and that is when they allegedly
      suffered the unspecified, unproven injuries, it would not appear that
      the requirement of exhaustion of local remedies has been satisfied”.

                                      *
   316. Uganda, for its part, claims that Chapter XVIII of its Counter-
Memorial “clearly shows, with no possibility of doubt, that since the
beginning of the dispute Uganda has invoked violation of the 1961
Vienna Convention in support of its position on the responsibility of the
Congo”. Uganda further notes that in its Order of 29 November 2001, in
the context of Uganda’s second counter-claim, the Court concluded that
the Parties were pursuing the same legal aims by seeking “to establish the
responsibility of the other by invoking, in connection with the alleged
illegal use of force, certain rules of conventional or customary interna-
tional law relating to the protection of persons and property” (I.C.J.
Reports 2001, p. 679, para. 40). Uganda contends that the reference to
“conventional . . . law” must necessarily relate to the Vienna Convention
on Diplomatic Relations, “the only conventional instrument expressly
named in that part of the Counter-Memorial devoted to the second
claim”. Thus Uganda argues that it has not changed the subject-matter of
the dispute.
   317. As to the inadmissibility of the part of the claim relating to the
alleged maltreatment of certain Ugandan nationals, according to Uganda
it is not linked to any claims of Ugandan nationals ; its claim is based on
violations by the DRC, directed against Uganda itself, of general rules
of international law relating to diplomatic relations, of which Ugandan
nationals present in the premises of the mission were indirect victims.
Uganda considers that local remedies need not be exhausted when the
individual is only the indirect victim of a violation of a State-to-State
obligation. Uganda states that “[t]he breaches of the Convention also
constitute direct injury to Uganda and the local remedies rule is therefore
inapplicable”. Uganda contends that, even assuming that this aspect of
the second claim could be interpreted as the exercise by Uganda of
diplomatic protection, the local remedies rule would not in any event

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273                    ARMED ACTIVITIES (JUDGMENT)

be applicable because the principle is that the rule can only apply when
effective remedies are available in the national system. In this regard,
Uganda argues that any remedy before Congolese courts would be
ineffective, due to the lack of impartiality within the Congolese justice
system. Additionally, Uganda contends that

      “[t]he inhumane treatment and threats to the security and freedom
      of nationals of Uganda . . . constitute a series of breaches of the
      international minimum standard relating to the treatment of foreign
      nationals lawfully on State territory, which standard forms a part of
      customary or general international law”.

                                     *
   318. As to the merits of the second counter-claim, the DRC, without
prejudice to its arguments on the inadmissibility of the second counter-
claim, argues that in any event Uganda has been unable to establish the
factual and legal bases of its claims. According to the DRC, “none of
these accusations made against [the DRC] by the Respondent has any
serious and credible factual basis”. The DRC also challenges the eviden-
tiary value “in law” of the documents adduced by Uganda to support its
claims.
   319. The DRC denies having subjected Ugandan nationals to
inhumane treatment during an alleged attack on the Ugandan Embassy
in Kinshasa on 11 August 1998 and denies that further attacks occurred
in September and November 1998. According to the DRC, the Ugandan
diplomatic buildings in Kinshasa were never seized or expropriated, nor
has the DRC ever sought to prevent Uganda from reoccupying its prop-
erty. The DRC further states that it did not expropriate Ugandan public
property in Kinshasa in August 1998, nor did it misappropriate the
vehicles of the Ugandan diplomatic mission in Kinshasa, or remove
the archives or seize movable property from those premises.

   320. The DRC likewise contests the assertion that it allowed the com-
mander of the WNBF to occupy the premises of the Ugandan Embassy
in Kinshasa and to establish his official headquarters and residence there.
The DRC also refutes the allegation that on 20 August 1998 various
Ugandan nationals were maltreated by the FAC at Ndjili International
Airport in Kinshasa.
   321. The DRC contends that the part of the claim relating to the
alleged expropriation of Uganda’s public property is unfounded because
Uganda has been unable to establish the factual and legal bases of its
claims. According to the DRC, Uganda has not adduced any credible
evidence to show that either the two buildings (the Embassy and the

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274                    ARMED ACTIVITIES (JUDGMENT)

Ambassador’s residence) or the four official vehicles were seized by the
DRC.

                                      *
   322. The Court will first turn to the DRC’s challenge to the admissi-
bility of the second counter-claim on the grounds that, by formally
invoking the Vienna Convention on Diplomatic Relations for the first
time in its Rejoinder of 6 December 2002, Uganda has “[sought] improp-
erly to enlarge the subject-matter of the dispute, contrary to the Statute
and Rules of Court” and contrary to the Court’s Order of 29 November
2001.
   323. The Court first recalls that the Vienna Convention on Diplomatic
Relations continues to apply notwithstanding the state of armed conflict
that existed between the Parties at the time of the alleged maltreatment.
The Court recalls that, according to Article 44 of the Vienna Convention
on Diplomatic Relations :
         “The receiving State must, even in case of armed conflict, grant
      facilities in order to enable persons enjoying privileges and immuni-
      ties, other than nationals of the receiving State, and members of the
      families of such persons irrespective of their nationality, to leave at
      the earliest possible moment. It must, in particular, in case of need,
      place at their disposal the necessary means of transport for them-
      selves and their property.”
   324. Further, Article 45 of the Vienna Convention provides as follows :
         “If diplomatic relations are broken off between two States, or if a
      mission is permanently or temporarily recalled :
      (a) the receiving State must, even in case of armed conflict, respect
            and protect the premises of the mission, together with its
            property and archives ;
      (b) the sending State may entrust the custody of the premises of
            the mission, together with its property and archives, to a third
            State acceptable to the receiving State ;
      (c) the sending State may entrust the protection of its interests
            and those of its nationals to a third State acceptable to the
            receiving State.”
In the case concerning United States Diplomatic and Consular Staff in
Tehran, the Court emphasized that
      “[e]ven in the case of armed conflict or in the case of a breach in
      diplomatic relations those provisions require that both the inviola-
      bility of the members of a diplomatic mission and of the premises, . . .
      must be respected by the receiving State” (Judgment, I.C.J. Reports
      1980, p. 40, para. 86).
   325. In relation to the DRC’s claim that the Court’s Order of
29 November 2001 precludes the subsequent invocation of the Vienna

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275                    ARMED ACTIVITIES (JUDGMENT)

Convention on Diplomatic Relations, the Court recalls the language of
this Order :
      “each Party holds the other responsible for various acts of oppres-
      sion allegedly accompanying an illegal use of force . . . each Party
      seeks to establish the responsibility of the other by invoking, in con-
      nection with the alleged illegal use of force, certain rules of conven-
      tional or customary international law relating to the protection of
      persons and property” (I.C.J. Reports 2001, p. 679, para. 40 ;
      emphasis added).
   326. The Court finds this formulation sufficiently broad to encompass
claims based on the Vienna Convention on Diplomatic Relations, taking
note that the new claims are based on the same factual allegation, i.e. the
alleged illegal use of force. The Court was entirely aware, when making
its Order, that the alleged attacks were on Embassy premises. Later
reference to specific additional legal elements, in the context of an
alleged illegal use of force, does not alter the nature or subject-matter of
the dispute. It was the use of force on Embassy premises that brought
this counter-claim within the scope of Article 80 of the Rules, but that
does not preclude examination of the special status of the Embassy.
As the jurisprudence of the Court reflects, counter-claims do not
have to rely on identical instruments to meet the “connection” test of
Article 80 (see Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment,
I.C.J. Reports 1998, pp. 318-319).

   327. The Court therefore finds that Uganda’s second counter-claim is
not rendered inadmissible in so far as Uganda has subsequently invoked
Articles 22, 24, 29, and 30 of the Vienna Convention on Diplomatic Rela-
tions.
   328. The Court will now consider the DRC’s challenge to the admis-
sibility of the second counter-claim on the ground that it is in reality a
claim founded on diplomatic protection and as such fails, as Uganda has
not shown that the requirements laid down by international law for the
exercise of diplomatic protection have been satisfied.

   329. The Court notes that Uganda relies on two separate legal bases in
its allegations concerning the maltreatment of persons. With regard to
diplomats, Uganda relies on Article 29 of the Vienna Convention on Dip-
lomatic Relations. With regard to other Ugandan nationals not enjoying
diplomatic status, Uganda grounds its claim in general rules of interna-
tional law relating to diplomatic relations and in the international mini-
mum standard relating to the treatment of foreign nationals who are
present on a State’s territory. The Court will now address both of these
bases in turn.
   330. First, as to alleged acts of maltreatment committed against Ugan-

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276                   ARMED ACTIVITIES (JUDGMENT)

dan diplomats finding themselves both within embassy premises and else-
where, the Court observes that Uganda’s second counter-claim aims at
obtaining reparation for the injuries suffered by Uganda itself as a result
of the alleged violations by the DRC of Article 29 of the Vienna Conven-
tion on Diplomatic Relations. Therefore Uganda is not exercising diplo-
matic protection on behalf of the victims but vindicating its own rights
under the Vienna Convention. Accordingly, the Court finds that the
failure to exhaust local remedies does not pose a barrier to Uganda’s
counter-claim under Article 29 of the Vienna Convention on Diplomatic
Relations, and the claim is thus admissible.

   331. As to acts of maltreatment committed against other persons on
the premises of the Ugandan Embassy at the time of the incidents, the
Court observes that the substance of this counter-claim currently before
the Court as a direct claim, brought by Uganda in its sovereign capacity,
concerning its Embassy in Kinshasa, falls within the ambit of Article 22
of the Vienna Convention on Diplomatic Relations. Consequently,
the objection advanced by the DRC to the admissibility of this part of
Uganda’s second counter-claim cannot be upheld, and this part of the
counter-claim is also admissible.
   332. The Court turns now to the part of Uganda’s second counter-
claim which concerns acts of maltreatment by FAC troops of Ugandan
nationals not enjoying diplomatic status who were present at Ndjili Inter-
national Airport as they attempted to leave the country.

   333. The Court notes that Uganda bases this part of the counter-claim
on the international minimum standard relating to the treatment of for-
eign nationals who are present on a State’s territory. The Court thus con-
siders that this part of Uganda’s counter-claim concerns injury to the
particular individuals in question and does not relate to a violation of an
international obligation by the DRC causing a direct injury to Uganda.
The Court is of the opinion that in presenting this part of the counter-
claim Uganda is attempting to exercise its right to diplomatic protec-
tion with regard to its nationals. It follows that Uganda would need to
meet the conditions necessary for the exercise of diplomatic protection
as recognized in general international law, namely the requirement of
Ugandan nationality of the claimants and the prior exhaustion of local
remedies. The Court observes that no specific documentation can be
found in the case file identifying the individuals concerned as Ugandan
nationals. The Court thus finds that, this condition not being met,
Uganda’s counter-claim concerning the alleged maltreatment of its
nationals not enjoying diplomatic status at Ndjili International Airport
is inadmissible.

                                    *
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277                  ARMED ACTIVITIES (JUDGMENT)

   334. Regarding the merits of Uganda’s second counter-claim, the Court
finds that there is sufficient evidence to prove that there were attacks
against the Embassy and acts of maltreatment against Ugandan diplo-
mats at Ndjili International Airport.

   335. The Court observes that various Ugandan diplomatic Notes
addressed to the Congolese Foreign Ministry or to the Congolese Embassy
in Kampala make reference to attacks by Congolese troops against the
premises of the Ugandan Embassy and to the occupation by the latter of
the buildings of the Chancery. In particular, the Court considers impor-
tant the Note of 18 December 1998 from the Ministry of Foreign Affairs
of Uganda to the Ministry of Foreign Affairs of the DRC, protesting
against Congolese actions in detriment of the Ugandan Chancery and
property therein in September and November 1998, in violation of inter-
national law and the 1961 Vienna Convention on Diplomatic Relations.
This Note deserves special attention because it was sent in duplicate
to the Secretary-General of the United Nations and to the Secretary-
General of the OAU, requesting them to urge the DRC to meet its
obligations under the Vienna Convention. The Court takes particular
note of the fact that the DRC did not reject this accusation at the time
at which it was made.

   336. Although some of the other evidence is inconclusive or appears to
have been prepared unilaterally for purposes of litigation, the Court was
particularly persuaded by the Status Report on the Residence and Chan-
cery, jointly prepared by the DRC and Uganda under the Luanda Agree-
ment. The Court has given special attention to this report, which was
prepared on site and was drawn up with the participation of both Parties.
Although the report does not offer a clear picture regarding the alleged
attacks, it does demonstrate the resulting long-term occupation of the
Ugandan Embassy by Congolese forces.

  337. Therefore, the Court finds that, as regards the attacks on
Uganda’s diplomatic premises in Kinshasa, the DRC has breached its
obligations under Article 22 of the Vienna Convention on Diplomatic
Relations.
  338. Acts of maltreatment by DRC forces of persons within the Ugan-
dan Embassy were necessarily consequential upon a breach of the invio-
lability of the Embassy premises prohibited by Article 22 of the Vienna
Convention on Diplomatic Relations. This is true regardless of whether
the persons were or were not nationals of Uganda or Ugandan diplo-
mats. In so far as the persons attacked were in fact diplomats, the DRC
further breached its obligations under Article 29 of the Vienna
Convention.

 339. Finally, there is evidence that some Ugandan diplomats were
maltreated at Ndjili International Airport when leaving the country. The

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278                   ARMED ACTIVITIES (JUDGMENT)

Court considers that a Note of Protest sent by the Embassy of Uganda to
the Ministry of Foreign Affairs of the DRC on 21 August 1998, i.e. on
the day following the incident, which at the time did not lead to a reply
by the DRC denying the incident, shows that the DRC committed acts of
maltreatment of Ugandan diplomats at Ndjili International Airport. The
fact that the assistance of the dean of the diplomatic corps (Ambassador
of Switzerland) was needed in order to organize an orderly departure of
Ugandan diplomats from the airport is also an indication that the DRC
failed to provide effective protection and treatment required under inter-
national law on diplomatic relations. The Court therefore finds that,
through acts of maltreatment inflicted on Ugandan diplomats at the air-
port when they attempted to leave the country, the DRC acted in viola-
tion of its obligations under international law on diplomatic relations.

   340. In summary, the Court concludes that, through the attacks by
members of the Congolese armed forces on the premises of the Ugandan
Embassy in Kinshasa, and their maltreatment of persons who found
themselves at the Embassy at the time of the attacks, the DRC breached
its obligations under Article 22 of the Vienna Convention on Diplomatic
Relations. The Court further concludes that by the maltreatment by
members of the Congolese armed forces of Ugandan diplomats on
Embassy premises and at Ndjili International Airport, the DRC also
breached its obligations under Article 29 of the Vienna Convention.

   341. As to the claim concerning Ugandan public property, the Court
notes that the original wording used by Uganda in its Counter-Memorial
was that property belonging to the Government of Uganda and Ugandan
diplomats had been “confiscated”, and that later pleadings referred to
“expropriation” of Ugandan public property. However, there is nothing
to suggest that in this case any confiscation or expropriation took place
in the technical sense. The Court therefore finds neither term suitable in
the present context. Uganda appears rather to be referring to an illegal
appropriation in the general sense of the term. The seizures clearly con-
stitute an unlawful use of that property, but no valid transfer of the title
to the property has occurred and the DRC has not become, at any point
in time, the lawful owner of such property.

   342. Regarding evidentiary issues, the Status Report on the Residence
and Chancery, jointly prepared by the DRC and Uganda under the
Luanda Agreement, provides sufficient evidence for the Court to con-
clude that Ugandan property was removed from the premises of the offi-
cial residence and Chancery. It is not necessary for the Court to make a
determination as to who might have removed the property reported miss-
ing. The Vienna Convention on Diplomatic Relations not only prohibits
any infringements of the inviolability of the mission by the receiving State

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279                   ARMED ACTIVITIES (JUDGMENT)

itself but also puts the receiving State under an obligation to prevent
others — such as armed militia groups — from doing so (see United
States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports
1980, pp. 30-32, paras. 61-67). Therefore, although the evidence available
is insufficient to identify with precision the individuals who removed
Ugandan property, the mere fact that items were removed is enough to
establish that the DRC breached its obligations under the Vienna Con-
vention on Diplomatic Relations. At this stage, the Court considers that
it has found sufficient evidence to hold that the removal of Ugandan
property violated the rules of international law on diplomatic relations,
whether it was committed by actions of the DRC itself or by the DRC’s
failure to prevent such acts on the part of armed militia groups. Simi-
larly, the Court need not establish a precise list of items removed — a
point of disagreement between the Parties — in order to conclude at
this stage of the proceedings that the DRC breached its obligations
under the relevant rules of international law. Although these issues will
become important should there be a reparation stage, they are not rele-
vant for the Court’s finding on the legality or illegality of the acts of
the DRC.

   343. In addition to the issue of the taking of Ugandan public property
described in paragraph 309, above, Uganda has specifically pleaded that
the removal of “almost all of the documents in their archives and work-
ing files” violates Article 24 of the Vienna Convention on Diplomatic
Relations. The same evidence discussed in paragraph 342 also supports
this contention, and the Court accordingly finds the DRC in violation of
its obligations under Article 24 of the Vienna Convention.

   344. The Court notes that, at this stage of the proceedings, it suffices
for it to state that the DRC bears responsibility for the breach of the
inviolability of the diplomatic premises, the maltreatment of Ugandan
diplomats at the Ugandan Embassy in Kinshasa, the maltreatment of
Ugandan diplomats at Ndjili International Airport, and for attacks on
and seizure of property and archives from Ugandan diplomatic premises,
in violation of international law on diplomatic relations. It would only be
at a subsequent phase, failing an agreement between the Parties, that the
specific circumstances of these violations as well as the precise damage
suffered by Uganda and the extent of the reparation to which it is entitled
would have to be demonstrated.

                                  * * *
  345. For these reasons,

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280                   ARMED ACTIVITIES (JUDGMENT)

  THE COURT,
  (1) By sixteen votes to one,
   Finds that the Republic of Uganda, by engaging in military activities
against the Democratic Republic of the Congo on the latter’s territory,
by occupying Ituri and by actively extending military, logistic, economic
and financial support to irregular forces having operated on the territory
of the DRC, violated the principle of non-use of force in international
relations and the principle of non-intervention ;

  IN FAVOUR : President Shi ; Vice-President Ranjeva ; Judges Koroma,
    Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
    Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham ; Judge ad hoc
    Verhoeven ;
  AGAINST : Judge ad hoc Kateka ;

  (2) Unanimously,
   Finds admissible the claim submitted by the Democratic Republic of
the Congo relating to alleged violations by the Republic of Uganda of
its obligations under international human rights law and international
humanitarian law in the course of hostilities between Ugandan and
Rwandan military forces in Kisangani ;
  (3) By sixteen votes to one,
   Finds that the Republic of Uganda, by the conduct of its armed forces,
which committed acts of killing, torture and other forms of inhumane
treatment of the Congolese civilian population, destroyed villages and
civilian buildings, failed to distinguish between civilian and military
targets and to protect the civilian population in fighting with other com-
batants, trained child soldiers, incited ethnic conflict and failed to take
measures to put an end to such conflict ; as well as by its failure, as
an occupying Power, to take measures to respect and ensure respect
for human rights and international humanitarian law in Ituri district,
violated its obligations under international human rights law and inter-
national humanitarian law ;

  IN FAVOUR : President Shi ; Vice-President Ranjeva ; Judges Koroma,
    Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
    Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham ; Judge ad hoc
    Verhoeven ;
  AGAINST : Judge ad hoc Kateka ;

  (4) By sixteen votes to one,
  Finds that the Republic of Uganda, by acts of looting, plundering and
exploitation of Congolese natural resources committed by members of
the Ugandan armed forces in the territory of the Democratic Republic of

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281                     ARMED ACTIVITIES (JUDGMENT)

the Congo and by its failure to comply with its obligations as an occu-
pying Power in Ituri district to prevent acts of looting, plundering and
exploitation of Congolese natural resources, violated obligations owed to
the Democratic Republic of the Congo under international law ;

  IN FAVOUR : President Shi ; Vice-President Ranjeva ; Judges Koroma,
    Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
    Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham ; Judge ad hoc
    Verhoeven ;
  AGAINST : Judge ad hoc Kateka ;

  (5) Unanimously,
   Finds that the Republic of Uganda is under obligation to make repara-
tion to the Democratic Republic of the Congo for the injury caused ;
  (6) Unanimously,
  Decides that, failing agreement between the Parties, the question of
reparation due to the Democratic Republic of the Congo shall be settled
by the Court, and reserves for this purpose the subsequent procedure in
the case ;
  (7) By fifteen votes to two,
  Finds that the Republic of Uganda did not comply with the Order of
the Court on provisional measures of 1 July 2000 ;

  IN FAVOUR : President Shi ; Vice-President Ranjeva ; Judges Koroma,
    Vereshchetin, Higgins, Parra-Aranguren, Rezek, Al-Khasawneh,
    Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham ; Judge ad hoc
    Verhoeven ;
  AGAINST : Judge Kooijmans ; Judge ad hoc Kateka ;

  (8) Unanimously,
  Rejects the objections of the Democratic Republic of the Congo to the
admissibility of the first counter-claim submitted by the Republic of
Uganda ;
  (9) By fourteen votes to three,
  Finds that the first counter-claim submitted by the Republic of Uganda
cannot be upheld ;
  IN    FAVOUR : President Shi ; Vice-President Ranjeva ; Judges Koroma,
       Vereshchetin, Higgins, Parra-Aranguren, Rezek, Al-Khasawneh,
       Buergenthal, Elaraby, Owada, Simma, Abraham ; Judge ad hoc Verhoeven ;

  AGAINST : Judges Kooijmans, Tomka ; Judge ad hoc Kateka ;

  (10) Unanimously,
  Rejects the objection of the Democratic Republic of the Congo to the

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282                     ARMED ACTIVITIES (JUDGMENT)

admissibility of the part of the second counter-claim submitted by the
Republic of Uganda relating to the breach of the Vienna Convention on
Diplomatic Relations of 1961 ;

  (11) By sixteen votes to one,

  Upholds the objection of the Democratic Republic of the Congo to the
admissibility of the part of the second counter-claim submitted by the
Republic of Uganda relating to the maltreatment of individuals other
than Ugandan diplomats at Ndjili International Airport on 20 August
1998 ;
  IN    FAVOUR : President Shi ; Vice-President Ranjeva ; Judges Koroma,
       Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
       Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham ; Judge ad hoc
       Verhoeven ;
  AGAINST : Judge ad hoc Kateka ;

  (12) Unanimously,

   Finds that the Democratic Republic of the Congo, by the conduct of
its armed forces, which attacked the Ugandan Embassy in Kinshasa,
maltreated Ugandan diplomats and other individuals on the Embassy
premises, maltreated Ugandan diplomats at Ndjili International Airport,
as well as by its failure to provide the Ugandan Embassy and Ugandan
diplomats with effective protection and by its failure to prevent archives
and Ugandan property from being seized from the premises of the Ugan-
dan Embassy, violated obligations owed to the Republic of Uganda
under the Vienna Convention on Diplomatic Relations of 1961 ;

  (13) Unanimously,

  Finds that the Democratic Republic of the Congo is under obligation
to make reparation to the Republic of Uganda for the injury caused ;

  (14) Unanimously,

  Decides that, failing agreement between the Parties, the question of
reparation due to the Republic of Uganda shall be settled by the Court,
and reserves for this purpose the subsequent procedure in the case.

  Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this nineteenth day of December, two thou-
sand and five, in three copies, one of which will be placed in the archives
of the Court and the others transmitted to the Government of the Demo-

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283                 ARMED ACTIVITIES (JUDGMENT)

cratic Republic of the Congo and the Government of the Republic of
Uganda, respectively.

                                         (Signed) SHI Jiuyong,
                                                   President.
                                     (Signed) Philippe COUVREUR,
                                                   Registrar.

  Judge KOROMA appends a declaration to the Judgment of the Court ;
Judges PARRA-ARANGUREN, KOOIJMANS, ELARABY and SIMMA append
separate opinions to the Judgment of the Court ; Judge TOMKA and
Judge ad hoc VERHOEVEN append declarations to the Judgment of the
Court ; Judge ad hoc KATEKA appends a dissenting opinion to the Judg-
ment of the Court.

                                                  (Initialled) J.Y.S.
                                                  (Initialled) Ph.C.

119