ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO: THE ICJ JUDGMENT IN THE CONTEXT OF THE CURRENT PEACE PROCESS IN THE GREAT LAKES REGION
A summary of a meeting of the International Law Discussion Group at Chatham House on 27th January 2006; participants included lawyers, regional experts, academics and representatives of NGOs and of UK GovernmentDepartments.
This summary is issued on the understanding that if any extract is used, Chatham House should be credited, preferably with the date of the meeting.
Dr. Chaloka Beyani of the London School of Economics discussed the judgment of the International Court of Justice (ICJ) of 19 December 2005, the peace process in the region and the likely effects of the judgment on the peace process.
The background to the case
The background to the ICJ case goes back to the fall of President Habyarimana‘s Government in Rwanda, and the resulting situation in Rwanda and its consequences for the region. The DRC failed to deter incursions by the Interahamwe militia from its territory into that of Rwanda. In addition, Congolese armed forces had attacked local Tutsis (Banyamulenge) in Eastern DRC, an event which prompted Rwanda and Uganda to give support to the rebel groups in the DRC in their fight against former President Mobutu, as a way of neutralizing armed activities by the interahamwe and other armed forces. When Mobutu fled, President Joseph Kabila assumed power in DRC with the support of Rwanda and Uganda. However, tensions arose between Kabila and his former allies, with Kabila calling for the withdrawal of foreign troops; thereafter he was killed.
The ICJ judgment in the case of armed activities on the territory of the Congo (Democratic Republic of the Congo (DRC) v. Uganda), 19 December 2005
The ICJ found that Uganda had breached several of its obligations under international law and that the DRC had violated the Vienna Convention on Diplomatic Relations.
First, the Courtstated that the principles of non-use of force in international relations and of non-intervention were violated by Uganda, because of its occupation of Ituri (which is an area the size of Germany) and its actively extending military, logistic, economic and financial support to irregular forces having operated on the territory of the DRC. This is an important finding of the Court because it is the first time an African country has been held responsible for violating the principles of non-use of force and of non-intervention because of its support to armed groups. This will be of importance in the peace process in the region.
Second, the Court decided that numerous obligations under international humanitarian law and human rights law had been breached by Uganda. The Court condemned the conduct of Uganda’s armed forces which committed acts of torture and other forms of inhuman treatment of the Congolese civilian population, failed to distinguish between civilian and military targets, trained child soldiers and incited ethnic conflict and also the failure of Uganda, as an occupying Power, to take measures to respect and ensure respect for human rights and international humanitarian law in Ituri.
Uganda’s claim that it acted in self-defence was not accepted. First of all, the Court considered that there was no proof justifying the claim. It went on to say that Uganda did not report its action in purported self-defence to the Security Council and that it had never claimed to have been the victim of an armed attack by the DRC, but rather by armed groups operating in the DRC. On this issue, Judge Simma expressed his disappointment that the ICJ failed to deal with the issue of self-defence against attacks by armed groups, rather than by States. (The speaker remarked that for cases involving the use of force, the ICJ tended to use the Nicaragua case as a precedent. This may be an impediment to the flexibility of jurisprudence.)
Thirdly, although the ICJ found that there was no policy of looting in the Ugandan armed forces, Uganda was held responsible for the illegal exploitation of Congolese natural resources, because of its failure to prevent acts of looting, plundering and exploitation by its armed forces and by armed groups in the region. As an occupying Power it had the responsibility to prevent these groups from looting. This finding is important for the peace process, because Uganda will no longer be able to claim that its exploitation of Congolese natural resources was not illegal.
Finally, as regards Uganda’s counterclaim relating to the maltreatment by the DRC of diplomats and foreign nationals at Ndjili International Airport on 20 August 1998, the Court upheld the claim with regard to the diplomats but found that Uganda could invoke a breach of the Vienna Convention on Diplomatic Relations only for the diplomats. For other nationals it would have to rely on diplomatic protection, but because it had not been proven that those who were maltreated had Ugandan nationality, this claim was denied.
The Court found that the DRC had violated obligations owed to the Republic of Uganda under the Vienna Convention on Diplomatic Relations of 1961. First, armed forces of the DRC attacked the Ugandan Embassy in Kinshasa, maltreated Ugandan diplomats and other individuals on the Embassy premises as well as Ugandan diplomats at Ndjili International Airport. Second, the DRC failed to provide the Ugandan Embassy and Ugandan diplomats with effective protection and Ugandan property from being seized from the Embassy.
Reparations have to be made for all damages caused by these violations of international law. Since the ICJ has not made a specific award of reparations this may prove to be an obstacle in negotiations between Uganda and the DRC.
The peace process in the Great Lakes Region The peace process in the Great Lakes region started with the Victoria Falls Summit and the Lusaka Ceasefire Agreements.
The International Conference for the Great Lakes Region
An International Conference on Peace, Security, Democracy and Development in the Great Lakes Region, with 15 Member States, has been established. There is also a supportive group of Friends for the Great Lakes Region, co-chaired by Canada and the Netherlands, to provide political, diplomatic, technical and financial assistance to the process.
At the end of 2004 the first Summit of Heads of State and Government of the International Conference was concluded with the adoption of the Dar es Salaam Declaration on Peace, Security, Democracy and Development in the Great Lakes region, which entered into force upon signature.
The 2004 Dar es Salaam Declaration of the International Conference
The process under the Declaration consists of four clusters and is accompanied by draft protocols and projects, which elaborate on the undertakings of the parties. The first and major cluster under the Declaration is concerned with peace and security. In this part of the Declaration the Parties commit themselves to fully support the national peace processes, to strengthen bilateral and regional cooperation, to ensure security at common borders within the context of trans -border proximity management strategies in consultation with local populations and to work for the disarmament of armed groups. The protocols that are currently being prepared by the Parties to supplement this cluster deal with non-aggression, mutual self-defense and peaceful resolution of conflicts.
The second cluster under the Declaration is about democracy and good governance. It embodies the commitments of the Parties to good governance standards, democracy, human rights as well as their desire to prevent genocide. Democracy is seen as an important part of the peace process, as it will enable previously armed groups to participate in a democratic way. Protocols on democracy, good governance and genocide are being drafted.
The third part of the Declaration deals with economic development and reconstruction. A protocol on the illegal exploitation of natural resources is currently being negotiated, but the issue is still highly controversial. Besides that, there are projects on infrastructure.
The fourth cluster, on social and humanitarian issues, is concerned with the social consequences of armed conflicts in the region. A major concern of the cluster is to ensure that Member States comply with their obligations with respect to human rights and international humanitarian law and the rights of refugees. Protocols on prevention and suppression of sexual violence against women and children (criminal responsibility for sexual violence, genocide, war crimes and crimes against humanity), the protection of internally displaced persons, and the property rights of returning populations will supplement this fourth cluster. Moreover there are projects on compliance with international human rights instruments and adherence to international humanitarian law on the one hand and the issue of stateless persons, refugees and internally displaced persons on the other hand.
Finally, the declaration provides for the establishment of a zone for peace, economic development and reconstruction, in which all use of force is to be outlawed.
Structure of the International Conference
The Conference consists of different organs, which negotiate at different levels. First, there are the national experts. Then there are regional preparatory committees, composed of the ambassadors of the different countries involved. On a regional level, meetings are convened by the regional coordinators. On a higher level there is the inter-ministerial group and at the top of the conference there is the summit of Heads of States, the second one of which will probably take place in June 2006, although it may be postponed because of this year’s elections in the DRC.
Comprehensive nature of the peace process
Unlike most peace processes, which are bilateral and ad hoc, the peace process in the Great Lakes region is of a far more comprehensive nature. An International Conference and a Group of Friends for the Great Lakes are already working on the implementation of the peace process, and it is intended to establish a long-term Secretariat and Centre for Democracy and Human Rights. Besides that, meetings with regional parliamentarians and the private sector have been organized as an integral part of the peace process.
Because of the armed forces in the DRC not yet being integrated and several Ministers of the DRC being affiliated to different groups, peace negotiations may become polarized.
Another complication for the peace process is that the countries in the region have different legal backgrounds. It means an understanding is needed between common law and civil law systems, which is sometimes further complicated because of differences between the authentic French and English versions of legal texts.
Reactions of Uganda and the DRC to the ICJ judgment In spite of one or two statements to the contrary, Uganda officially accepts the judgment and is willing to start negotiations on reparations with the DRC. The DRC considers the judgment a vindication rather than a triumph; a confirmation that it had always been right to claim grave violations of international law by Uganda.
The DRC asked for 10 to 15 billion dollars of damages, which is excessive according to Uganda. The negotiations on reparation have not started yet and both States would probably rather wait until after the elections. If they fail to reach an agreement, the amount of reparation will be determined by the court.
A participant made the remark that the Ugandan Government publicly rejected the decision of the court in the beginning of January, saying the judges were biased and the judgment was full of lies and that they would not pay reparation to the DRC. He added that implementation of the judgment was not a priority for the DRC either, because of the election that will soon take place there. According to him the impact of the judgment on the peace process in the region should therefore not be overestimated.
The speaker’s response to this was that we should focus on Uganda’s official message, which calmly and briefly accepted the judgment. Subsequent more nationalist statements can most likely be attributed to ‘election fever’ because of the elections that will soon take place in Uganda. If, nevertheless negotiations falter on the issue of reparations, it is likely that the DRC will bring the case back to the ICJ.
Importance of the ICJ decision for the peace process It is important to note that a comprehensive settlement is needed and that the ICJ can only deal with legal issues, as it emphasized itself in the judgment. The ICJ decision cannot be separated from the broader process which it is part of, but it may be an incentive for, regional agreements between the parties.
This decision clearly establishes the responsibility of Uganda in the conflict in the DRC This may l make the DRC feel more confident in the negotiations. The conflict will no longer be seen as an internal conflict in the DRC and the forces standing behind the armed groups will have to be involved in the peace negotiations. The immediate impact of the judgment on the ground is not clear, but at least the different parties in the conflict are negotiating a solution now.
Equally important is that the ICJ decision restores the principle of legality. It reinforces the principles of the prohibition of use of force and of non-intervention, as well as international humanitarian law and human rights law. The ICJ clearly condemns the support of States to armed groups in fighting another State.
One of the participants asked whether concerns existed about a negative influence of the judgment on the peace process (as with the Advisory Opinion of the ICJ on the construction of the Wall by Israel) or whether both would be complementary. The speaker agreed that there had been concerns about a possible detrimental effect of the decision on the peace process, but emphasized that Uganda had accepted the decision and that both people and politicians in the region wanted peace to be established.
Another participant questioned the timing of ICJ judgments because this one is delivered during election time which is a fragile moment. The speaker responded that the ICJ does not take external elements into account in timing its judgments. However, to a certain extent the parties in a case can influence the timing of the judgment.
Discussion One of the participants was concerned with the problem of looting in the DRC. He cited the Arabic saying “Abandoned treasures teach looting” and referred to the immense wealth and the poverty of its neighboring states. The speaker replied that economic problems in neighboring countries are indeed likely to create problems, but that there is also a problem of looting within the DRC itself, both by national corporations and by its leaders (for decades). As regards the first problem, he added that a monitoring system may help prevent looting, if such a system will be provided for. As regards domestic looting, part of the problem is the lack of an equitable system for the distribution of resources. He suggested that a less centralized system may be of some help and will probably be considered after the elections. He added that the Congo always relies on the principle of permanent sovereignty over its natural resources.
There was a discussion as to whether the ICJ was the appropriate forum to deal with these kinds of issues. But there is no other viable forum for such disputes, and countries do choose to go to the ICJ. This judgment and the law cited in it may have implications in other situations related to the use of force; ICJ cases are sometimes being cited in domestic courts as well.
According to one of the participants the court had become stronger and stronger and was not afraid to deliver a judgment even when the parties may not accept it. On the other hand, for the parties a peace process as a whole is more important than an ICJ judgment as such. It sometimes happens that conflicting parties take a case to court, ignore the judgment and find a solution to their dispute themselves. The judgment is part of the process rather than the solution.