By Janet Sankale
The judges of the highest court in the world have started deliberating whether Uganda should pay over $11.4 billion in reparations for armed activities in the Democratic Republic of the Congo after public hearings in the case were concluded last month.
Both parties were given the opportunity to present their arguments in the latest part of the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) before the United Nations’ International Court of Justice (ICJ), which has been going on for almost 22 years.
The public hearings started on 20th April 2021 at the Peace Palace in The Hague and were concluded 10 days later. The proceedings started with the first round of oral arguments by the Democratic Republic of the Congo (DRC) and Uganda, followed by questions for the court-appointed experts. Both parties participated in the second round of oral arguments and concluded with submissions by their respective agents.
The long-running case started on 23rd June 1999, when the Democratic Republic of the Congo instituted proceedings against Burundi, Uganda, and Rwanda “for acts of armed aggression committed in flagrant breach of the United Nations Charter and the Charter of the Organisation of African Unity (OAU) [the predecessor of today’s African Union]”. The DRC sought reparation for acts of intentional destruction and looting and the restitution of national property and resources appropriated for the benefit of the respective respondent states. However, the government of the DRC discontinued proceedings against Burundi and Rwanda in January 2001.
In 2005, the ICJ ruled that Uganda was under obligation to make reparations to the DRC for violating international law by occupying parts of Ituri and supporting other armed militia groups in the area during the conflict that lasted between 1998 and 2003. Uganda was found guilty of violating the principles of non-use of force in international relations and non-intervention; its obligations under international human rights law and international humanitarian law; and other obligations owed to the Democratic Republic of the Congo.
The court also ruled that DRC was under obligation to make reparations to Uganda for the damage it caused on the country’s embassy in Kinshasa, a violation of the 1961 Vienna Convention on diplomatic relations. This constituted acts of aggression against Uganda; and attacks on Ugandan diplomatic premises and personnel in Kinshasa, and on Ugandan nationals. The court further ordered that the two countries negotiate mutual reparations.
On 8th September 2007, the two parties established a committee to resolve the claims, and in May 2010, the DRC presented a compensation claim, demanding more than $23.5 billion, almost as much as Uganda’s gross domestic product.
Uganda considered this amount excessive and proposed a meeting in September 2012. It asked the DRC to present a more realistic figure and also produce respective proofs, as underlined in the ICJ’s judgment of 2005. Uganda explained the evidentiary and methodological shortcomings of the claim and suggested that both parties agree on the criteria to be used as a basis for compensation to DRC. It complained that the DRC’s unbending demands were both unfounded and excessive. However, DRC dismissed Uganda’s position as “technical” and objected to using any criteria to assess its claim.
Both parties tried to negotiate, meeting not less than nine times since 2010. The result was that the DRC reduced its demand from roughly $23.5 billion to almost $13.5 billion. However, in 2015, the DRC returned to the ICJ, claiming that the negotiations were not progressing.
The court is expected to rule on whether the reparations demanded should be paid. The court’s judgment will be delivered at a public sitting on a date to be announced at the appropriate time. Observers have noted that although the court has a responsibility to set a principled, clear, understandable, and reasonable basis for assessing the repair due, this will be a tricky case. If the court rules in favour of the DRC, the question arises whether Uganda will be able to pay the amount claimed. On the other hand, if the court sides with Uganda, it will be seen as minimising the harm suffered by the DRC and its people, property, and resources.
The conflict in DRC, which spawned the case with Uganda, is probably one of the world’s most obscure, and at the same time one of the deadliest since World War Two. The fighting that lasted between 1998 and 2003 has been described as “Africa’s World War”. Some sources have estimated that the war and its aftermath of disease and starvation has caused the death of 5.4 million people and displacement of millions of others in 10 years since it started. It involved nine countries (Angola, Chad, Libya, Namibia, Zimbabwe, Sudan, Uganda, Rwanda, and Burundi) fighting one another on Congolese soil. Several million women and girls were raped.
The war broke out a little over a year after Laurent-Désiré Kabila, with the aid of foreign governments and groups, ejected long-serving president Mobutu Sese Seko from power in 1997. His relationship with previous allies, including Rwanda and Uganda, deteriorated and in July 1998, he ordered all foreign officials and troops to leave the country. Instead, his former allies started supporting rebels under the auspices of the Congolese Rally for Democracy (RDC) to try to overthrow him. He was kept in power by new allies Angola, Zimbabwe, and Namibia, whose troops repelled the rapidly advancing rebel forces. By February 1999, the new rebel group Movement for the Liberation of the Congo (MLC), backed by Uganda, RDC, and Rwandan troops, controlled much of eastern Congo as they continued fighting government, Angolan, Namibian, and Zimbabwean soldiers. The rebels secured major towns, ports, airfields, and mines. Supply of basic necessities to the general population was largely cut off; and agriculture, healthcare, and other public services collapsed. The conflict perpetuated conditions favourable to the exploitation of DRC’s resources by parties to the conflict (as well as individuals representing these parties) and opportunistic corporations and individuals. In January 2001, Laurent Kabila was assassinated and his son, Joseph Kabila, replaced him and began negotiations to end the war. On July 18, 2003, the Rwandan, Angolan, Namibian, Ugandan, and Zimbabwean troops withdrew from the Congo.
In his arguments during the public hearings, Paul-Crispin Kakhozi Bin-Bulongo, the agent for the Democratic Republic of the Congo, told the court that his country’s claims were sufficiently established both in fact and in law. He stated that the DRC had demonstrated what form of reparation was applicable to comply with the court’s order.
He said the DRC had assessed as precisely as possible the extent of the damage suffered and the amount of reparation due, in compliance with the applicable rules set by the court, while exercising moderation in the amounts claimed. He explained that the DRC had taken into consideration all the arguments exchanged during the proceedings as well as the points of view of the court-appointed experts, and that this had led to adjustments and reductions in the sums finally claimed.
The DRC emphasised that the fact that the two parties were before the International Court of Justice did not mean they were enemies, but that they had approached the court with the hope of seeing their dispute settled by “peaceful and friendly means in the spirit of sincere reconciliation”. However, the DRC stated that justice must be rendered for a harmonious future between the two countries through full reparation and compensation for the wrongs suffered.
“Responsibility is the necessary corollary of the law and without effective responsibility, it’s the very credibility of the international law that would be threatened,” Bin-Bulongo told the court.
The DRC requested the court to adjudge and declare that Uganda pay mass compensation for damage resulting from violations of international law determined by the court in its judgment of 19th December 2005, a total of not less than $4,350,421,800 for injuries to individuals, $239,971,970 for property damage, $1,043,563,809 for damage to natural resources, and $5,740,000,775 for macroeconomic damage.
Second, the country asked for compensatory interest for the claim on items other than those awarded by the court, based on evaluation, taking into account the passage of time, at a rate of 4 per cent payable from the date of filing the reparation memorial.
DRC also asked that Uganda be required to pay $25 million to create a fund destined to reconcile the Hema and the Lendu people in Ituri and $100 million for reparations for intangible damages suffered by the Congolese state on account of those violations of international law. Finally, the DRC wanted Uganda to be required to investigate and institute criminal prosecution against the individuals involved in the violation of international humanitarian law and international human rights law committed on Congolese territory between 1998 and 2003, of which Uganda had been found responsible.
In case of non-payment of the compensation awarded by the court, the Congolese agent asked that default interest accrue on the principal sum at a rate of 6 per cent. It also wanted Uganda to indemnify the DRC for all its legal costs for the proceedings.
In regard to Uganda’s counterclaim, DRC cited the court’s finding in its judgment of 19th December 2005 on the international responsibility of the Congo and acknowledged that it constituted an appropriate form of reparation for the damage resulting from the wrongful acts determined. It noted that Uganda was entitled to compensation amounting to $982,797,073 to be paid by DRC for the harm resulting from the invasion, seizure, and sustained occupation of its chancellery buildings in Kinshasa. DRC further stated that the amount awarded to Uganda would be offset against the compensation expected from its main claim.
The DRC also requested the court to declare that the dispute would not be fully settled until Uganda had paid the reparations and compensations determined by the court.
William Byaruhanga, Uganda’s agent, told the court that his country deeply and sincerely regretted the harm suffered by the Congolese people and accepted the court’s judgment. It recognised its responsibility as determined in the judgment, noted that it was legally binding, and did not dispute the court’s finding.
However, Uganda submitted that it did not bear sole responsibility for the damages suffered by the Congolese people. It pointed out that there was concurrence of different conflicts involving at least 21 irregular armed forces and the armies of at least nine other states, including the DRC itself, which committed atrocities during that period. In contrast to other states, Uganda added, it had accepted the court’s jurisdiction and had actively participated in the proceedings.
Uganda noted that it had also actively participated in bilateral negotiations with the DRC in the hope of reaching an amicable solution driven by good faith, but that all this seemed void due to the refusal of the Congolese side to accept its proposals. Uganda told the court that although it believed in international justice, “justice must be based on legal principles, facts, rules and standards”. It accused the DRC of not fulfilling the obligations on well-established evidence and causality.
Uganda said that in a further demonstration of good faith, it had agreed to waive its counterclaim for reparation for injury caused by the conduct of the DRC armed forces, including attacks on its diplomatic premises in Kinshasa and the maltreatment of its diplomats.
Uganda requested the court to declare that the DRC was entitled to reparations in the form of compensation only to the extent discharged in the burden the court placed on it in the 2005 judgment. To this end, it wanted the DRC to prove the exact injury suffered as a result of specific action taken by Uganda constituting internationally wrongful acts for which it was responsible. It also wanted the court’s assurance that its finding of Uganda’s international responsibility in the 2005 judgment otherwise constitutes an appropriate form of satisfaction. It asked the court to order each party to bear its own costs.
In addition, Uganda requested the court to reject all the other submissions of the DRC and said it hoped the court’s decision on reparations would enable both parties to continue building peace.