Armed Activities Case: DRC vs Uganda (use of force and non-State actors)

This is the third in a series of blog posts on the armed activities case (see the posts on consent and on occupation). In this post, we focus on the ICJ’s jurisprudence on 1) the use of force, self-defense, and non-intervention; 2) Uganda’s responsibility for actions of non-State actors; 3) the extra-territorial application of human rights; and 4) Uganda’s responsibility for the illegal exploitation of natural resources. It is recommended to read part I for an introduction to this case.

Part III: Use of Force, Non-Intervention, and Self Defense

Relevant Findings of the Court

1.  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 (para 304).

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” (see para 109). 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).

NB 1: 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. 

NB 2: 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. 

NB 3: 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.”

2.   Did Uganda violate the prohibition on non-intervention?

3.  The ICJ held that Uganda engaged in an “unlawful military intervention” and it was of “such a magnitude and duration” that this intervention also constituted “a grave violation” of the prohibition on the use of force in Article 2 (4) of the UN Charter. This is the case “…even if the objectives (of Uganda)… were directed to securing towns and airports for reason of its perceived security needs…”.

3.   Was Uganda responsible for violations by MLC?

4. The ICJ held that the requisite tests were not met for sufficiency of control of paramilitaries, and therefore, Uganda was not responsible for violations of the MLC (an armed group operating in the DRC).This is because the MLC was not: 1) an organ of Uganda; 2) exercising elements of governmental authority on Uganda’s behalf; or 3) acting on the instructions of, or under the direction or control of Uganda (See A. 4, 5 and 8 of Articles on Responsibility of States).

5.  However, Uganda violated international law principles relating to non-intervention when it provided training and military support to the MLC (cf Nicaragua case, point 4)

4.   What was Uganda’s responsibility for violations of its armed forces?

6.  The ICJ found that massive international human rights law (IHRL) violations and grave breaches of international humanitarian law (IHL) were committed by Ugandan forces in DRC and that Uganda was at all times responsible for all activities of its military forces. The ICJ emphasized that the conduct of any organ of a State (in this case military forces and its personnel) must be regarded as an act of that State.

7.  Uganda had argued it was not responsible for activities of the Ugandan armed forces because: 1) they acted contrary to the instructions given; or 2) exceeded their authority; and  3) did not act in the capacity of persons exercising governmental authority. The ICJ disagreed. It emphasized that under IHL, a party to an armed conflict is responsible for all acts by persons forming part of its armed forces.

Part IV: Application of IHRL in armed conflicts

5.   Did IHRL regulate the conduct of Ugandan forces?

8.  In order to respond, the ICJ first considered if 1) IHRL applied during an armed conflict and if so, what was its relationship with IHL; and 2) if IHRL applied, then did it also apply extra-territorially (i.e. to Ugandan forces engaged in a conflict outside Uganda).

9.  On 1) the ICJ reiterated its position in the Palestine Wall Case that:

“…the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights.

As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: 1) some rights may be exclusively matters of international humanitarian law; 2) others may be exclusively matters of human rights law; yet 3) others may be matters of both these branches of international law.”

NB 4: In a situation of conflict of norms between IHL and IHRL, the ICJ in its advisory opinions on the Nuclear Weapons Case and The Palestinian Wall Case considered the lex specialis approach (the principle that special law derogates from general law). Some have argued that better approach may be to see IHL and IHRL as complementary legal regimes, applied in parallel. They have argued that these two regimes  not as mutually exclusive, and emphasized the need to view and resolve any conflicts as conflicts of norms and not as conflicts between legal regimes.The latter will enable an independent evaluation to be made on the applicable norm, in each situation. It will also allow us to avoid situations where States argue that IHL, as lex specialis, displaces IHRL rights of detainees.

In this case, DRC vs Uganda, the ICJ no longer referred IHL as lex specialis (compare paras 216 of DRC vs Uganda,  106 of The Palestinian Wall Case and 25 of The Nuclear Weapons Case

10.  On 2) the ICJ held that IHRL applies extra-territorially and “in respect of acts done by a State in the exercise of its jurisdiction outside its own territory”. This is particularly relevant in occupied territories.

Part V: Exploitation of illegal resources

6.   Was Uganda responsible for the illegal exploitation of DRC’s natural resources?

11.  The ICJ concluded that Uganda was internationally responsible for 1) acts of looting, plundering and exploitation of the DRC’s natural resources committed by members of the UPDF in the territory of the DRC; 2) for its failure to take measures to end these acts; 3) for violating its obligation of vigilance in regard to these acts; and 4) for failing to comply with its obligations an occupying Power in Ituri in respect of all acts of looting, plundering and exploitation of natural resources in the occupied territory. It further held that:

  1. There was no Ugandan governmental policy directed at the exploitation of natural resources of the DRC.
  2. Uganda did not violate DRC’s sovereignty over its natural resources, because the ICJ found that the principle does not apply in “this type of situation.”
  3. Whenever members of the UPDF were involved in the looting, plundering and exploitation of natural resources in the territory of the DRC, they acted in violation of jus in bello, which prohibits the commission of such acts by a foreign army in the territory where it is present.

**  The areas that are not discussed in these three blog posts include jurisdictional objections raised by the parties, and jurisprudence on Uganda’s counter claims, exploitation of natural resources and remedies.

*** Please note that links to external sources are provided as background information on the content, and is not independently verified, nor is such content endorsed by the author.

Armed Activities Case: DRC vs Uganda (Issues relating to Occupation)

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” ( (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.[1] 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).

[1] Customary International Law, Article 3 of the Fourth Hague Convention of 1907 and Article 91 of Additional Protocol I .