361

      DISSENTING OPINION OF JUDGE AD HOC KATEKA

  Disagreement with the Judgment on its key ﬁndings — Treatment of evidence
not even-handed — Decision on Respondent’s defences of consent and self-
defence mistaken — Kisangani events — Serious accusations of violations
of human rights and international humanitarian law need higher standard of
proof — Reliance on United Nations reports concerning alleged exploitation
of DRC’s natural resources — Ruling on violation of provisional measures
unnecessary — Unjustiﬁed treatment of Uganda’s counter-claims.

  1. I ﬁnd myself in disagreement with the Court’s Judgment on key
aspects on the use of force, violations of human rights and international
humanitarian law and the alleged unlawful exploitation of the DRC’s
natural resources. With regret, I am therefore constrained to vote against
several of the operative clauses of the dispositif. Before explaining my
reasons for disagreeing with parts of the Judgment, I wish to comment
on some evidentiary issues and on the background to the case.

         I. EVIDENTIARY ISSUES AND BACKGROUND TO THE CASE

   2. The Court enjoys freedom and ﬂexibility with regard to the con-
sideration of evidence. In this case, as the Court acknowledges, both
Parties have presented it with a vast amount of evidentiary materials. It
has therefore to assess the probative value of the documents and eliminate
from further consideration those it deems unreliable. This is not an easy
task, as it calls for choice. In this exercise of choice, a judge is guided by
an “inner conviction” (inevitably inﬂuenced by one’s background and
experience), which should prick the conscience so that one lives up to the
requirement of Article 20 of the Court’s Statute. As judge ad hoc, I am
mindful of the words of Judge Lauterpacht that I am bound to exercise
my function impartially and conscientiously while also discharging the
special obligation to endeavour to ensure, so far as is reasonable, that
argument in favour of the Party that appointed me “is reﬂected —
though not necessarily accepted — in [this] dissenting opinion” (Applica-
tion of the Convention on the Prevention and Punishment of the Crime of
Genocide, Provisional Measures, Order of 13 September 1993, I.C.J.
Reports 1993, p. 409, para. 6).

  3. In my view, the Court has not been even-handed in its treatment of

197

362                ARMED ACTIVITIES (DISS. OP. KATEKA)

the materials submitted by the two Parties. For example, the Court terms
as “a bundle of news reports of variable reliability” (Judgment, para. 136),
which the Court does not ﬁnd weighty and convincing. This is evidence
adduced by Uganda to establish the Sudan’s involvement in aiding anti-
Ugandan elements in the DRC. This is a whole set of over 140 docu-
ments, which is published in Volume IV of the DRC’s Reply. Earlier, in
paragraph 68 of the Judgment, the Court regards as “an interested
source” and rejects evidence proffered by the DRC from the same vol-
ume in the context of the Kitona airborne operation. This being the case,
one would expect the Court to regard it as a case of “statement against
interest” and treat favourably the documents from the same volume that
Uganda relies upon.
   4. The volume in question is a collection by the Integrated Regional
Information Network (IRIN). The sources for the information include
United Nations agencies, NGOs and other international organizations
and media reports. One would have expected this Ofﬁce for the Coordi-
nation of Humanitarian Affairs (OCHA) afﬁliated network to be given
more credence than it gets, especially when the press information is
“wholly consistent and concordant as to the main facts and circum-
stances of the case” (United States Diplomatic and Consular Staff in
Tehran, Judgment, I.C.J. Reports 1980, p. 10, para. 13).

But the Court excludes this large amount of materials noting that it lacks
corroboration. This is in spite of the fact that the information about the
Sudan, that is in this volume, is from different media from all over the
world.
   5. A further illustration of the unequal treatment of the Parties is
depicted when the Court cites an ICG report of August 1998 that the
Court acknowledges as “independent”. The report, according to the
Court, does seem to suggest some Sudanese support for the ADF’s activi-
ties (ADF is a virulent anti-Ugandan rebel group). The Court goes on to
quote the report : “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.” (Judgment, para. 135.) This theme of the DRC’s inability recurs
throughout the Judgment. The Court does not examine this report any
further to see if the DRC can be held responsible for the unlawful use of
force against Uganda. But the Court holds Uganda internationally
responsible for unlawful exploitation of the DRC’s resources in spite of
the Court’s ﬁnding that it was not governmental policy of Uganda to do
so (Judgment, paras. 242 and 250).

  6. The Court continues with its tendency to discount evidence in
favour of Uganda when it dismisses a key report as of no relevance to
Uganda’s case. This is in connection with Uganda’s contention of incor-
poration into Kabila’s army of thousands of ex-FAR and Interahamwe

198

363                ARMED ACTIVITIES (DISS. OP. KATEKA)

génocidaires in May 1998. A United States Department report, which is
also set aside by the Court, condemned the DRC’s recruitment and train-
ing of former perpetrators of the Rwandan genocide. By declaring the
report as irrelevant, the Court seems to be unaware of the fourth objec-
tive of Uganda’s High Command document that states : “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.” (Judgment, para. 109.)

   7. In short, “the Court has chosen to depreciate [Uganda’s evidence],
to omit any consequential statement of the law”, to paraphrase Judge
Schwebel’s words in his dissenting opinion in the Nicaragua case (Mili-
tary and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America), Merits, Judgment, I.C.J. Reports 1986,
p. 272, para. 16). To this end, more examples can be quoted to illustrate
how the Court has dealt unevenly with the Parties. The Court, in one
part of the Judgment (para. 132), is satisﬁed that the evidence does show
a series of attacks occurring within the relevant time frame against
Uganda. However, the Court observes that these facts are not denied by
the DRC, but its position is that the ADF alone was responsible for the
events.
   8. At the start of its substantive consideration of the Parties’ conten-
tions, the Court expresses its awareness of the complex and tragic situa-
tion which has long prevailed in the Great Lakes region. The Court
notes, however, that its task is to respond, on the basis of international
law, to the particular legal dispute brought before it. The Court con-
cludes, “[a]s it interprets and applies the law, it will be mindful of context,
but its task cannot go beyond that” (Judgment, para. 26).
   9. However, the task of the Court cannot be in a vacuum. The existing
realities must be taken into consideration. In this particular case, the
realities include the genocide that happened in Rwanda in 1994. The
effects of this genocide still reverberate in the region to this day. One of
the root causes of this crisis has been ethnicity, which was exploited by
the colonialists during colonial times. An additional factor is the terrible
history of unscrupulous dictators — all of whom had support from
abroad. In the case of the DRC, it has led to the land of Patrice
Lumumba not to experience peace for most of the time since indepen-
dence. It is only now that there is hope for such peace.

                           II. THE USE OF FORCE

   10. I voted against the ﬁrst paragraph of the dispositif, which ﬁnds
that Uganda has violated the principle of non-use of force in interna-
tional relations, by engaging in military activities against the DRC, by

199

364                   ARMED ACTIVITIES (DISS. OP. KATEKA)

occupying Ituri and by actively extending military, logistic, economic and
ﬁnancial support to irregular forces having operated on the territory of
the DRC.
   11. This omnibus clause creates confusion by mixing up jus ad bellum
with jus in bello. A ﬁnding on Uganda engaging in military activities
against the DRC should have been separated from that of occupation.
I am of the opinion that the ﬁnding on occupation has been invoked by
the Court to justify its ﬁndings of violations of human rights and inter-
national humanitarian law.
   12. In this regard, it bears recalling that the ﬁrst of the DRC’s ﬁnal
submissions 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 . . . has violated . . . the principle of non-use of force in inter-
      national relations, including the prohibition of aggression . . .” 1
      (Judgment, para. 25.)
The Court has not found Uganda responsible for aggression against the
DRC. It has reached a ﬁnding short of aggression by using the language
of “extending military, logistic, economic and ﬁnancial support to irregu-
lar forces . . .” (para. 1 of the dispositif). This phraseology evokes the
memory of the dictum in the case of Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States of America) (Mer-
its, Judgment, I.C.J. Reports 1986, p. 14). The dictum left open the deﬁ-
nition of “armed attack” as applied in the Charter of the United Nations
and under customary international law.

  13. In this regard, it has been stated thus “that actions by irregulars
can constitute an armed attack” is not challenged, and

      “the controversy centres on the degree of state involvement that is
      necessary to make the actions attributable to the state and to justify
      action in self-defence in particular cases” (Christine Gray, Interna-
      tional Law and the Use of Force, 2000, p. 97).

Given the controversy that still persists, I am of the view that the Court
should have taken the opportunity to clarify the question of the use of
force in self-defence. This is more so in view of the fact that irregular
forces lie at the heart of the dispute between the Parties in this case.
   14. Following the Nicaragua Judgment, the Court was criticized for
stating in its dictum that the provision of weapons and logistical support
to private groups did not amount to an armed attack. The gist of the

   1 “Aggression is the use of armed force by a State, against the sovereignty, territorial

integrity or political independence of another State.” (General Assembly resolution 3314
(XXIX), Art. 1.)

200

365                ARMED ACTIVITIES (DISS. OP. KATEKA)

Court’s language in the present case has the same effect as that in the
Nicaragua Judgment (Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Merits, Judgment,
I.C.J. Reports 1986, p. 14). In this respect, some publicists contend that
the use of force below the threshold of an “armed attack” is covered by
the general principle of non-intervention (B. Simma (ed.), The Charter of
the United Nations — A Commentary, 2nd ed., 2002).

  15. In the context of irregulars, others such as Sir Robert Jennings
hold the view that the provision of arms and logistical support amount to
armed attack. “Accordingly, it seems to me that to say that the provision
of arms, coupled with ‘logistical or other support’ is not armed attack is
going much too far.” (Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Merits, Judgment,
I.C.J. Reports 1986, p. 543 ; dissenting opinion of Judge Sir Robert
Jennings.) This is the meaning I put to the words of the Court in the
ﬁrst paragraph of the dispositif. However, I apply them — see below —
to the deeds of the DRC in support of anti-Uganda insurgents.

   16. In its analysis of the question of the use of force, the Court has not
put much weight to Uganda’s two arguments for circumstances preclud-
ing wrongfulness, namely, consent and self-defence. As a result of this,
the Court has arrived, in my view, at a mistaken conclusion that Uganda
has violated the principle of non-use of force by engaging in military
activities against the DRC. An examination of Uganda’s arguments
below reveals the contrary.
   17. Uganda contends that its armed forces were present in the DRC
from May 1997 to August 1998 and from July 1999 to June 2003 with
the consent of the DRC, pursuant to oral agreements with President
Laurent-Désiré Kabila in May and December 1997, the bilateral Proto-
col of April 1998, the multilateral Lusaka Agreement of July 1999 and
the bilateral Luanda Agreement of September 2002. For the period not
covered by the DRC’s consent, i.e., from mid-September 1998 to mid-
July 1999, Uganda contends that its military forces in the Congo during
this ten-month period were there pursuant to the lawful exercise of the
right to self-defence.
   18. Concerning the defence of consent, I ﬁnd myself in disagreement
with the Court’s conclusion that the consent of the DRC was withdrawn
at the Victoria Summit of 8 August 1998. The Court, in my view, has
chosen the date of 8 August rather arbitrarily. For there could be several
other dates such as (a) 2 August 1998 when the DRC claims that
Uganda invaded it, beginning with a major operation at Kitona. But the
Court has rightly concluded that it has not been established that Uganda
participated in the attack at Kitona ; (b) the date of 28 July 1998, when
President Kabila issued a statement terminating the Rwandan military
presence, “with effect from this Monday, 27 July 1998”. However, the
Court has found that the presence of the Ugandan forces in the DRC

201

366                ARMED ACTIVITIES (DISS. OP. KATEKA)

did not become unlawful by virtue of President Kabila’s statement ;
(c) 13 August 1998 when the United Nations Permanent Representative
of the DRC told a press conference that Uganda had invaded the DRC ;
(d) 11 September 1998 when Uganda invoked the right of self-defence,
following the publication of its High Command document, which
was implemented by operation “Safe Haven”.

  19. From the above dates, a reasonable inference can be drawn that
the statements attributed to the various leaders of the DRC merely
expressed complaints concerning the situation in the DRC. They were
not meant to withdraw the consent for the continued presence of Ugan-
da’s military forces in the Congo. In this regard, it bears stressing that
Uganda took the initiative leading to the Victoria Falls Summits I and II
of August and September 1998, respectively. A communiqué addressed to
the security concerns of the DRC and those of its neighbours was issued.

   20. Regrettably, as an indication of the persistent uneven treatment of
the Parties, the Court has not given a correct interpretation to the Lusaka
Ceaseﬁre Agreement of 10 July 1999. For example, there is the Court’s
misleading argument that the arrangements made at Lusaka addressed
certain “realities on the ground” and represented “an agreed modus oper-
andi” without the DRC consenting to the presence of Ugandan troops
(Judgment, para. 99). This argument would seem to suggest that the
parties to the Lusaka Agreement were merely dealing with a de facto
situation of disarming rebels and withdrawing of foreign troops. How-
ever, as the Court acknowledges, the Agreement shows that it was more
than a ceaseﬁre agreement (Judgment, para. 97). It addresses the key
aspect of the conﬂict by the parties to the Lusaka Agreement, recognizing
that the root cause of the conﬂict was the use of Congolese territory by
armed bands, seeking to destabilize or overthrow neighbouring Govern-
ments.

 21. In order to address the root cause of the conﬂict, Chapter 12 of
Annex A provides that the Parties agreed
      “(a) Not to arm, train, harbour on its territory, or render any form
           of support to subversive elements or armed opposition move-
           ments for the purpose of destabilising the others ;

           . . . . . . . . . . . . . . . . . . . . . . . . . . .
       (d) To address the problem of armed groups in the Democratic
           Republic of Congo in accordance with the terms of the
           [Lusaka] Agreement.” (Counter-Memorial of Uganda (CMU),
           Vol. II, Ann. 45, Ann. A, Chap. 12.)
  Even the Secretary-General of the United Nations recognized the

202

367                    ARMED ACTIVITIES (DISS. OP. KATEKA)

problem of armed groups as particularly difﬁcult and sensitive when he
stated in a report that “[i]t lies at the core of the conﬂict in the subregion
and undermines the security of all the States concerned” (CMU, Vol. III,
Ann. 46, para. 21).

   22. Thus, while agreeing with the Court that the Lusaka Agreement
did not have a retrospective effect, I do not share the Court’s view that
the calendar for withdrawal (of foreign forces) and its relationship to the
series of major events did not constitute consent by the Congo to the
presence of Ugandan forces for at least 180 days from 10 July 1999 and
beyond that time if the envisaged necessary major events did not occur.
As counsel for Uganda argued during the oral pleadings, there is a link-
age between the disarmament of the armed groups and the subsequent
withdrawal of armed forces of foreign States from the DRC. This is
borne out by paragraph 12 of Annex B to the Ceaseﬁre Agreement,
where the timetable shows that the withdrawal of foreign forces would
not occur until after a successful conclusion of the Congolese national
dialogue (D-Day 2 + 90 days), the disarmament of armed groups
(D-Day + 120 days) and the orderly withdrawal of all foreign forces
(D-Day + 180 days) (CMU, Vol. II, Ann. 45, Ann. B). Indeed there was a
delay in the implementation of the Agreement because the inter-Congo-
lese dialogue did not start as envisaged in the timetable.

   23. The Court, having reached a wrong interpretation, in my view, of
the Lusaka Agreement, proceeds to state that the Luanda Agreement
of September 2002, a bilateral agreement between the DRC and Uganda,
alters the terms of the multilateral Lusaka Agreement. I am of the view
that the other parties to the Lusaka Agreement (i.e., Angola, Namibia,
Rwanda and Zimbabwe) would have objected if the bilateral alteration
caused problems. The Luanda Agreement gave impetus to the stalled
implementation of the Lusaka Agreement. I differ once again with the
Court’s conclusion that the various treaties involving the DRC and
Uganda did not constitute consent to the presence of Ugandan troops in
the territory of the DRC after July 1999. “Lusaka” and more explicitly
“Luanda” continued the validation in law of Uganda’s military presence
in the DRC.

   24. As regards the right of self-defence, the Court has regrettably come
to the conclusion that the legal and factual circumstances for the exercise
of this right by Uganda were not present. Accordingly, it refuses to
respond to the Parties’ contentions as to whether and under what condi-
tions contemporary international law provides for a right of self-defence
against large-scale attacks by irregular forces. Equally, it holds that the
preconditions for the exercise of self-defence do not exist in the circum-

  2   D-Day is the date of the formal signing of the Ceaseﬁre Agreement.

203

368                ARMED ACTIVITIES (DISS. OP. KATEKA)

stances of the present case. However, it ﬁnds it appropriate to observe in
an obiter dictum that the taking of airports and towns many hundreds of
kilometres from Uganda’s border would not seem proportionate to the
series of transborder attacks Uganda claimed had given rise to the right
of self-defence, nor to be necessary to that end.

   25. The refusal by the Court to delve into the question of self-defence
arises from its rejection of the evidence submitted by Uganda. The Court
relies on the Porter Commission Report as the main evidence on this
issue. The role of Brigadier-General James Kazini is central to the
Court’s ﬁndings — on when operation “Safe Haven” commenced and on
the question of the occupation of Ituri. Uganda’s argument of the alter-
native view concerning the armed bands is set aside.

   26. Thus it seems, in the interest of judicial economy, that the Court
has excluded much of the evidence submitted by Uganda on the question
of self-defence. This leads the Court to apply insufﬁcient law to insufﬁ-
cient facts ; hence the failure by the Court to discharge its judicial func-
tion in this respect. For example on the issue of the Sudan, the Court
recognizes that an ICG independent report of August 1998 (“North Kivu
into the Quagmire”) seems to suggest some Sudanese support for the
ADF’s activities. However, the Court acknowledges that the report also
implies that this was not a matter of Congolese policy, but rather a reﬂec-
tion of its inability to control events along its border. This is a rather
surprising position of the Court. If the report implies the Sudan’s involve-
ment with the ADF, the Court should have examined it further and
linked it to other reports for corroboration purposes. Instead the Court
simply quotes the report as stating that the ADF was exploiting the
incapacity of the Congolese Armed Forces (FAC) in controlling areas
of North Kivu with neighbour Uganda.

   27. The Court should have been alerted by the ICG report so as to
take into account other corroborating reports of the Sudan’s support for
anti-Uganda rebels. Such similar documents are another ICG report of
1999 (“How Kabila Lost His Way”), which the Court regards as not con-
stituting reliable evidence. No reason is given as to why the report is not
reliable despite its stating that the DRC had effectively admitted the
threat to Uganda’s security posed by the Sudan. Annex 108 of the DRC’s
Reply quotes reports that indicate that the Sudan had been ﬂying mili-
tary supplies from Juba to Kabila forces in Isiro and Dongo. The same
reports refer to 4,000 Sudanese soldiers being engaged in the conﬂict. It is
worth noting that Isiro is 320 km from Uganda’s borders with the DRC.

  28. One could cite more examples about the Sudanese “connection”

204

369                ARMED ACTIVITIES (DISS. OP. KATEKA)

with the DRC and its destabilizing effect on Uganda. It sufﬁces for one
to cite the factor of the Lord’s Resistance Army (LRA). In its Judgment,
the Court refers to a Ugandan military intelligence report, which states
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, the Congo was entitled
so to have acted. One is led to remark that it would be a strange concept
of self-defence that would allow the airlifting of rebels to the DRC by the
Sudan to murder civilians in either Rwanda or Uganda, which countries
were in conﬂict with the DRC. And yet, the Court concludes that there
was no tripartite conspiracy between the DRC, the Sudan and the anti-
Uganda rebels.

   29. As regards the LRA, I wish to underscore the inter-connectivity of
the events in the Great Lakes region. The Sudan had been sponsoring the
LRA that for nearly 20 years had caused massive and grave violations of
human rights and international humanitarian law in northern Uganda.
This has led the Prosecutor of the International Criminal Court to indict
ﬁve leaders of the LRA for crimes against humanity. The Sudan
was ferrying the LRA rebels to the DRC in order to create “another
frontier” in its conﬂict with Uganda. It has also been said that Zaire’s
attempt to evict Congolese Tutsi triggered the Congo crisis. These
examples show that the situation in the DRC has an internal, regional
and international dimension. Another dimension of the inter-connectivity
of events in the region is that the Hima people are to be found in the
DRC, Rwanda, Burundi and Uganda. The various pogroms in Rwanda
and Burundi led to massive inﬂows of refugees into Uganda and Tan-
zania in the 1960s. Hence instability in one country creates instability
in another owing to the ethnic composition of the people. In this situa-
tion it is not easy to tell whether a person belongs to this or that ethnic
group.

   30. In this regard, the Court fails to recognize the inter-connectivity of
the conﬂict when it discounts a United States State Department state-
ment of October 1998, condemning the DRC’s recruitment and training
of former perpetrators of the Rwandan genocide. This lack of awareness
by the Court displays itself by not reacting to Uganda’s complaints about
the DRC’s conﬂation of Uganda and Rwanda in this case. Notwith-
standing the fact that Uganda has shown several times in its argument its
rejection of offers by Rwanda to participate in joint operations in the
DRC, the Applicant in its pleadings, and the Court in its treatment of the
evidence, have both unwittingly maintained the impression of not appre-
ciating that Rwanda and Uganda are two different States.

  31. As already stated, insurgent activity is at the heart of the conﬂict in

205

370                ARMED ACTIVITIES (DISS. OP. KATEKA)

the region. Even to this day, MONUC is still struggling in joint opera-
tions with the DRC to disarm the various rebel groups, both local and
foreign (Reuters report of 11 November 2005 on an operation in North
Kivu province). The DRC, in its Reply, acknowledges that anti-Ugandan
armed groups have been operating from this territory for years : “As they
had always done in the past, the forces of the ADF continued to seek
refuge in Congolese territory.” (Reply of the Democratic Republic of the
Congo (RDRC), Vol. I, para. 3.15.) As if this was right, the DRC argues
that no one, and certainly not their Ugandan counterparts, have ever
held the Congolese authorities responsible for any of these actions. This
implies acquiescence on Uganda’s part.

  32. However, Uganda had protested the massacres at Kichwamba
Technical School of 8 June 1998 in which 33 students were killed and
106 abducted, an attack at Benyangule village on 26 June 1998 in which
11 persons were killed or wounded, the abduction of 19 seminarians
at Kiburara on 5 July 1998 and an attack on Kasese town on 1 August
1998, in which three persons were killed. In spite of all this evidence of
brutal and deadly attacks, the Court merely comments that “[t]he DRC
does not deny that a number of attacks took place, but its position is that
the ADF alone was responsible for them” (Judgment, para. 133). The
Court concludes that there is no satisfactory proof of the involvement in
these attacks, direct or indirect of the Government 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 . . . 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.” (Judgment, para. 146.)
   33. Here the Court seems to reconﬁrm its 1986 dictum in the Nicara-
gua case concerning insurgent activities and what amounts to an “armed
attack”. The DRC, in its Reply already referred to, reasserts that the fact
of simply tolerating or ﬁnancing irregular forces is not sufﬁcient to estab-
lish a full scale “armed attack” : “For this to be established,” the DRC
argues,
      “Uganda must prove that the DRC was ‘substantially involved’ in
      the acts of irregular forces and hence that the Congolese Govern-
      ment had given speciﬁc instructions or directions to them or had
      actually controlled the performance of such acts” (RRDC, Vol. I,
      para. 3.135).

206

371                ARMED ACTIVITIES (DISS. OP. KATEKA)

In its 1986 Nicaragua Judgment, the Court stated the following :
         “The Court sees no reason to deny that, in customary law, the
      prohibition of armed attacks may apply to the sending by a State of
      armed bands to the territory of another State, if such an operation,
      because of its scale and effects, would have been classiﬁed as an
      armed attack rather than as a mere frontier incident had it been car-
      ried out by regular armed forces.” (Military and Paramilitary Activi-
      ties in and against Nicaragua (Nicaragua v. United States of
      America), Merits, Judgment, I.C.J. Reports 1986, p. 103, para. 195.)

   34. The Court has thus stuck to its limited interpretation of Article 3 (g)
of General Assembly resolution 3314 (XXIX). By so doing, it is
encouraging that impunity in that proof of the element of “substantial
involvement”, which implies awareness and substantial participation, will
be invoked — as the DRC has done in its pleadings in this case — by
culprits to avoid responsibility for wrongful acts. We have already referred
to the alternative view, which Uganda advanced in the context of self-
defence. Even if the Court found that Uganda had not established the
legal and factual circumstances for the exercise of a right of self-defence,
it should have found that military support by the DRC for anti-Uganda
insurgents constitutes unlawful intervention. Instead of doing this, the
Court ﬁnds that Uganda’s ﬁrst counter-claim, by which Uganda con-
tends 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, cannot be upheld.

   35. Thus the effort of Zaire’s President Mobutu (cited in the counter-
claim) to overthrow President Museveni’s Government since 1994 — and
even earlier since 1986 — is subversive activity, which not only consti-
tutes unlawful intervention in Uganda’s affairs, but also is cumulatively
tantamount to an armed attack upon Uganda. In my view this, along
with incessant rebel attacks in the post “Zaire era”, would entitle Uganda
to exercise the right of self-defence.

   36. In this regard, both the Applicant and the Court have advanced
the argument of the DRC’s inability to rein in anti-Uganda rebels. In its
conclusion on the part of Uganda’s ﬁrst counter-claim, alleging Congo-
lese responsibility for tolerating the rebel movements prior to May 1997,
the Court states :
        “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 . . . the Court cannot conclude that the absence of action

207

372                 ARMED ACTIVITIES (DISS. OP. KATEKA)

      by Zaire’s Government against the rebel groups in the border area is
      tantamount to ‘tolerating’ or ‘acquiescing’ in their activities.” (Judg-
      ment, para. 301.)

Here, it bears stating that the inability of the DRC to control anti-
Uganda rebels operating from the Congo is contrary to the ﬁrst principle
enunciated in the Declaration on Friendly Relations and Co-operation
(General Assembly resolution 2625 (XXV) of 24 October 1970) : “Every
State has the duty to refrain from organizing or encouraging the organi-
zation of irregular forces of armed forces of armed bands, including mer-
cenaries, for incursion into the territory of another State.”

   The same principle is found in the Corfu Channel case, where it is
stated that it is “every State’s obligation not to allow knowingly its ter-
ritory to be used for acts contrary to the rights of other States” (Corfu
Channel, Merits, Judgment, I.C.J. Reports 1949, p. 22).
   37. From the constant references in the Court’s Judgment to the
DRC’s inability to control anti-Uganda rebels, one may be forgiven for
getting the impression that the DRC was facing problems of controlling
its territory, at least in the eastern part of its territory. Thus reasons of
geography, incapacity or distance have been invoked to avoid attribution
of responsibility to the DRC for violations of its obligations to its neigh-
bours, in particular Uganda. Here, a quote from the “Commentary” on
the United Nations Charter is apt :

        “A special situation arises, if a State is not reluctant but incapable
      of impeding acts of terrorism committed by making use of its terri-
      tory. Although such terrorist acts are not attributable to the State,
      the State victim of the acts is not precluded from reacting by military
      means against the terrorists within the territory of the other State.
      Otherwise, a so-called failed State would turn out to be a safe haven
      for terrorists, certainly not what Articles 2 (4) and 51 of the Charter
      are aiming at.” (B. Simma (ed.), The Charter of the United
      Nations— A Commentary, 2nd ed., 2002, Vol. I, p. 802, para. 36.)

   38. The Court has concluded that Article 51 of the United Nations
Charter does not allow the use of force to protect perceived security
interests beyond the strict conﬁnes there laid down. It adds that other
means are available to a concerned State, in which the role of the Security
Council will be paramount. It has not elaborated as to whether Uganda
was entitled to the use of force on a threshold below “armed attack”.
Uganda had been calling for the United Nations Security Council to send
a peacekeeping force to the DRC. It is not enough for the Court to refer

208

373                 ARMED ACTIVITIES (DISS. OP. KATEKA)

Uganda to the Security Council. It bears mentioning that many tragic
situations have occurred on the African continent due to inaction by the
Council.

   39. Equally, the Court has accused Uganda of not reporting to the
Security Council events that it had regarded as requiring it to react in
self-defence. In this connection, I wish to quote from Judge Schwebel’s
dissenting opinion in the Nicaragua case :

         “A State cannot be deprived, and cannot deprive itself, of its
      inherent right [nothing in the Charter shall impair that inherent
      right, including the requirement of reporting to the Security Council
      the measures taken] of individual or collective self-defence because
      of its failure to report measures taken in the exercise of that right to
      the Security Council.” (Military and Paramilitary Activities in and
      against Nicaragua (Nicaragua v. United States of America), Merits,
      Judgment, I.C.J. Reports 1986, p. 377, para. 230.)
This reporting requirement has been abused by aggressor States to justify
themselves that by reporting, they had complied with Article 51 of the
Charter concerning self-defence. Hence this requirement should be
handled with caution when it comes to issues of self-defence. In prac-
tice, in some cases, some States are not aware that they are required to
report measures taken. While this is not an excuse, it should be regarded
as an extenuating circumstance.

   40. I have voted in favour of the second operative clause of the dis-
positif concerning the events in Kisangani. My vote in favour is in respect
of the hostilities between Ugandan and Rwandan military forces in
Kisangani. The mere ﬁghting violated the sovereignty and territorial
integrity of the DRC. I cannot, however, in good conscience, pronounce
myself on the violations of human rights and international humanitarian
law because there were such violations by the many parties to the DRC
conﬂict, including the DRC. In this regard, my voting in favour of the
ﬁfth and sixth operative paragraphs of the dispositif is only in respect of
the events in Kisangani. As I state below, I disagree with the Court’s
ﬁndings on violations of human rights and international humanitarian
law and the unlawful exploitation of the DRC’s natural resources and
thus cannot support a general ﬁnding for the making of reparation to the
DRC on these matters.

   41. I also agree with the Court on the admissibility of the DRC’s
claims in relation to Uganda’s responsibility for the events in Kisangani.
It is not necessary for Rwanda to be a party to this case in order for the
Court to determine whether Uganda’s conduct violated rules of interna-
tional law. While the indispensable third party principle does not apply

209

374                 ARMED ACTIVITIES (DISS. OP. KATEKA)

here, one must reiterate that the DRC’s conﬂation of Rwanda and
Uganda is uncalled for.

      III. HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW

   42. The Court has found that Uganda, by the conduct of its armed
forces, which committed acts of killing, torture and other forms of
abuses, failed to discriminate between civilian and military targets and to
protect the civilian population, trained child soldiers, incited ethnic con-
ﬂict and failed to take measures to end such conﬂict ; as well as by its
failure as the occupying Power to take measures to respect and ensure
respect for human rights and international humanitarian law in the
district of Ituri, violated its obligations under international human
rights law and international humanitarian law.

   43. I have voted against this over-arching ﬁnding which mixes up
several issues. The ﬁnding contains serious accusations against Uganda.
As such a higher standard of proof is required : “A charge of such excep-
tional gravity against a State would require a degree of certainty that has
not been reached here.” (Corfu Channel, Merits, Judgment, I.C.J. Reports
1949, p. 17.) It would also seem pertinent to cite the observation by
Judge Higgins in her separate opinion in the Oil Platforms case :

        “Beyond a general agreement that the graver the charge the more
      conﬁdence must there be in the evidence relied on, there is thus little
      to help parties appearing before the Court (who already will know
      they bear the burden of proof) as to what is likely to satisfy the
      Court.” (Oil Platforms (Islamic Republic of Iran v. United States of
      America), Judgment, I.C.J. Reports 2003, p. 234, para. 33.)

   44. At the outset of considering this ﬁnding by the Court, it bears
repeating that there were massive and egregious violations of human
rights and international humanitarian law in the DRC. As already
observed, the DRC itself is not absolved from blame. Various reports in
the public domain state that vile crimes have been perpetrated in the
DRC. Four million people have died since the conﬂict began there. As
counsel for Uganda stated during the oral proceedings

      “a . . . balanced picture . . . without angels and without demons. It is
      not a picture without victims, however, because both Uganda and

210

375                ARMED ACTIVITIES (DISS. OP. KATEKA)

      the DRC are victims. Victims yes, but entirely innocent, no, because
      there is no one in this picture who is totally without blame.”
      (CR 2005/6, p. 58.)

   45. As evidence of the serious accusation against Uganda for the vio-
lation of human rights and international humanitarian law, the Court
relies on the sixth MONUC report of February 2001 and the MONUC’s
special report on the events in Ituri, January 2002-December 2003 (doc.
S/2004/573 of 16 July 2004). The Court proceeds to state that the United
Nations documents are corroborated by other credible sources of NGOs,
such as the HRW’s report of July 2003, which is available at http ://hrw.
org/reports/2003/ituri0703. For its part, Uganda asserts that the reports
are unreliable and partisan (cites ASADHO, a Congolese NGO as a case
in point). Uganda makes the following arguments that (a) MONUC did
not have a mission (on the ground) appropriate to investigations of a spe-
ciﬁcally legal character ; (b) the MONUC report makes assumptions
about the causes of the Hema-Lendu conﬂict, assumptions which have no
historical basis ; (c) Uganda ﬁnds it anomalous and open to serious ques-
tion the supposition that in Ituri Uganda forces should be associated
with patterns of abuse when this did not occur in other regions. In my
view, these are cogent reasons which the Court should have taken into
serious consideration before reaching its ﬁnding that Uganda violated
human rights and international humanitarian law in the DRC.

   46. I ﬁnd it remarkable that the DRC accuses Uganda of carrying out
a deliberate policy of terror. Wisely, the Court did not endorse this rather
excessive charge. On the basis of the “clean hands” theory — the prin-
ciple that an unlawful action cannot serve as the basis of an action in
law — the DRC should be debarred from raising such accusations.

   47. Having in mind the seriousness of the accusations levelled by the
DRC, the Court should have been more cautious and demanded satis-
factory evidence before concluding that the UPDF killed, tortured, and
committed other forms of inhumane treatment against the Congolese
civilian population. Relying on reports of the Special Rapporteurs and
MONUC reports is not advisable. As is known, on a number of occa-
sions, reports of the Special Rapporteurs of the Human Rights Commis-
sion have generated controversies of a political and legal nature. Instead
of helping to ﬁnd a solution to the situation in question, the reports were
ignored by some of the addressees on the grounds that they lacked objec-
tivity. In some cases, the writers of the United Nations reports have no
access to the countries concerned. In other cases, they are ill-informed
and thus end up writing speculative reports as will be illustrated in the
next section of this opinion.
   48. In this regard, I am troubled by the Court’s ﬁnding that there is
persuasive evidence that the UPDF incited ethnic conﬂicts and took no

211

376                 ARMED ACTIVITIES (DISS. OP. KATEKA)

action to prevent such conﬂicts in the Ituri region. It is strange that
Uganda, which had its military presence elsewhere in the DRC, should be
accused of such a charge only in Ituri. Allegations against Uganda of
inciting ethnic conﬂict between the Hema and Lendu are based on a mis-
taken view of the area in question where 18 different ethnic groups live
side by side. Uganda acknowledges the long-standing rivalry between the
Hema and Lendu. Such rivalry had led to massacres of civilians. Uganda
stood to gain nothing by inciting ethnic conﬂict. As explained earlier, the
spread of the different ethnic groups in the Great Lakes region is such
that based on history and recent experience, it would be folly for any
country to try to fan ethnic rivalry. It would boomerang.

   49. From the United Nations reports, it seems that the rebel groups in
the DRC are the ones that recruited child soldiers and ferried them to
Uganda. For example, the RCD-ML is said to have halted its military
recruitment campaign due to the growing protest of UNICEF and
MONUC. Indeed, Uganda granted access to UNICEF to the children at
Kyankwanzi (RDRC, Ann. 32, para. 85). Once again, in my view, there
is no evidence to justify the Court’s conclusion that Uganda recruited
child soldiers in the DRC.

        IV. THE UNLAWFUL EXPLOITATION OF NATURAL RESOURCES
   50. I have voted against the fourth operative clause of the dispositif
that ﬁnds that Uganda violated obligations owed to the DRC under
international law, by acts of looting, plundering and exploitation of Con-
golese natural resources committed by members of the Ugandan armed
forces in the territory of the DRC and by its failure to comply with its
obligations as occupying Power in the Ituri district to prevent acts of
looting, plundering and exploitation of Congolese natural resources.

  51. Counsel for the DRC stated during the oral pleadings that
      “this is the very ﬁrst time that the Court has been called upon to
      address the responsibilities of a State for the illegal exploitation of
      natural resources which are located in the territory of another State
      which it occupies” (CR 2005/5, p. 15).
Counsel for Uganda agreed with this observation. Hence given the nature
and the gravity of the charge, a higher standard of proof is required on
the part of the Applicant to prove that the Respondent committed these
acts of plunder and pillage. The DRC cited various sources for its evi-
dence, including the United Nations Panel reports on the Illegal Exploi-
tation of Natural Resources and Other Forms of Wealth of the DRC. It

212

377                ARMED ACTIVITIES (DISS. OP. KATEKA)

also cited the Porter Commission, which was set up by the Government
of Uganda to investigate allegations made in United Nations Panel
reports, as conﬁrming the accusation of unlawful exploitation of Congo-
lese natural resource.

  52. There is a lot of doubt concerning the reliability of the United
Nations Panel reports. Even the Porter Commission Report, on which
the DRC and the Court rely for evidence on exploitation, criticized the
methodology followed by the United Nations Panels. It states that “it
would seem that the majority of evidence likely to be obtained by such a
methodology [of ﬂexible data collection] would be either hearsay, biased
or pure gossip, all untested” (Porter Commission Report, p. 7). Thus the
United Nations Panel report of 12 April 2001 cites “some sources” as
saying that the Presidents of Rwanda and Uganda and the late President
Kabila were shareholders in BCDI (Banque de commerce de développe-
ment et d’industrie, located in Kigali). The Panel then concludes in the
same paragraph, “[b]ut this was not the case” (RDRC, Vol. III, Ann. 69,
para. 29). In paragraph 52, the Panel report alleges that some members of
President Museveni’s family were shareholders of DGLI (The Dara
Great Lakes Industries, of which DARA Forest is a subsidiary). Then
the Panel adds “although more investigation is needed” (ibid., Ann. 69,
para. 52).

  53. This is the type of gossip that emerges from these United Nations
documents. Thus the Court was forced to rely on the Porter Commission
Report, which according to the Court provides sufﬁcient and convincing
evidence. Here one must caution again over reliance on a single source as
evidence to prove allegations, not only of unlawful exploitation of the
DRC’s natural resources, but also of the use of force. In any case, the
Porter Commission found that there was no Ugandan governmental
policy to exploit the DRC’s natural resources. The Commission also
found that individual soldiers engaged in commercial activities and looting
were acting in a purely private capacity.

   54. In this respect, I ﬁnd myself in disagreement with the Court’s con-
clusion that Uganda is internationally responsible for the acts of exploi-
tation of the DRC’s natural resources and has violated its obligation of
due diligence in regard to these acts, of failing to comply with its obliga-
tion as an occupying Power in Ituri. The Ugandan soldiers, who com-
mitted acts of looting, did so in violation of orders from the highest
Ugandan authorities. In his radio message of 15 December 1998 to COs
and all UPDF units in the DRC, President Museveni said the following :

213

378                ARMED ACTIVITIES (DISS. OP. KATEKA)

      “1. Ensure that there is no ofﬁcer or man of our forces in Congo
          who engages in business.

       2. Also report to me any other public servant whether currently
          based in Congo or not who tries to engage in business in
          Congo.” (Rejoinder of Uganda (RU), Vol. III, Ann. 31.)

Hence, in my view, individual acts of UPDF soldiers, committed in their
private capacity and in violation of orders, cannot lead to attribution of
wrongful acts. Paragraph 8 of the Commentary to Article 7 of the draft
Articles of the International Law Commission 2001 distinguishes between
unauthorized, but still “ofﬁcial” conduct, on the one hand and “private”
conduct on the other.

   55. As noted earlier, the Court reached a ﬁnding of occupation in
order to rationalize its ﬁnding on human rights and international humani-
tarian law. It has done the same in respect of the alleged unlawful exploi-
tation of the DRC’s natural resources. From this ﬁnding, it is easy to
invoke jus in bello in order to engage Uganda’s international responsi-
bility for acts and omissions of Ugandan troops in the DRC. Uganda
has argued that it did not control the rebel groups that were in charge
of parts of eastern Congo in general and in Ituri in particular. Its limited
military presence could not have made this possible. In any case, the
Respondent just — as I do — does not ﬁnd the contention of occupation
to be proven.
   56. The Court has rightly, in my view, not accepted part of the DRC’s
ﬁnal submission on the violation of the Congo’s permanent sovereignty
over its natural resources (PSNR) because this has not been proven. The
PSNR concept is embodied in General Assembly resolution 1803 (XVII)
of 1962. The PSNR was adopted in the era of decolonization and the
assertion of the rights of newly independent States. It thus would be
inappropriate to invoke this concept in a case involving two African
countries. This remark is made without prejudice to the right of States to
own and or dispose of their natural resources as they wish.

                        V. LEGAL CONSEQUENCES

  57. In its fourth submission, the DRC requests the Court to adjudge
and declare that Uganda ceases all continuing internationally wrongful
acts, adopt speciﬁc guarantees and assurances of non-repetition and
make reparation for all injury caused. In this regard, I agree with the
Court that there is no evidence of continuing illegal acts on the part of
Uganda in the DRC. As such, there is no need for the Court to make any

214

379                ARMED ACTIVITIES (DISS. OP. KATEKA)

ruling on cessation. Uganda, as the DRC acknowledges, withdrew its
troops from the DRC on 2 June 2003. There is therefore no need for spe-
ciﬁc guarantees and assurances of non-repetition. The Court has taken
judicial notice of the Tripartite Agreement on Regional Security in the
Great Lakes of 26 October 2004. This Agreement between the DRC,
Rwanda and Uganda provides for obligation to respect the sovereignty
and territorial integrity of the countries in the region and cessation of any
support for armed groups or militias.

  58. Concerning reparation, this could follow at a subsequent phase of
the proceedings, if the Parties fail to reach agreement after negotiations.

               VI. COMPLIANCE WITH THE COURT’S ORDER
                      ON PROVISIONAL MEASURES

   59. The DRC requests the Court to adjudge and declare that Uganda
has violated the Order of the Court on provisional measures of 1 July
2000 by not complying with the three provisional measures, namely,
(a) refrain from armed action in the DRC ; (b) compliance with obliga-
tions under international law, in particular the United Nations and OAU
Charters and Security Council resolution 1304 (2000); and (c) respect
within the zone of conﬂict for fundamental human rights and for the
applicable provisions of humanitarian law.

   60. 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. However, the Court ﬁnds that
Uganda has violated provisional measures concerning human rights and
international humanitarian law through actions of Ugandan troops
during the period of their presence in the DRC, including the period
from 1 July 2000.

   61. The Court’s ﬁnding that Uganda did not comply with the Order of
the Court on provisional measures of 1 July 2000 shows, as indicated
earlier, lack of concern for the action taken, not in good faith, by the
Applicant to raise this issue against the Respondent when the Applicant
itself has committed grave violations of human rights and international
humanitarian law. Thus, I am constrained not to support the position of
the Court on its ﬁnding. The Court, in my view, should not have dealt
with the violation of the provisional measures. I have already referred to
the “clean hands” theory, which I deem to be apt on this issue as well.

215

380               ARMED ACTIVITIES (DISS. OP. KATEKA)

                         VII. COUNTER-CLAIMS

  62. Uganda’s ﬁrst counter-claim relates to acts of aggression allegedly
committed by the DRC. The second relates to attacks on Uganda’s dip-
lomatic premises and personnel in Kinshasa and on Ugandan nationals.
The third counter-claim was ruled inadmissible by the Order of the Court
of 29 November 2001.

  63. I agree with the Court’s reasoning, which rejects Uganda’s claim
that the DRC is not entitled at the merits phase of the proceedings to
raise objections to the admissibility to the counter-claims submitted by
Uganda. In the Oil Platforms case the Court ruled that Iran was entitled
to challenge “the ‘admissibility’ of the [United States’] counter-claim” on
the merits (Oil Platforms (Islamic Republic of Iran v. United States of
America), Judgment, I.C.J. Reports 2003, p. 210, para. 105).

  64. I have voted in favour of operative clause 8 of the dispositif by
which the Court rejects objections of the DRC to the admissibility of the
ﬁrst counter-claim submitted by Uganda. Before proceeding with further
consideration of this counter-claim, I wish to make a general comment
on the way the Court has treated this claim of Uganda which is the
Applicant in this context and the DRC is the Respondent. It is a matter
of regret that the Court agrees with the DRC’s division of the ﬁrst
counter-claim into three periods. The Court invokes the excuse of
“practical purposes” in agreeing to divide the counter-claim into three
periods : (a) the Mobutu era, i.e., before May 1997 ; (b) the Kabila
period, i.e., May 1997-August 1998 ; (c) the period after 2 August 1998.

   65. This “slicing” technique of the ﬁrst counter-claim is to the dis-
advantage of Uganda because as the Applicant in this respect points out
“the DRC is seeking to limit Uganda’s counter-claim”. Uganda main-
tains that Zaire and the DRC are not distinct entities and by virtue of the
State continuity principle, it is precisely the same legal person, which is
responsible for the acts complained of in the ﬁrst counter-claim. The divi-
sion of the counter-claim makes it difﬁcult to follow the reasoning of the
Court. Admissibility issues are mixed with those of merits. It would have
been better if the ﬁrst counter-claim had been dealt with in its entirety,
without dividing it into three periods.

   66. I have voted against paragraph 9 of the dispositif by which the
Court ﬁnds that the ﬁrst counter-claim submitted by Uganda cannot be
upheld. I ﬁnd myself in disagreement with the Court’s dismissal of the
evidence submitted by Uganda — for the ﬁrst period of the ﬁrst counter-
claim — when it argues that evidence is of “limited probative value”
when it is “neither relied on by the other Party nor corroborated by
impartial, neutral sources” (Judgment, para. 298). This observation of
the Court concerns President Museveni’s address to the Ugandan Parlia-

216

381               ARMED ACTIVITIES (DISS. OP. KATEKA)

ment on 28 May 2000 entitled “Uganda’s Role in the Democratic
Republic of the Congo”. Evidence by the NGO Human Rights Watch
(HRW) is regarded as “too general to support a claim of Congolese
involvement . . .” (Judgment, p. 298). I do not share the Court’s charac-
terization and treatment of this evidence.

   67. In relation to the second period of the ﬁrst counter-claim, the
Court ﬁnds that Uganda has failed to provide conclusive evidence of
actual support for anti-Ugandan rebel groups by the DRC. The Court
notes, with approval, the improved relations between the two Parties.
The Court should have remembered its earlier observation that “[t]he
political climate between States does not alter their legal rights” (Judg-
ment, para. 294). The Court comments that this period is marked by
clear action by the DRC against rebels. If it had accepted evidence by
Uganda, it would have noted the “dual role” by the Congolese highest
authorities of seeming to co-operate with Uganda while at the same time
fraternizing with the Sudan and anti-Ugandan rebels.

   68. Regarding the second counter-claim, I have voted in favour of
rejecting the DRC’s objection to the admissibility of the part of the claim
relating to the breach of the 1961 Vienna Convention on Diplomatic
Relations (paragraph 10 of the dispositif). I agree with the Court’s
reasoning in its interpretation of the Order of 29 November 2001.

   69. I have voted against operative paragraph 11 of the dispositif,
which upholds the objection of the DRC to the admissibility of the part
of the second counter-claim relating to the maltreatment of persons other
than Ugandan diplomats at Ndjili Airport on 20 August 1998. The invo-
cation by Uganda of the international minimum standard relating to the
treatment of foreign nationals is considered by the Court as an exercise of
diplomatic protection. Thus according to the Court, Uganda would need
to meet the conditions necessary for the exercise of diplomatic protection,
namely, the requirement of Ugandan nationality of the claimants and the
prior exhaustion of local remedies. The Court avoids dealing with the
issue of these persons on the grounds that it has not been established that
they were Ugandan nationals. In my view, the Court should have invoked
international humanitarian law to protect the rights of these persons. The
Court would seem not to have given enough weight to violations of the
rights of these persons at Ndjili Airport by the DRC.

  70. I voted in favour of operative paragraph 12, which ﬁnds that the
DRC has violated obligations owed to Uganda under the 1961 Vienna
Convention on Diplomatic Relations by Congo’s armed forces, maltreat-
ing Ugandan diplomats and other individuals at the embassy premises,
maltreating Ugandan diplomats at Ndjili Airport, as well as its failure to
provide the Ugandan Embassy and Ugandan diplomats with effective
protection and failure to protect archives and property from seizure.

217

382               ARMED ACTIVITIES (DISS. OP. KATEKA)

I also agree with the Court that it will only be at a subsequent phase,
failing an agreement between the Parties, that the issue of reparation to
Uganda will be settled by the Court.

                                              (Signed) J. L. KATEKA.

218


1208

JOINT DECLARATION OF VICE-PRESIDENT RANJEVA,
JUDGES GUILLAUME, HIGGINS, KOOIJMANS,
AL-KHASAWNEH, BUERGENTHAL AND ELARABY

[English Original Text]

Various objections to the jurisdiction of the Court — Freedom of choice of
the Court — Guiding criteria: consistency; certitude; implications for the other
pending cases — Judgment of the Court inappropriately based on its lack of
jurisdiction ratione personae — Judgment incompatible with previous decisions
of the Court.

1. We have voted in favour of the dispositif of the Judgment because,
at the end of the day, we each agree that this case cannot, as a matter of
law, proceed to the merits. Nevertheless, we profoundly disagree with the
reasoning upon which the Judgment rests, in particular the ground upon
which the Court has found it has no jurisdiction.

2. It is not unusual that, in a case, the Court has the possibility of
determining its jurisdiction on more than one ground (Right of Passage
over Indian Territory, Preliminary Objections, Judgment, I.C.J Reports
1957, pp. 129-134; Aerial Incident of 27 July 1955 (Israel v. Bulgaria),
Judgment, I.C.J. Reports 1959, pp. 132-134; Land and Maritime Bound-
ary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary
Objections, Judgment, I. C.J Reports 1998, pp. 284-289; Aerial Incident
of 10 August 1999 (Pakistan v. India), Jurisdiction, Judgment, I. CJ.
Reports 2000, pp. 19-24). Submissions may have been made to the Court
that it lacks jurisdiction by reference to more than one of the common
bases of jurisdiction (that is to say, ratione personae, ratione materiae,
ratione temporis). If the Court finds that, on two or more grounds, its
jurisdiction is not well founded, it may choose the most appropriate
ground on which to base its decision of lack of competence. The Court
does not necessarily first have to dispose of the conditions laid down in
Article 35 of the Statute, dealing only later with the conditions laid down
in Articles 36 and 37.

3. The choice of the Court has to be exercised in a manner that reflects
its judicial function. That being so, there are three criteria that must
guide the Court in selecting between possible options. First, in exercising
its choice, it must ensure consistency with its own past case law in order
to provide predictability. Consistency is the essence of judicial reasoning.
This is especially true in different phases of the same case or with regard
to closely related cases. Second, the principle of certitude will lead the
Court to choose the ground which is most secure in law and to avoid a
ground which is less safe and, indeed, perhaps doubtful. Third, as the
principal judicial organ of the United Nations, the Court will, in making

52
LEGALITY OF USE OF FORCE (JOINT DECL.) 1209

its selection among possible grounds, be mindful of the possible implica-
tions and consequences for the other pending cases.

4. In the earlier phase of the present case — as in other cases relating
to events after the break-up of the Socialist Federal Republic of Yugo-
slavia — the Court had chosen to base itself on jurisdictional considera-
tions ratione temporis and ratione materiae.

5. In this respect it should first be recalled that when the Court gave an
Order of 2 June 1999, in response to a request by the Federal Republic of
Yugoslavia for the indication of provisional measures, in which it found
that it lacked prima facie jurisdiction to rule on Yugoslavia’s Applica-
tion, it did so on quite different grounds from the one on which the Court
has based itself in the present decision.

6. In the Orders concerning Belgium, Canada, Netherlands, Portugal
and the United Kingdom, the Court observed that Yugoslavia’s declara-
tion accepting the compulsory jurisdiction of the Court under Article 36,
paragraph 2, of the Statute, had been filed with the United Nations
Secretary-General on 26 April 1999 (three days before the institution of
proceedings). In that declaration, Yugoslavia recognized, on condition
of reciprocity, “the jurisdiction of the said Court in all disputes arising
or which may arise after the signature of the present Declaration,
with regard to the situations or facts subsequent to this signature”.

The Court found that the Application was directed, in essence, against
the bombing of Yugoslav territory by several members of NATO. It
observed that the bombings began on 24 March 1999. Accordingly, it
considered that the disputes before it had arisen some time prior to
25 April 1999. The Court further recalled its established jurisprudence
whereby any limitation ratione temporis attached by one of the parties to
its declaration of acceptance of the Court’s jurisdiction “holds good as
between the Parties” and concluded from this that the declaration of
Yugoslavia, taken in conjunction with those made by the Parties which
had also accepted the Court’s jurisdiction under Article 36, paragraph 2,
of the Statute, did not constitute a basis on which its jurisdiction could
prima facie be founded (see, for example, case concerning Legality of Use
of Force ( Yugoslavia v. Portugal), Order of 2 June 1999, I.C.J. Reports
1999 (II), p. 667, para. 29). The Court, thus lacking prima facie jurisdic-
tion ratione temporis, concluded that it did not need to examine whether
Yugoslavia was or was not a Member of the United Nations and a party
to the Statute in 1999, or whether on such basis it had jurisdiction ratione
personae.

7. In all the Orders, the Court next noted that Yugoslavia and certain
of the respondent States were parties to the United Nations Genocide
Convention without reservation. It recalled the definition of genocide as
stated in the Convention and observed that, according to that definition,

53
LEGALITY OF USE OF FORCE (JOINT DECL.) 1210

“[the] essential characteristic [of genocide] is the intended destruction of
‘a national, ethnical, racial or religious group’” (.C./. Reports 1999 (IT),
p. 670, para. 39). In the Court’s view, it did not appear “at the present
stage of the proceedings that the bombings which form the subject of the
Yugoslav Application ‘indeed entail the element of intent, towards a
group as such, required by the provision quoted above’” (ibid., p. 670,
para. 39).

8. Based on different reasoning, the Court has now confirmed that
it lacks jurisdiction to entertain the claims presented by Serbia and
Montenegro. It began by finding that Serbia and Montenegro, on
29 April 1999, was not a Member of the United Nations and not a party
to the Statute. It concluded therefrom that the Court was not open to
Serbia and Montenegro under Article 35, paragraph 1, of the Statute.

Moreover, the Court considered that Article 35, paragraph 2, of the
Statute enabled States not parties to the Statute to appear before the
Court only by virtue of treaties concluded prior to the entry into force of
the Statute. It observed that the Genocide Convention entered into force
at a later date, on 12 January 1951. It thus concluded that Article 35,
paragraph 2, did not grant Serbia and Montenegro access to the Court
under Article IX of the Convention. Accordingly, the Court was not
called upon to decide “whether Serbia and Montenegro was or was not a
party to the Genocide Convention” when the Applications were filed. In
any event, the Court was, once again, not open to Serbia and Monte-
negro.

In sum, and contrary to its position in 1999, the Court has thus pre-
ferred to rule on its jurisdiction ratione personae, without even examining
the questions of jurisdiction ratione temporis and ratione materiae on
which it had previously pronounced prima facie.

9. This change of position is all the more surprising as the reasoning
now adopted by the Court is at odds with judgments or orders previously
rendered by the Court.

10. We would first observe that the question whether Yugoslavia was
a Member of the United Nations and as such a party to the Statute
between 1992 and 2000, remained a subject of debate during that period.
The Court declined to settle the issue, both in 1993 (Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro) ), Pro-
visional Measures, I.C.J. Reports 1993, p. 14, para. 18) and in 1999 when
issuing its Order on provisional measures (Legality of Use of Force
( Yugoslavia v. Portugal), Order of 2 June 1999, I. C.J. Reports 1999 (IT),
p. 668, para. 32). It then confined itself to stating that the solution
adopted in this respect by Security Council resolution 757 (1992) and
General Assembly resolution 47/1 was “not free from legal difficulties”
(Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and

54
LEGALITY OF USE OF FORCE (JOINT DECL.) 1211

Montenegro)), Provisional Measures, I.C.J. Reports 1993, p. 14,
para. 18).

Subsequent to the admission of Serbia and Montenegro to the United
Nations on 1 November 2000, the Court had to consider the question
whether that admission clarified the previous position. The Court then
found, in its Judgment of 3 February 2003, that

“resolution 47/1 did not inter alia affect the Federal Republic of
Yugoslavia’s right to appear before the Court or to be a party to a
dispute before the Court under the conditions laid down by the Stat-
ute” (Application for Revision of the Judgment of 11 July 1996 in the
Case concerning Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herze-
govina v. Yugoslavia), Preliminary Objections ( Yugoslavia v. Bosnia
and Herzegovina), I.C.J. Reports 2003, p. 31, para. 70).

The Court added that

“General Assembly resolution 55/12 of 1 November 2000 cannot
have changed retroactively the sui generis position which the Federal
Republic of Yugoslavia found itself in vis-a-vis the United Nations
over the period 1992 to 2000, or its position in relation to the Statute
of the Court” (ibid., para. 71).

The Court thus previously found in 2003 that the Federal Republic of Yugo-
slavia could appear before the Court between 1992 and 2000 and that this
position was not changed by its admission to the United Nations in 2002.

11. Further, the interpretation given in the present Judgment of
Article 35, paragraph 2, of the Statute also appears to us to be at odds
with the position previously adopted by the Court in its Order of 8 April
1993, where it considered that

“proceedings may validly be instituted by a State against a State
which is a party to such a special provision in a treaty in force, but
is not party to the Statute, and independently of the conditions laid
down by the Security Council in its resolution 9 of 1946” / Applica-
tion of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia
and Montenegro) ), Provisional Measures, Order of 8 April 1993,
1. C.J. Reports 1993, p. 14, para. 19).

It is moreover astonishing that the Court found it necessary to rule on
the scope of Article 35, paragraph 2, whereas the Applicant did not
invoke this text.

12. Turning to the second criterion that the Court should apply in
selecting between alternative grounds for its decision — that of certi-
tude — we also find this not to be reflected in the ground chosen by the
Court today. Nothing has occurred, in the series of cases concerning
Kosovo, since the Court’s last judgment in 2003, to suggest that the

55
LEGALITY OF USE OF FORCE (JOINT DECL.) 1212

grounds previously chosen have now lost legal credibility. Further, the
grounds today selected by the Court are less certain than others open to
it. The Court has determined that the admission of the Applicant to the
United Nations in November 2000 “did not have, and could not have
had, the effect of dating back to the time when the Socialist Federal
Republic of Yugoslavia broke up and disappeared” (para. 77). The Court
has also stated that “the significance of this new development in 2000 is
that it has clarified the thus far amorphous legal situation concerning the
status of the Federal Republic of Yugoslavia vis-à-vis the United Nations”
(para. 78). Without specifying whether this “clarification” refers to the
period 1992-2000, the Court asserts that it has now become “clear that
the sui generis position of the Applicant could not have amounted to its
membership in the Organization”. We find this proposition far from self-
evident and we cannot trace the steps of the reasoning. Such grounds
seem to us to be less legally compelling and therefore less certain, and
more open to different points of view, than the grounds relied upon by
the Court thus far and which are now set aside by the Court.

13. We have referred also to the care that the Court must have, in
selecting one among several possible grounds for a decision on jurisdic-
tion, for the implications and possible consequences for other cases. In
that sense, we believe that paragraph 39 of the Judgment does not
adequately reflect the proper role of the Court as a judicial institution.
The Judgment thus goes back on decisions previously adopted by the
Court, whereas it was free to choose the ground upon which to base them
and was under no obligation to rule in the present case on its jurisdiction
ratione personae. Moreover, this approach appears to leave some doubt
as to whether Yugoslavia was a party, between 1992 and 2000, to the
United Nations Genocide Convention. Such an approach could call into
question the solutions adopted by the Court with respect to its jurisdic-
tion in the case brought by Bosnia and Herzegovina against Serbia and
Montenegro for the application of the Genocide Convention. We regret
that the Court has decided to take such a direction.

(Signed) Raymond RANJEVA.
(Signed) Gilbert GUILLAUME.
(Signed) Rosalyn Hiccins.
(Signed) Pieter KOOIMANS.
(Signed) Awn Shawkat AL-KHASAWNEH.
(Signed) Thomas BUERGENTHAL.
(Signed) Nabil ELARABY.

56