The Case Law of the International Court of Justice relating to Uganda's Military Invasion of the Territory of the Democratic Republic of Congo between 1998 and 2003
Department : International Justice
Author : Grace ATALUI MOKANGO
Recently, the International Court of Justice (ICJ) has been in the spotlight following its landmark decision of 9 February 2022 in the case of Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) about reparations.
The ICJ, sitting in the Peace Palace in The Hague, is the principal judicial organ of the United Nations under Article 92 of the Charter. Its purpose is to peacefully settle legal disputes between States members of the United Nations and other States which have become parties to the Statute of the Court or which have accepted its jurisdiction. On the other hand, its purpose is to give advisory opinions on legal questions submitted by the institutions and organs of the United Nations authorised to do so under Article 96 of the Charter. Thus, in response to the acts of aggression committed on the territory of the Democratic Republic of Congo (DRC) in 1998 by Uganda, Rwanda, and Burundi, DRC instituted proceedings against the three countries before the ICJ in 1999, requesting the cessation of the acts of aggression on its territory, reparations for the damage caused, restitution of stolen Congolese property and natural resources.
However, on 15 January 2001, the DRC informed the Court that it was withdrawing from the cases against Burundi and Rwanda, while specifying that it reserved the right to reopen the cases at a later date. As a result of this withdrawal, the two cases were struck off the Court’s list on 30 January 2001. This is how this emblematic case against Uganda was initiated.
Ugandan military actions on the territory of the DRC
The DRC’s application to institute proceedings, registered with the Registry of the Court on 23 June 1999, sets out the facts and actions alleged against Uganda.
The areas affected by the Ugandan military invasion included North Kivu, South Kivu, Maniema, Province Orientale, Katanga, Equateur and Kasai Oriental. It all started when trucks loaded with Ugandan soldiers violated the Congolese borders by entering Goma and Bukavu, respectively the capitals of the province of North Kivu and South Kivu, on 2 and 3 August 1998.
On 4 August 1998, three Congolese planes were hijacked from Goma to land at the military base of Kitona (Bas-Congo) with 600 to 800 Ugandan soldiers. The aims of the operation were: to obtain the rallying of Congolese elements in training at Kitona, to seize the important maritime ports, including Banana, Boma and Matadi in order to asphyxiate the capital Kinshasa, the investment of the hydroelectric dam of Inga which provides electricity to the province of Bas-Congo, the city of Kinshasa and the mining exploitations of Katanga, as well as several other countries of central and southern Africa (Congo-Brazzaville, Zambia, Angola….) and finally, to seize Kinshasa through Bas-Congo, to overthrow the government of public salvation by assassinating President Laurent Désiré Kabila, who was in office at the time, with a view to installing another regime.
The DRC’s application goes on to set out the violations perpetrated by Uganda since 2 August 1998 with regard to violations of international law, international human rights law and international humanitarian law. The non-exhaustive facts set out in the said application can be summarised as follows: the human massacres at Kavuma airport, in South Kivu, in Makobola (these killings targeted civilians including women and children and the Congolese armed forces); the rapes perpetrated against children and women, particularly in Kasika and Bukavu; attempted abductions and assassinations targeting human rights defenders, arrests, arbitrary detentions, torture, inhuman and degrading treatment of the population. In addition to these atrocities, the request highlights the fact that Ugandan troops had driven out all international humanitarian organisations including United Nations Refugee Agency, International Red Cross Committee, United Nations Children’s Fund or Doctor Without Borders in order to carry out their work without witnesses.
Thus, Uganda had not only violated the sovereignty and territorial integrity of the DRC but also its obligations under international law. It was in its judgement on the merits of 19 December 2005 that the ICJ ruled on the issue of Uganda’s military invasion of the DRC.
Uganda’s severe breaches of its obligations under international law
In this decision, which was final, not subject to appeal and binding on the parties involved, the Court concluded that by engaging in various military actions, occupying the territory of Ituri in the DRC, Uganda had violated the principle of non-use of force in international relations and the principle of non-intervention under Article 2 paragraph 4 of United Nations Charter. The Court also found violations of international humanitarian law and international human rights law following the invasion.
During the hostilities, the Ugandan armed forces engaged in large-scale military actions on Congolese soil in Ituri, which province was also under occupation. The Court relied on Hague Regulations, which were considered as reflecting customary international law, to answer the question of whether Uganda was considered an occupying power. Under Article 42 of the Hague Regulations of 1907, the Court had concluded that a territory is considered occupied when it is placed in fact under the authority of the enemy army, and the occupation extends only to the territory where such authority is established and can be exercised.
The Court thus ruled that Uganda had established and exercised its authority in Ituri as an occupying power and therefore held Uganda responsible both for any acts of its armed forces and for the failure to exercise due diligence to prevent violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own behalf.
Finally, serious violations of human rights and the laws and customs of war occurred because there was no distinction between civilians and combatants, thus Uganda had failed to protect the civilian population who were not participating in the armed conflict. Furthermore, the Ugandan armed forces were found guilty of committing murders, acts of torture and inhuman treatment against Congolese civilians. There was also no distinction between military objectives and civilian property during the Ugandan occupation in Ituri, causing the destruction of civilians’ villages and buildings. In addition, Ugandan forces conscripted, enlisted and involved child soldiers in hostilities in addition to inciting ethnic conflict.
As an occupying power, Uganda was required to take measures to end these massive violations of international law in Ituri. As a result of all these failures, the Court found that Uganda had breached its obligations under international law including Article 2.4 of the United Nations Charter, as well as humanitarian law, and human rights law. The Court ruled, at the request of the DRC, on the exploitation of natural resources and acts of pillage committed in Ituri by the Ugandan armed forces. Thus, the legal consequences of Uganda’s breach of its international obligations require it to make reparation for the damage caused to DRC.
The ICJ sets the amount of reparations owed by Uganda to the DRC at US$ 325 million
Since 2005, the DRC and Uganda had not reached an agreement on the issue of the amount of reparations Uganda had to pay, in accordance with the Court’s 2005 decision. In the absence of a compromise between the two states, the Court, therefore, assessed and determined the amount owed by Uganda in a final and irrevocable decision dated 9 February 2022.
The Court held that Uganda had an obligation of full reparation for the internationally wrongful acts it committed during the events. Uganda was required to make reparation for, among other things, the following: its violation of the UN Charter through the use of force and the principle of non-intervention; its status as an occupying power that failed to exercise due diligence concerning the commission of mass crimes against the civilian population; and its unlawful support for armed groups which deliberately violated international human rights law and the laws and customs of war.
The ruling by ICJ about compensation of 325 million USD came as a blow to DRC after it sought a massive USD 11 billion in reparations over the devastating conflict that lasted from 1998 to 2003. The DRC had demanded reparation for damage to persons, property, natural resources, and macroeconomic damage. However, the Court rejected the latter claim due to insufficient evidence because a clear link between Uganda’s actions and this damage had not been demonstrated. The amount of compensation awarded by the Court is a total of USD 325 million and the sum is to be paid in annual instalments. The amount of reparations is divided as follows: $225 million for loss of life, $40 million for damage to property and $60 million for damage to natural resources.
The Court has relied on the Case Concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) in 2018 to emphasise and highlight that it is well established in international law that reparation due to a State is compensatory in nature and should not be punitive.
However, following the Court’s decision, Uganda considered that granting reparations to the DR Congo was unfair : “While the amount awarded is far less than that sought by the DRC, Uganda nevertheless considers the judgement unfair and wrong, just as the previous 2005 judgement on liability was unfair and wrong,” the foreign ministry said in a statement (Biryabarema, 2022).
The Court thus ruled that the total amount of the reparations should be paid over five years at the rate of US$60,000 per year and the first payment is due on 1 September 2022.
Finally, the judges voted unanimously that in case of delay in payment, default interest at the annual rate of 6% will accrue on any amount due and not paid, starting from the day after it should have been paid.
The Court has consistently stated that the context of the present case is particularly relevant to the analysis of the facts, the conviction of Uganda and the fact that this conviction is a violation of international law. This is a case about one of the most complex and deadly armed conflicts on the African continent.
As FranceInfo, a French news radio, points out after this decision of the Court, the feelings of the Congolese people remain divided, with some feeling satisfied. This legal battle started in 1999, with the Judgement on merit came in 2005. It is only in 2022, the case ended with the Court’s decision on reparations. FranceInfo notes that according to Christian Uteki, a lawyer in the Ituri region, believes that “this condemnation goes in the direction of dissuading any state that would try to carry out military activities in another independent state without its agreement“. However, he believes that “the amount of 325 million is very minimal (in view of) all the damage perpetrated on Congolese territory” and in view of “the destruction, the human toll, the ecological toll…“. He asks the United Nations “to put pressure on Uganda to carry out this sentence” so that the money goes to the victims (franceinfo Afrique avec AFP, 2022).
This decision renders justice to the Congolese people, warns States against committing internationally wrongful acts and reiterates the Court’s missions in the context of the peaceful settlement of disputes under international law.
International Court of Justice, Press release unofficial , ( 9 Feb 2022), Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) : The Court fixes the amounts of compensation due from the Republic of Uganda to the Democratic Republic of the Congo, Retrieved 19 Feb 2022 from : https://www.icj-cij.org/public/files/case-related/116/116-20220209-PRE-01-00-EN.pdf
International Court of Justice, Overview of the Case, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Retrieved 18 Feb 2022 from : https://www.icj-cij.org/en/case/116
International Court of Justice, Summary of the Judgement of 19 December 2005, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Retrieved 19 Feb 2022 from : https://www.icj-cij.org/public/files/case-related/116/10457.pdf
Redaction Africanews, Mixed reactions follow ICJ ruling asking Uganda to pay $325m in reparation to DRC. (2022). Africanews. https://www.africanews.com/2022/02/10/mixed-reactions-follow-icj-ruling-on-drc-conflict-asking-uganda-to-pay-325m-in-damages/
Biryabarema, E. (2022, February 10). Uganda says ICJ ruling awarding DR Congo reparations is unfair. Reuters.
franceinfo Afrique avec AFP. (2022, February 10). Ce que l’on sait sur la condamnation de l’Ouganda dans le conflit qui l’a opposé à la RDC il y a 25 ans. Francetvinfo.Fr. https://www.francetvinfo.fr/monde/afrique/republique-democratique-du-congo/ce-que-l-on-sait-sur-la-condamnation-de-l-ouganda-dans-le-conflit-qui-l-a-oppose-a-la-rdc-il-y-a-25-ans_4953510.html