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:
- 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.
- 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.”
- 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.
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:
- There was no Ugandan governmental policy directed at the exploitation of natural resources of the DRC.
- 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.”
- 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.