History of Application of Congo v. Uganda

Background to the Case

In June 1999, the Democratic Republic of Congo had filed its application to the International Court of Justice in which it had alleged that Uganda had carried out “acts of armed aggression” on its territory and that this was a “flagrant violation of the United Nations Charter and the Charter of the Organization of African Unity.” In its application, it had specifically submitted three claims. They were:

1. Uganda had violated covenants of international law governing the non-use of force, peaceful settlement of disputes, respect of countries’ sovereignty and non-intervention by participating in military activities against the DRC, by occupying DRC territory and by facilitating the operations of irregular forces operating in the DRC;
2. Uganda had blatantly violated international legal rules and regulations regarding respect of human rights by committing violent atrocities against DRC citizens and their property and did not prevent the commitment of such acts by parties under its command.
3. Uganda had illegally exploited Congolese natural resources and had plundered the countries assets and wealth, thus violating international conventional and customary law, such as the jus in bello duties owed by an occupying power, right to self-determination of peoples, and the principles of non-interference in domestic issues.

Uganda filed three counter-claims, two of which were admissible. They were

• The DRC had violated Article 2(4) of the UN Charter when it had employed force against Uganda.
• The DRC had violated the law of diplomatic protection, specifically the1961 Vienna Convention on Diplomatic Relations (Vienna Convention), when it allowed attacks on certain Ugandan diplomatic locations and personnel in Kinshasa.
• The DRC had withdrawn its prior consent to the presence of Ugandan troops by August 1998 but Uganda had argued that even if the Court were unable to find any consent for its presence and military activities in the DRC, it had the right to employ force for the purpose of self-defence, post- September 1998. However, the court did not uphold Uganda’s claim of self-defense as per Article 51 of the UN charter.

The above mentioned article states that “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 inter- national peace and security”.

However, Uganda had not claimed to use the force against the threat of an anticipated or eminent attack. Hence, what was left to prove was that had there been an attack on Uganda, and if the answer to this was in the affirmative, then was the DRC responsible for this actual armed attack? But Uganda did not claim that the armed forces of the DRC had attacked it and the Court found no evidence to the effect of DRC’s involvement in the other attacks that had taken place. Therefore, the Court rejected this claim without getting in to the depths of the necessity, or proportionality needs for self-defence.

The Court also accepted the DRC’s claims that Uganda had in fact violated the sovereignty of the DRC, as well as its territorial integrity, and had violated the principles of non-interference in domestic issues. It further said that, ““[t]he unlawful military intervention by Uganda was of such a magnitude and duration that the court considers it to be a grave violation of the prohibition on the use of force expressed in Art. 2 paragraph 4 of the Charter.”

The Court stated in its Judgement that Uganda had “violated the principle of non-use of force in international relations and the principle of non-intervention” and its presence and armed activity in DRC between August 1998 (when consent had been withdrawn by DRC) and June 2003 was representative of “belligerent occupation” under the covenants of international humanitarian law.

The acts which had been committed by UPDF and its officers, such as the lack of differentiation accorded to civilian and military objectives during armed conflict, were violations of the articles of customary international law as well as certain treaty obligations of Uganda. The Court also found “ample credible and persuasive evidence to conclude that officers and soldiers of the UPDF, including the most high-ranking officers, were involved in the looting, plundering and exploitation of the DRC’s natural resources and that the military authorities did not take any measures to put an end to these acts.” It therefore granted the DRC’s request for reparations.

Regarding the counterclaims made by Uganda, the Court ruled in favor of Uganda on its second counter-claim which involved allegations of the raid and destruction of Ugandan embassy in Kinshasa by Congolese soldiers as well as plundering of Ugandan diplomatic properties in Kinshasa after the last Ugandan diplomats vacated them in September 1998. In its final judgment, the Court ordered Uganda to pay reparations to the DRC and stated that the Vienna Convention remained applicable even in times of armed conflict and requires respect of diplomatic personnel, property and premises at all times.

Separate Opinions of the Judges

In his separate opinion, Judge Simma said that while he agreed with everything the Court in its judgement, it was the matters that the Court had decided to stay quiet on that he had issues with. He believed that the Court should have qualified the military activities of Uganda as acts of aggression. He felt that the Court had “avoided dealing with the explicit request of the DRC to find that Uganda, by its massive use of force against the Applicant has committed an act of aggression.”

Additionally, both Judge Simma and Judge Koojimans agree that the Court missed the opportunity to clarify an aspect of law which is shaded by confusion and controversy: use of force and self-defence. Since DRC was not responsible for the armed activity against Uganda, Uganda’s claim that it was acting in self-defence was not upheld. But, as Judge Koojiman said in his separate opinion, “It would be unreasonable to deny the attacked State the right to self-defence merely because there is no attacker State and the Charter does not so require so.”

Judge Simma concluded his opinion on this particular topic by saying that it would have been more appropriate had the Court dealt with this issue of the use of armed force on a large scale by non-State actors instead of shying away from it, and this would not have affected its eventual result. But the “unnecessarily cautious” way in which this question was approached as well as the evasion of the issue of “aggression”, the Court has conveyed a lack of comfort at being faced with questions which are extremely important in the arena of contemporary international relations.

Impact and Conclusion

Kammerhofer (2007) believes that this was a landmark case and judgement both, as this is the first time in the ICJ’s History that it was found that state has violated the prohibition of the use of force as per Article 2(4), “a direct violation of the single most important provision of this single most important treaty of international law” and for the first time, the Court discussed directly the applicable scope of self-defence, as laid down in Article 51.

However, similar to the point Judges Simma and Koojimans raised, he states that a very important issue which now needs to be address is that if and when private actors use armed forces against a state, under what conditions does Article 51 accord the latter with the right of self-defence and against which parties is it justified in using force?

Judge Koojimans in his separate opinion in Wall mentions the “the generally accepted interpretation [of Article 51] for more than 50 years” which has traditionally excluded private actors from causing armed attacks but along with Judge Simma also states that post-9/11, the Charter has changed. But as Kammerhofer (2007) concluded, “In finding that Uganda had violated the Charter, the Court kept to its jurisprudence constante; it did not bow to ‘post-11 September’ pressure to extend the logic of Article 51 to private actors”.

In Congo v. Uganda, the Court did not consider it suitable “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.” But as Capaldo (2007) argued that times have changed, and international law must answer questions about how to deal with contemporary international society which today has new actors who own and employ military equipment comparable to that of sovereign states. The threat and danger these actors pose needs “new rules of attribution and standards less rigid in their application, together with objective institutional mechanisms, to allow for self-defense in the face of a non-state armed attack.”

Bibliography

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