The Democratic

Republic of the
Congo vs Uganda
ICGJ 31 (ICJ
2005)

Submitted to:-
Dr.Ajaymeet Sir

Submitted by:11605106
R.no-55
Section-L1601
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The Democratic Republic of the Congo v Uganda

ICGJ 31 (ICJ 2005)

Background to the case

The Democratic Republic of Congo (DRC) asked the Court to decide that, starting from 02
August 1998, Uganda had engaged in “armed aggression” in the DRC. It argued 1) that Uganda
(a) engaged in military and paramilitary activities against the DRC, (b) occupied DRC territory,
and (c) provided military, logistic, financial and economic support to armed groups in the DRC
who operated against the government; 2) that Uganda committed and failed to prevent violations
of human rights and humanitarian law; and 3) that Uganda engaged in and failed to prevent the
illegal exploitation of Congolese natural resources. The DRC sought as remedies, for example,
the cessation of internationally wrongful acts, reparation, and guarantees of non-repetition.

Facts of the Case

In 1997, President Kabila came into power in the DRC, with the help of Uganda and Rwanda.
Initially, Ugandan and Rwandan forces were present in the DRC following DRC’s invitation and
consent.
Then, the DRC’s relations with Uganda and Rwanda deteriorated, and on 28 July 1998, President
Kabila announced the withdrawal of the DRC’s consent to Rwandan military presence in the
DRC.
On 8 August 1998, Kabila accused both Ugandan and Rwandan forces of invading the DRC. In
June 2003, Ugandan forces completely withdrew from the DRC. DRC argued that Uganda
occupied DRC territory,
while Uganda argued its presence in the DRC was justified:1) until 11 September 1998, based on
DRC’s invitation; 2) from 11 September 1998 until 10 July 1999, based on self-defense; and,
3) from July 1999 until June 2003, based on DRC’s consent.

Law involed
CRC Provisions:
Article 19: Protection from abuse and neglect
Article 38: Armed conflicts
Optional Protocol on the Involvement of Children in Armed Conflict
Other International Provisions:
Hague Convention respecting the Laws and Customs of War on Land, Articles 25, 26, 28, 43, 46,
47
Geneva Conventions: Protection of civilians in times of war (Fourth Convention, Articles 27, 32,
53; First Protocol, Articles 48, 51, 52, 57, 58, 75)
International Covenant on Civil and Political Rights, Article 6: Right to life
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African Charter on Human and Peoples’ Rights, Article 4: Right to life, Article 5: Protection
against exploitation

Questions before the Court

1. Was Uganda an occupying power in the DRC?

2. What activities of the Ugandan forces did the DRC consent to?
3. When did the DRC withdraw consent?
4. Did Uganda have a right of self-defense against the DRC?
5. Did Uganda violate principles prohibiting intervention and use of force though its
occupation?

Summary of relevant findings of the Court

Uganda argued that its military presence and activities in the DRC were, for most part,
based on an invitation by the DRC and was authorized by/ consented to by the DRC. The
Court held that consent provided by one State to another is limited both in duration (i.e.
until the consent is withdrawn) and scope (i.e. to rely on consent, foreign forces must act
within the limits specified in the invitation). The Court concluded that DRC’s consent
was certainly withdrawn by 8 August 1998 and, irrespective of withdrawal, some
Ugandan military activities fell outside the scope of authorization provided by the DRC.
These actions can be justified, if at all, by self-defense. The Court also concluded that
Uganda had occupied the Ituri Province and, in Ituri, it failed to take measures to respect
and ensure respect for IHRL and IHL.

Relevant Findings of the Court

Issues relating to consent
1. When did the DRC withdraw consent?
Prior to August 1998 the DRC did not object to Ugandan military presence and activities in its
eastern border. Parties disagreed as to when consent was withdrawn.
1. For the DRC: Consent withdrawn on 28 June 1998, when the DRC issued a statement
terminating “…with effect from this Monday 27 July 1998, the Rwandan military
presence… This marks the end of the presence of all foreign military forces in the
Congo.” The DRC argued that even if Uganda was not mentioned by name, the final
phrase meant that consent was withdrawn for Ugandan troops.
2. For Uganda: Consent was not withdrawn on 27 June 1998 because: 1) the DRC statement
only referred to Rwanda; and 2) any withdrawal of consent required a formal
denunciation of the 1998 Security Protocol. In the 1998 Security Protocol, the DRC and
Uganda agreed to co-operate to ensure security and peace along the common border.
3. The ICJ could not conclude if the 28 July 1998 statement withdrew consent also for
Ugandan presence in the DRC (the statement mentions only Rwandan troops).
4. The Security Protocol had not provided the legal basis (authorization/ consent) for the
presence of Ugandan troops, but reaffirmed authorization/ consent. The source of
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authorization/consent antedated the Protocol. Thus, the withdrawal of consent did not
require a formal denunciation of the 1998 Security Protocol
5. Thus, the DRC could withdraw its consent at any time, without any formalities being
necessary.
The Court concluded that prior to August 1998 the DRC did not object to Ugandan military
presence and activities in its eastern border and had, sometimes, provided specific authorization
for the movement of troops into the DRC.

However, consent was certainly withdrawn by 8 August 1998 when Kabila accused
Uganda of invading the DRC.

Uganda argued that between 1999 to 2003, the DRC, once again, consented to Ugandan
presence. The ICJ held that the four agreements in 1999 and 2000 relied on by Uganda
did not alter the legal status of its presence. These agreements stipulated arrangements
made to progress towards withdrawal of foreign troops. In accepting these modalities, the
DRC neither consented to troop presence nor recognized “…the situation on the ground
as legal” either before the agreement or in the period that would pass until the fulfilment
of its terms. This status was not changed even when another agreement authorized the
temporary presence of Uganda troops in the border region of Ruwenzori Mountains in the
DRC, until appropriate security mechanisms had been put in place. The ICJ held
that “this reflects the acknowledgment by both Parties of Uganda’s security needs in the
area, without pronouncing upon the legality of prior Ugandan military actions there or
elsewhere.”

2. What activities of the Ugandan forces did the DRC consent to?

The ICJ held that the consent/ authorization provided by the DRC was not an “open-ended
consent” and was restricted in terms of “geographic location and objectives.” Initially, the DRC
had accepted that Uganda could act, or assist in acting against the rebels in the eastern border and
to prevent them from acting across the common border. Thus, Ugandan military operations 1)
against rebels and 2) in eastern border towns were covered under the invitation. However, the
nature and extent of those Ugandan military operations in August 1998, in the three border towns
that resulted in Uganda taking control of these towns and their airports (paragraph 110) were
“quite outside any mutual understanding between the Parties as to Uganda’s presence on
Congolese territory.

Thus, even if the DRC had not withdrawn consent, these activities will fall outside the
authorization provided by the DRC

The ICJ held that these military operations, which occurred in August 1998, were not covered by
consent and violated principles relating to the use of force. These operations could only be
justified as self-defense. Yet, Uganda had not relied on self-defense to justify its activities in
August
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For the situation to be qualified as an occupation, the mere use of force in one country by a
foreign force is not sufficient. Other conditions, such as a substitution of authority, as elaborated
below, must be met.

3. Did Uganda have a right of self-defense against the DRC?

1. The ICJ had to determine if Ugandan military operations in August 1998 and those from 11
September 1998 to 10 July 1999 could be justified on the basis of self-defense. It concluded in
the negative, and held that Ugandan military operations since August 7, 1998, lacked the
required consent and amounted to an illegal use of force in DRC territory, which conversely gave
DRC the right of self-defence against Uganda.

2. The ICJ held that for a State to rely on self-defense, it must meet with the conditions laid
down in Article 51 of the UN Charter. Uganda did not meet those requirements because:

1. Uganda did not demonstrate that it had been subjected to an armed attack by the DRC. It
had attributed armed attacks by the ADF (a non-State armed group) to the DRC. The
Court concluded that there was no satisfactory proof of the involvement in these attacks,
direct or indirect, of the DRC.
2. Uganda justified its operations on the basis of “security needs that are essentially
preventative” The ICJ held that Article 51 did not permit States to use force to protect
“perceived security interests” beyond the parameters explicitly provided. In the former
circumstances “other means are available to a concerned State, including, in particular,
recourse to the Security Council.”
3. Uganda did not report to the Security Council events that it had regarded as requiring it to
act in self-defense (see Article 51 of the UN Charter).

In the Nicaragua case, the ICJ held that “the absence of a report (to the Security Council)
may be one of the factors indicating whether the State in question was itself convinced that it was
acting in self-defence” (see our blog post on the Nicaragua case). This DRC v Uganda case
should be distinguished from the Nicaragua case, because in the latter, due to jurisdictional
issues, the Court could only rely on components of Article 51 that reflected customary law.

Because Uganda relied only on the right of self-defense in the case of an armed attack which
has already occurred, the ICJ declined to elaborate further on the issue of the lawfulness of a
response to an anticipated armed attack.

The ICJ also declined to comment on whether and under what conditions contemporary
international law provides for a right of self-defense against large-scale attacks by irregular
forces. The ICJ, nevertheless, observed that “…the taking of airports and towns many hundreds
of kilometers from Uganda’s border would not seem proportionate to the series of trans-border
attacks it claimed had given rise to the right of self-defense, nor to be necessary to that end.
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Decision of ICJ

In view of the foregoing, the Court finds that the acts committed by the UPDF and officers and
soldiers of the UPDF (see paragraphs 206–211 above) are in clear violation of the obligations
under the Hague Regulations of 1907, Articles 25, 27 and 28, as well as Articles 43, 46 and 47
with regard to obligations of an occupying Power. These obligations are binding on the Parties as
customary international law. Uganda also violated the following provisions of the international
humanitarian law and international human rights law instruments, to which both Uganda and the
DRC are parties:
— Fourth Geneva Convention, Articles 27 and 32 as well as Article 53 with regard to obligations
of an occupying Power;
— International Covenant on Civil and Political Rights, Articles 6, paragraph 1, and 7;
— First Protocol Additional to the Geneva Conventions of 12 August 1949, Articles 48, 51, 52,
57, 58 and 75,
paragraphs 1 and 2;
— African Charter on Human and Peoples' Rights, Articles 4 and 5;
— Convention on the Rights of the Child, Article 38, paragraphs 2 and 3;
— Optional Protocol to the Convention on the Rights of the Child, Articles 1, 2, 3, paragraph 3,
4, 5 and 6.
220. The Court thus concludes that Uganda is internationally responsible for violations of
international human rights law and international humanitarian law committed by the UPDF and
by its members in the territory of the DRC and for failing to comply with its obligations as an
occupying Power in Ituri in respect of violations of international human rights law and
international humanitarian law in the occupied territory.
221. The Court finally would point out that, while it has pronounced on the violations of
international human rights law and international humanitarian law committed by Ugandan
military forces on the territory of the DRC, it nonetheless observes that the actions of the various
parties in the complex conflict in the DRC have contributed to the immense suffering faced by
the Congolese population. The Court is painfully aware that many atrocities have been
committed in the course of the conflict. It is incumbent on all those involved in the conflict to
support the peace process in the DRC and other peace processes in the Great Lakes area, in order
to ensure respect for human rights in the region.
Declaration of Judge Koroma
Not only are the international Conventions violated by Uganda binding on it, but they are
intended to uphold the rule of law between neighboring States and constitute the foundation on
which the existing international legal order is constructed. They oblige States to conduct their
relations in accordance with civilized behavior and modern values — to refrain from the use of
military force, to respect territorial integrity, to solve international disputes by peaceful means,
and to respect human rights, human dignity, and international humanitarian law. Under the
international humanitarian law and international human rights instruments mentioned above,
Uganda was obliged to refrain from carrying out attacks against civilians, to ensure humane
treatment of them and even of combatants caught up in military conflict, and to respect the most
basic of their rights, the right to life…
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In other words, in the course of a military conflict, civilians should be spared unnecessary
violence, including massacres and other atrocities such as those allegedly perpetrated by the
UPDF. Furthermore, according to Article 3 of the 1989 Convention on the Rights of the Child, to
which Uganda is also a party, in all actions concerning children, the primary consideration must
be the best interests of the child. Article 19 provides that States parties agree to take all
appropriate measures to protect the child from all forms of physical and mental violence, while
Article 38 of the Convention provides that States parties undertake to respect and to ensure
respect for the rules of international humanitarian law applicable to them in armed conflicts
which are relevant to the child. States parties to the Convention must take all feasible measures
to ensure that persons who have not attained the age of 15 years do not take part in direct
hostilities. Yet, according to the evidence before the Court, these obligations were wantonly
flouted during the UPDF's military campaign in the Congo, as children were recruited as child
soldiers to take part in the fighting.

CASE SUMMARY
 DRC was involved in a civil war.
Uganda, Rwanda, and other countries were all helping various rebel groups that were fighting to
overthrow the government of the DRC.
In addition, various other rebel groups were hiding in the DRC, launching attacks at the
governments of Uganda
DRC brought a case to the International Court of Justice, claiming that Uganda were involving
themselves an internal DRC conflict.
Uganda argued that they were only protecting themselves from anti-Uganda rebel groups that
were being given safe harbor in the DRC.
That would count as self-defense under Article 51 of the United Nations Charter.

 The ICJ found for the DRC.

The ICJ looked to their previous decision in Nicaragua v. United States (1986 I.C.J. 14 (June
27)), where they considered the legality of a third-party country intervening in an internal
conflict.
The ICJ found that Uganda did not have the consent of DRC to enter. Therefore it was a grave
violation of Article 2(4) of the United Nations Charter.
There was no defense of Article 51, because no one in DRC had performed an armed
attack against Uganda.
Technically, armed Ugandan rebel groups were launching attacks against Uganda from DRC
territory, but that wasn't being controlled by the DRC, and the DRC didn't have the capability to
stop them.
Can rebel attacks being launched from a failed-state's territory constitute an armed attack to
trigger Article 51?

The Court carefully examined the various treaties directed to achieving and maintaining a
ceasefire, the withdrawal of foreign forces and the stabilization of relations between the DRC
and Uganda. It concluded that none of those instruments constituted consent by the DRC to the
presence of Ugandan troops on its territory (save for the limited exception regarding the border
region of the Ruwenzori Mountains contained in the Luanda Agreement). The Court also
rejected Uganda’s claim that its use of force, where not covered by consent, was an exercise of
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self-defence, finding that the preconditions for self-defence did not exist. Indeed, the unlawful
military intervention by Uganda was of such magnitude and duration that the Court considered it
to be a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4,
of the United Nations Charter.
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References
Websites
1. https://www.asil.org/insights/volume/10/issue/1/case-concerning-armed-
activities-territory-congo-icj-finds-uganda-acted
2. https://www.icj-cij.org/files/case-related/116/116-20051219-JUD-01-00-
EN.pdf
3. https://ruwanthikagunaratne.wordpress.com/tag/drc-vs-uganda-summary/
4. https://www.icj-cij.org/en/court

Books
1. INTERNATIONAL LAW AND HUMAN RIGHTS Paperback – 2016
By Dr. S.K. KAPOOR

2. Central Law Agency's International Law & Human Rights by Dr. A.V
Aggarwal.

3. An Introduction to Public International Law 2nd Edition (English,

Paperback, S. K. Verma.

Other References:-

1. Hague Convention respecting the Laws and Customs of War on Land, Articles 25, 26, 28,
43, 46, 47
2. Geneva Conventions: Protection of civilians in times of war (Fourth Convention, Articles
27, 32, 53; First Protocol, Articles 48, 51, 52, 57, 58, 75)
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