CHAPTER #

DRC v. Uganda: The Applicability of International Humanitarian Law and Human Rights Law

in Occupied Territories

Tom Ruys[(] and Sten Verhoeven[(]

INTRODUCTION

In its Judgment of December, 19, 2005 in the Case concerning Armed Activities on the Territory of the Congo (DRC v. Uganda)[1] the International Court of Justice (ICJ) has for the second time affirmed the simultaneous application of international humanitarian law and human rights law to occupied territories, be it in circumstances significantly different from those under consideration in Palestinian Wall.[2] Unlike in the latter case, the Court did not dwell on the criteria for the extraterritorial application of international human rights instruments, but confined itself to the conclusion that these instruments are applicable ‘in respect of acts done by a State in the exercise of its jurisdiction outside its own territory’, before listing the provisions violated by Uganda. Nevertheless, the Court’s affirmation of its earlier ruling in the specific circumstances of Uganda’s invasion of Congolese territory, together with its finding that Article 43 of the Hague Regulations comprises the obligation to take measures “to secure respect for the applicable rules of international human rights law and international humanitarian law”, generates important consequences that may reverberate well beyond the Great Lakes region.

The present chapter delves deeper into these issues by examining the possible thresholds for application of international humanitarian law (IHL) on belligerent occupation on the one hand and international human rights law on the other hand as well as the possible interplay between the two groups of norms in relation to occupied territories. The chapter begins with a summary of the Court’s ruling in DRC v. Uganda. Subsequently, we will examine the Court’s interpretation of the concept of “occupation” in IHL. Part three turns to the extraterritorial applicability of human rights instruments in occupied territories. Part four focuses on the interplay of IHL and human rights norms in terms of normative content. The chapter concludes with some final observations.

A. SYNOPSIS OF THE JUDGEMENT

On December 19, 2005, the ICJ delivered its judgment in the Armed Activities on the Territory of the Congo case between the Democratic Republic of Congo and Uganda (DRC v. Uganda).[3] The Court condemned Uganda for the unlawful use of force and for violations of IHL and human rights law. In turn, it found that the DRC had violated its obligations under the 1961 Vienna Convention on Diplomatic Relations by seizing property from the Ugandan embassy and maltreating Ugandan diplomats.

Although the judgment only concerns the dispute between the DRC and Uganda, the armed conflict in the territory of the DRC (1998-2003) was a Gordian knot of different sub-conflicts, both internal and international. In all, eight African nations were involved in the “Great War of Africa” as well as about 20 armed groups.[4] An estimated three to four million people died. Millions more fled their homes. The complexity of the conflict is illustrated by the fact that the DRC also filed applications against Burundi and Rwanda before the ICJ. Neither of these cases reached the merits stage: the former was removed from the docket at the request of the DRC; the latter case was found inadmissible due to a lack of jurisdiction.[5]

The origins of the conflict can be traced back to the ousting of the Congolese (then Zairian) President Mobute Ssese Seko by Laurent-Desiré Kabila, with the backing of Rwanda and Uganda. In the initial period following the coup, the DRC and Uganda worked closely together, inter alia in the field of counter-insurgency. However, as time went on, the DRC sought to substantially limit the influence of Uganda and Rwanda on its territory, a policy shift that led to a gradual deterioration of the relations between the countries. Following a failed coup by the Chief of Staff, a Rwandan national, President Kabila on July 28, 1998 announced in the press that all foreign troops had to leave the country. From early August onwards, Rwanda and Uganda augmented their troop presence and began to seize successive parts of Congolese territory. The situation aggravated badly as various African States sided either with the DRC or with Uganda and Rwanda. Added to this was the presence of numerous armed groups engaged in hostilities against the government and each other.

In casu, the DRC claimed that the statement of July 28, 1998 provided the direct impetus for the Ugandan invasion and alleged that Uganda had organized military and paramilitary activities against the DRC amounting to aggression. Uganda objected that its initial armed presence was based on a treaty concluded between the two countries with the aim of eliminating anti-Ugandan elements in the eastern border region. Subsequently it had been forced to act in self-defence, since the DRC was creating ties with Sudan, Chad and rebel movements fighting against Uganda. According to Uganda, troop presence had only been strengthened when it became clear that the number of Sudanese troops in the DRC was rising (para. 39). The Court deduced from these arguments that Uganda claimed that: in the period from May 1997 until September 11, 1998, the DRC had consented to the presence of its troops; in the period between September 11, 1998 and July 10, 1999 it was exercising its right to self-defence; and, that from July 10, 1999 onwards the DRC had again consented to the presence of Ugandan troops as a result of the Lusaka Agreement and subsequent agreements providing in a ceasefire and a phased withdrawal of foreign troops (para. 92).

Addressing the legality of the Ugandan intervention, the Court first looked into the issue of consent. Concerning the first period (from May 1997 until September 11, 1998) it found that President Kabila closely cooperated with Uganda and allowed it to station troops in eastern Congo in order to combat anti-Ugandan groups (para. 36). This cooperation was subsequently formalized by the Protocol on Security along the Common Border of April 27, 1998. However, as the Court rightly spelled out, the actual consent antedated the Protocol – the Protocol merely resulted in a third Ugandan battalion being installed in the DRC. Consequently, the source of this consent was not linked to the Protocol and could be withdrawn at any time irrespective of procedures for the termination of treaties. The situation changed on July 28, 1998, when President Kabila requested the removal of foreign troops. Although the Court conceded that the initial statement was ambiguous vis-à-vis the presence of Ugandan troops, subsequent statements at the Victoria Falls Summit made clear that the DRC no longer consented hereto (para. 53). Since withdrawal of consent was not subject to any formalities (para. 47), the Court concluded that the presence of Ugandan troops was no longer desired from August 8, 1998, i.e. the closing date of the Victoria Falls Summit. Concerning the period after July 10, 1999, the Court examined the roles of the Lusaka Ceasefire Agreement, the Harare and Kampala Disengagement Plans and the Luanda Agreement. These documents installed a ceasefire between the various parties to the conflict and provided for a phased withdrawal of foreign troops, including by Uganda.[6] According to the Court, none of these instruments provided for a (renewed) consent to the presence of Ugandan troops. Instead, they merely reflected the situation on the ground without addressing the legal questions involved, and only laid down a modus operandi for withdrawal (para. 99). Consequently, the Court concluded that the DRC had only consented to the presence of Ugandan troops until August 8, 1998.

The ICJ subsequently examined the submission of Uganda that it was acting in self-defence. Uganda contended that the territory of the DRC was used by its enemies, most notably Sudan and the Allied Democratic Forces (ADF), who were allegedly supplied by Sudan and the DRC. It claimed that Sudan had bombed Ugandan forces and the DRC had encouraged and facilitated attacks against Uganda. Hence, Operation Safe Haven, launched after the promulgation of the Ugandan “High Command Document” on September 11, 1998, constituted a necessary measure in response to “secure Uganda’s legitimate security interests”. The Court rejected the Ugandan arguments one by one. Thus, it found that Operation Safe Haven had already commenced in August 1998, before the issuing of the “High Command Document” (paras. 109 and 115). Secondly and more importantly, it noted that the objectives of Uganda were not consonant with the law of self-defence. Indeed, the “High Command Document” made no reference whatsoever to armed attacks that had already occurred against Uganda. The Court denounced the justification given as being “essentially preventative”, thereby implicitly rejecting the possibility of preventive self-defence (para. 143).[7] Furthermore, the Court found no proof of attacks by armed bands imputable to the DRC within the sense of Article 3(g) of the Definition of Aggression[8], which could justify the exercise of the right to self-defence (paras. 146-147).[9] In conclusion, the Court found that the intervention of Uganda was of such magnitude and duration that it should be considered to be a grave violation of the prohibition on the use of force (Article 2 para. 4 UN Charter). However, despite an explicit request by the DRC, the Court stopped short from qualifying the intervention as an act of “aggression”. This approach was criticized by some ICJ Judges[10] and inspired Judge Simma to the following reveries: “So, why not call a spade a spade? If there ever was a military activity before the Court that deserves to be qualified as an act of aggression, it is the Ugandan invasion of the DRC. Compared to its scale and impact, the military adventures the Court had to deal with in earlier cases (…) border on the insignificant.”

The second claim of the DRC concerned alleged Ugandan violations of IHL and international human rights law on Congolese territory. In this respect, the Court first examined whether Uganda could be considered an occupying power in the sense of Article 42 of the 1907 Hague Regulations. To this end, it assessed whether it could be proven that the Ugandan military forces had substituted their own authority for that of the DRC (para. 173).[11] After answering this question in the positive, the Court concluded that Uganda was responsible for violations of IHL and human rights committed by its own forces in the occupied territory. It moreover stated that Uganda bore responsibility for violations by other armed groups if it had failed to abide by its duty of vigilance as an occupying power. In a second stage the Court scrutinized whether Uganda was bound by various humanitarian law and human rights instruments, whether violations had taken place, and whether they were attributable to Uganda (paras. 205-221), thereby concluding that Uganda had indeed violated several provisions of IHL and human rights law.

In a third submission, the DRC claimed that Uganda had illegally exploited its natural resources in violation of IHL and the principle of permanent sovereignty over natural resources. Uganda objected that the alleged facts were not proven and were in any case not imputable to Uganda. Whereas the Court held that the principle of permanent sovereignty was not applicable to occupied territory (para. 244), it nonetheless determined that Uganda had breached the prohibition of pillage, laid down in Article 47 of the Hague Regulations and Article 33 of the Fourth Geneva Convention (para. 250).

The last submission of the DRC concerned alleged violations of the ICJ Order of Provisional Measures of July 1, 2000.[12] Although the Court noted that the DRC had not provided any proof to support its claim, it nevertheless found Uganda in breach of the Order since the conduct for which is was held responsible in the earlier part of the judgment went against the provisions of the Order (para. 262-265).

A final issue concerned the counterclaims of Uganda. Firstly, Uganda argued that the DRC itself had committed acts of aggression on the grounds that Uganda had, since 1994, been the victim of military operations carried out by hostile armed groups based in the DRC and supported or tolerated by successive Congolese governments (para. 276). The Court however ruled that there was insufficient evidence that the DRC (then Zaire) was involved in anti-Ugandan armed activities; that neither Uganda nor Zaire were in the position to effectively combat those rebel groups, and, that at the end of the period under revision the DRC was entitled to support such groups since it was exercising its right to self-defense (paras. 298, 301 and 304). Secondly, Uganda claimed that Congolese armed forces had carried out attacks on the Ugandan embassy in Kinshasa, confiscated Ugandan property and maltreated diplomats and other Ugandan nationals present on the premises of the mission and at the airport. The DRC challenged the admissibility of the second counter-claim, but was only partially successful. On the one hand, the Court found the claim of alleged mistreatment at the airport of Ugandan nationals, not enjoying diplomatic status, to be inadmissible because of a lack of exhaustion of local remedies, a necessary condition for the exercise of diplomatic protection. On the other hand, it ruled that there was sufficient evidence to prove that the DRC had violated the embassy and had maltreated Ugandan diplomats as well as other Ugandan nationals present on the embassy premises in contravention of the 1961 Vienna Convention on Diplomatic Relations (para. 333).

Let us now have closer look at the Court’s findings relating to occupation.