This is the second in a series of posts on the Armed Activities Case. I recommend that you read Part I for a background to the case and for issues relating to consent.
Part II: Issues relating to Occupation
1. Was there an occupation by Ugandan forces in the DRC? If so, where in the DRC?
The DRC claimed that Uganda had occupied DRC territory either directly (through Ugandan forces) or indirectly (through rebel groups that exercised de facto (effective but not legally recognized) control over the territory).
The ICJ concluded that Uganda occupied only Ituri.
In arriving at this conclusion, the Court first referred to customary international law, as reflected in Article 42 of The Hague Regulations of 1907, to find that territory is occupied when 1) it is placed under the authority of the hostile army, and 2) the occupation extends only to the territory where a) such authority has been established and b) can be exercised.
NB 1: This was a situation where foreign forces were already present in the DRC because they were invited by DRC, but had later become a hostile foreign force. This was not a situation where occupation began with a foreign invasion. On what constitutes occupation, see here, here (para 285 onwards), and here.
The ICJ held that for invited forces to become an occupying power, there must be “sufficient evidence to demonstrate that the said authority was in fact established and exercised by the intervening State in the areas in question.” In other words, Ugandan forces must have “substituted their own authority for that of the Congolese Government”.
NB 2: The requirement to show that there was an actual substitution of authority, before qualifying as an occupying power, is criticized by some who argue that such an interpretation would be too narrow and that the ICJ’s judgment, by emphasizing actual over potential control, is not consistent with the requirements in Article 42 of the Hague Regulations. They argue that “while the ICJ’s focus on actual exercise of authority could introduce more certainty as to whether an area was occupied or not, it would also facilitate the creation of more legal black holes that would remain beyond the scope of responsibility of any authority, resulting ultimately in a protection gap…“. See also Sassoli (p.1394). States are divided, with the UK arguing that to qualify as an occupation, the occupying power simply needs to be “in a position to substitute its own authority for that of the former government” (11.3) and the US arguing that it “must substitute its authority for that of the territorial State” (18.104.22.168) (emphasis added).
NB 3: The Court confirmed that occupation was a question of fact. It should not be based on any subjective assessment. Therefore, once Ugandan forces had substituted their authority for that of the DRC government, “any justification given by Uganda for its occupation would be of no relevance”. This means that once an occupation factually comes into existence, regardless of the legality of the initial invasion, or justification provided for any use of force, the hostile State now has rights and duties as an occupying power. See US DoD Manual (11.2.1) and ICRC Commentry.
The Court also held that once Ugandan forces had substituted the authority of the Government, there is no additional requirement to have established a “structured military administration of the territory occupied” for it to be considered as occupied.
The Court concluded that Uganda established and exercised authority in Ituri as an occupying Power (as evident in the creation of a new province in Ituri and appointment of its governors. See para 175).
Uganda, however, did not occupy areas controlled and administered by Congolese rebel movements because these groups were not “under the control” of Uganda (see part III).
2. What were Uganda’s responsibilities as an occupying power?
The Court, referring to Article 43 of The Hague Regulations, outlined Uganda’s responsibilities in Ituri as follows:
“… take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This obligation comprised 1) the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, 2) to protect the inhabitants of the occupied territory against acts of violence, and 3) not to tolerate such violence by any third party.”
Thus, Uganda’s international responsibility was engaged both for 1) any actions and omissions of its military forces in the DRC that violated its international obligations and 2) for any lack of vigilance in preventing violations of IHRL and IHL by any other actors present in this occupied territory, whether these were rebel groups “acting on their own account” or private persons.
3. Was Uganda responsible for activities of its military forces in the DRC, when they acted against Uganda’s instructions?
Uganda argued that its military personnel acted contrary to the instructions given or exceeded their authority and therefore Uganda could not be held responsible. The Court disagreed: 1) A party to an armed conflict is responsible for all acts by persons forming part of its armed forces. 2) The conduct of any organ of a State must be regarded as an act of that State even if that organ exceeded its authority.
Thus, the conduct of the Ugandan forces and of individual soldiers was attributable to Uganda.
The ICJ concluded that Uganda held responsible for acts of looting, plundering and exploitation of the DRC’s natural resources committed by its forces in the DRC and, thus, failed to comply with its obligations under Article 43 of The Hague Regulations of 1907 as an occupying Power (see part III).
4. Was Uganda responsible for activities of non-State actors in the Ugandan occupied territory?
Uganda was held responsible for any lack of vigilance in preventing violations of IHRL and IHL by rebels and private persons in Ugandan occupied territory. For example, the ICJ found Uganda to be in violation of its obligations by not taking appropriate measures to prevent the looting, plundering and exploitation of natural resources in Ituri by private persons. Uganda also did not take measures to respect or ensure respect for IHRL and IHL in the occupied territories (p.280) (on the jurisprudence on the extra territorial application of IHRL see part III).
The ICJ did not hold Uganda responsible for violations of rebel groups that operated outside Ituri because they were not under Uganda’s control (part III).
 Customary International Law, Article 3 of the Fourth Hague Convention of 1907 and Article 91 of Additional Protocol I .