Name of Case: Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo vs Uganda);
Year of decision: 2005; Court: International Court of Justice (ICJ)
Basis of jurisdiction: Compulsory Jurisdiction (Article 36 (2) of the Statute of the ICJ)
Part I: Consent for Military Operations
In this blog post, we focus on the jurisprudence relating to consent to conduct military operations in a foreign territory. Part II will focus on issues relating to occupation and Part III on the use of force, self-defense and non-State actors. We will also briefly touch upon the exploitation of natural resources.
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.
Questions before the Court (on occupation)
- Was Uganda an occupying power in the DRC?
- Did Uganda violate principles prohibiting intervention and use of force though its occupation?
- Did Uganda as an occupying Power, fail to take measures to respect and ensure respect for, or violate, human rights (IHRL) and international humanitarian law (IHL) in occupied areas?
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.
- 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.
- 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.
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).
The Security Protocol had not provided the legal basis (authorization/ consent) for the presence of Ugandan troops, but reaffirmed authorization/ consent. The source of authorization/consent antedated the Protocol. Thus, the withdrawal of consent did not require a formal denunciation of the 1998 Security Protocol (para 47).
Thus, the DRC could withdraw its consent at any time, without any formalities being necessary.
NB 1: In this respect, it is important to note that the DRC argued before the ICJ that the Security Protocol did not constitute an “invitation or acceptance by either of the contracting parties to send its army into the other’s territory”. The Court held that both the absence of any objection to the presence of Ugandan troops in the DRC in the months before signing the Protocol, and subsequent practice, indicates that the continued presence, as before, of Ugandan troops was permitted by the DRC even under the Protocol. Thus, continued consent for foreign forces presence need not be expressed, and can be ascertained from facts on the ground.
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.
NB 2: 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 (para 112).
NB 3: 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.
Issues relating to occupation raised in this case are dealt with in the next blog post.