By Thomas Verfuss
Just two days after its 75th anniversary, the International Court of Justice (ICJ) in The Hague will on Tuesday, April 20, 2021, start hearings on reparations for war crimes in the case Democratic Republic of the Congo versus Uganda.
The judges of the highest court in the world, “the principal legal organ of the United Nations” that has its seat in the Peace Palace, will have to decide on a philosophically difficult question: how much financial compensation should be allocated for loss of life as a consequence of war crimes?
As long ago as in June 1999, the government of the DRC in Kinshasa instituted proceedings at the ICJ against Burundi, Rwanda, and Uganda for “acts of armed aggression committed . . . in flagrant breach of the United Nations Charter and of the Charter of the Organisation of African Unity (OAU)”, the predecessor of today’s African Union.
The ICJ Registry, the neutral organ of the World Court that streamlines the functioning of its administration, stated at the time, on June 23rd, 1999: “In its applications, the DRC contends that the invasion of Congolese territory by Burundian, Ugandan, and Rwandan troops on 2 August 1998 (an invasion currently claimed to involve fighting in seven provinces) constitutes a ‘violation of [its] sovereignty and of [its] territorial integrity’, as well as a ‘threat to peace and security in central Africa in general and in the Great Lakes region in particular’. The DRC accuses the three states of having attempted to ‘seize Kinshasa through the lower Congo, in order to overthrow the Government of Public Salvation and assassinate President Laurent Désiré Kabila, with the object of installing a Tutsi regime or a regime under Tutsi control’. The DRC also accuses those states of ‘violations of international humanitarian law and massive violations of human rights’ (massacres, rapes, attempted kidnappings, and murders), and of the looting of large numbers of public and private institutions. It further claims that ‘the assistance given to the Congolese rebellion or rebellions . . . and the issue of frontier security were mere pretexts designed to enable the aggressors to seize the assets of the territories invaded and hold the civil population to ransom”.
As one may note, the case has been dragging on for almost 21 years without a final resolution. ICJ cases have a reputation for often dragging on for a long time, as shall be explained in more detail below. ICJ cases also sometimes don’t have a conclusion, with a final judgement on the merits, because they are “lost in action”, for after a long litigation, the court has to conclude that it has no jurisdiction to entertain the case, or because the very object of the case becomes moot, like in the Lockerbie case about US and UK sanctions against Libya, or because cases are simply withdrawn after some political horse-trading behind the scenes.
The DRC cases against Burundi and Rwanda ended without a judgement on the merits. It is only Uganda that is left.
After years of back and forth, in 2005, the ICJ judges found that “Uganda violated the principles of non-use of force in international relations and of non-intervention; that it violated its obligations under international human rights law and international humanitarian law; and that it violated other obligations owed to the Democratic Republic of the Congo. The court also finds that the Democratic Republic of the Congo violated obligations owed to Uganda under the Vienna Convention on Diplomatic Relations of 1961.”
Ugandan or Ugandan-sponsored forces committed war crimes against Congolese civilians; the Congolese government failed to protect the Ugandan embassy in Kinshasa against attacks from mobs. The governments of both countries owe each other reparations, the world’s highest judges ruled.
The tragedy of internal fighting and foreign interventions in Congo, with, as a direct or indirect consequence, the loss of millions of lives, has sometimes been described as “Africa’s Third World War” and neighbouring countries exploiting the natural resources of Congo for the benefit of rich people in “the Western world”. The ICJ judges found that “the Republic of Uganda, by engaging in military activities against the Democratic Republic of the Congo on the latter’s territory, by occupying Ituri, and by actively extending military, logistic, economic, and financial support to irregular forces having operated on the territory of the DRC, violated the principle of non-use of force in international relations and the principle of non-intervention”.
The World Court found that “the Republic of Uganda, by the conduct of its armed forces, which committed acts of killing, torture, and other forms of inhumane treatment of the Congolese civilian population, destroyed villages and civilian buildings, failed to distinguish between civilian and military targets and to protect the civilian population in fighting with other combatants, trained child soldiers, incited ethnic conflict, and failed to take measures to put an end to such conflict; as well as by its failure, as an occupying power, to take measures to respect and ensure respect for human rights and international humanitarian law in Ituri district, violated its obligations under international human rights law and international humanitarian law”.
Then comes the crucial point which keeps us busy this week: The court, in 2005, “Unanimously, finds that the Republic of Uganda is under obligation to make reparation to the Democratic Republic of the Congo for the injury caused; Unanimously, decides that, failing agreement between the parties, the question of reparation due to the Democratic Republic of the Congo shall be settled by the court, and reserves for this purpose the subsequent procedure in the case.”
Fifteen years later, there is still no agreement between the governments in Kinshasa and Kampala on the amount of reparations; so the judges have to come in and decide. They have noticed the destruction and loss of life in the decision cited above. But how much is a life lost “worth” in reparations?
The judges of another permanent international court in The Hague, the ICC, which, contrary to the ICJ, does not deal with legal conflicts between states, but with criminal cases against individuals, have been criticised because they awarded only $250 of reparations to the victims of the massacre in the Congolese village of Bogoro, where about 200 people were murdered. On the other hand, some of them, led behind the scenes by their president, sued their own court in another court because they thought that a monthly pay of 15,000 euros tax-free is not enough. It is a tricky thing for an international court, in the spotlight of the international press, to fix an appropriate amount of compensation for loss of life.
As of Tuesday, April 20th, the ICJ judges will engage in this difficult exercise, hearing first the submissions of the Congolese and Ugandan governments, in what has been described by insiders as a “nightmare dossier”. The amount asked for by the Kinshasa government is officially still confidential and will be made public by the ICJ once the public hearings in the Peace Palace start. But it has been described by informed people as having the potential to ruin the Republic of Uganda, if allocated by the ICJ judges.