CONGO’ S WAR: THE LEGAL DIMENSION OF A PROTRACTED CONFLICT
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CONGO’ S WAR: THE LEGAL DIMENSION OF A PROTRACTED CONFLICT
B y P N O . I
Queen Mary University of London. The research on which this article is based was made possible by the generous grant of research leave from the Arts and Humanities Research Council and the Department of Law, Queen Mary University of London. The final draft was prepared during the tenure of a visiting fellowship at the University of Stockholm. I am most grateful to Professor Jonas Ebbesson and his colleagues in the Department of Law for making this visit possible. On the ceasefire, see the Global and All-Inclusive Agreement signed in Pretoria on December ; Keesings Contemporary Archives () . This agreement provided for a transitional government leading to legislative and presidential elections within two years. United Nations Mission in the DRC See Resolution of July and Resolution of March . By its Resolution () of October , the Security Council revised the mandate of MONUC and authorized the increase of MONUC’s strength by , personnel. It expressed its determination to keep MONUC’s strength and structure under review in light of developments in the DRC. See also SC, Third Special Report of the Secretary General on the UN mission in the DRC S// Democratic Republic of Congo: Transitional Process and UN Mission, CRS Report for Congress Order Code RS, March . The Central American conflict of the s had also generated analogous attempts to use international dispute settlement mechanisms for the resolution of the conflict. Nicaragua had instituted three cases against neighbouring States for their alleged complicity in giving support to the activities of the Nicaraguan contra rebels. See Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Judgment of June (Merits) ; Border and Transborder Armed Actions (Nicaragua v Costa Rica), Application of July , Order of August placing on record the discontinuance of proceedings, General List No [] ICJ Rep ; Border and Transborder Armed Actions, Nicaragua v Honduras, this application was also withdrawn by Nicaragua following a change of government in that country [] ICJ Rep .
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Officially the armed conflict that has engulfed the Democratic Republic of Congo (DRC) (formerly Zaire) is at an end, and foreign troops have left Congolese territory. A UN-supervised fragile ceasefire, intermittently broken by the warring parties, has been in place since December . Many of the armed groups have not disbanded and a reduced level of fighting continues. Yet notwithstanding the ceasefire and a formal commitment to political peace process, the legal ramifications of this unusually complex conflict will be of concern for some time to come. For one thing the conflict in its widest sense generated an unprecedented pattern of serial litigation before international tribunals on a wide range of international law questions. The Arrest Warrant case brought by the DRC against Belgium, although concerned with the extent
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Case Concerning Arrest Warrant of th April (Democratic Republic of Congo v Belgium), Judgment of February General list No. Armed Activities on the Territory of the Congo (DRC v Burundi), Application of June , General List No Armed Activities on the Territory of the Congo (DRC v Rwanda), Application of June , Order of January placing on record DRC’s application to discontinue proceedings and the Court’s order that the case be removed from the General List. On May , the Republic of Rwanda instituted a new application based on different jurisdictional grounds. Application of May . Application instituting proceedings filed in the registry of the Court on June , General List No . See also order on request for indication of provisional measures, ICJ Press Communiqué / ( July ), on which see D Kristiotis () ICLQ –; L Savadogo, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda: The Court’s Provisional Measures Order of July () BYIL . By an order of January , the Court placed on record the discontinuance of the proceedings and ordered that the case be removed from the list. Rwanda’s new application to the International Court of Justice was founded on a number of human rights instruments and specific treaties in the field of civil aviation. The court treated these treaties as lex specialis, and therefore not an appropriate basis for jurisdiction on a dispute which was primarily concerned with the use of force. See Judgment of January ; See also A Orakhelashvilli, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda) Jurisdiction and Admissibility, Judgment of February ICLQ (), –. On the text of the referral, see ICC-OTP-–-en. Although the conflict in the DRC dates back to , the Court’s temporal jurisdiction is restricted to events taking place after it was established in July . This effectively excludes from the Court’s remit a large number of horrendous crimes which on any account would be regarded as crimes against humanity. These conflicts include those waged by the governments of Rwanda, Uganda, and Burundi against the DRC either directly or through their surrogates, principally the various factions of Congolese rebel groups, and those being waged by the government of Rwanda against the former Rwandan Armed Forces, as well as other armed anti-Rwanda militia groups popularly known as the ‘Interahamwe’. The government of Uganda is also involved in conflict with various Ugandan insurgent groups. These include the Lords Resistance Army (LRA), Former Ugandan National Army (FUNA), West Nile Bank Front (WNBF) and the National Army for the Liberation of Uganda (NALU); Allied Democratic Forces (ADF). There was also armed conflict between the Angolan government and the National Union for the Total Independence of Angola (UNITA); while Burundi is fighting the rebel group Front Pour la defense de la democratie (FDD). Various other Congolese irregular armed groups are involved in the conflicts taking place in the DRC. These include Mai–Mai of South Kivu, Mai–Mai of North Kivu, Union des nationalistes republicans pour la liberation (UNAREL), Mouvement Pour la securite, la paix et le developpement (MSPD), Mongols (Hutu militia operating in the Masisi area) and Local Defence Unit (Paramilitary group organized by RCD/GOMA. For a useful catalogue of conflicts taking place on the territory of the DRC, see the Report of the Special Rapporteur Roberto Garreton on Situation of Human Rights in the Democratic Republic of the Congo in accordance with Commission on Human Rights Resolution / esp. Annexes V and VI
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of immunities of a serving foreign minister, indirectly raised the question of accountability for violations of humanitarian norms including war crimes committed during the armed conflict. Three cases directly concerned with the use of force were instituted against Burundi, Rwanda, and Uganda. On December the Court delivered its judgment on the merits of the case brought against Uganda. The case against Burundi was withdrawn for want of jurisdiction, and on January the Court found that it had no jurisdiction to entertain the merits of the case brought against Rwanda. The DRC has also asked the Prosecutor of the International Criminal Court (ICC) to investigate with a view to prosecution, atrocities committed by all parties to the Congolese conflict. On
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March the ICC secured the arrest and transfer of Mr Thomas Lubanga Dyilo, a national of the DRC and the alleged founder and leader of the Union des patriots Congolais (UPC). This is a first step towards ending immunity for crimes against humanity and other war crimes committed in the DRC. For all these reasons the importance of this conflict hardly needs emphasis. . B
Situation En Republique Democratique Du Congo Affaire Le Procureur C. Thomas Lubanga Dyilo, Case No ICC-/–/ . For a comprehensive catalogue of conflicts taking place in the territory of the DRC, see the Report on the Situation of Human Rights in the Democratic Republic of the Congo submitted by the Special Rapporteur, Mr Roberto Garreton, n above; United States Institute of Peace, ‘Putting Humpty Dumpty Together: Reconstructing Peace in the Congo’, Special Report No . MONUC, ‘Why the DRC Matters’ International Rescue Committee, ‘ “Inside Congo”, an unspeakable Toll’ July , ; Wikipedia ; The British Guardian newspaper put the estimate at . million people, see ‘Counting the Dead’ , April . The only comprehensive study of this conflict to date remains JF Clark, The African Stakes of the Congo War () but this eschews any discussion of the legal issues arising from the conflict. But see case comments by D Kristiotis, DRC v Uganda (provisional measures), n above and Savadogo n above. The literature on Kosovo is vast and includes Nico Krisch, ‘Legality, Morality, and the Dilemma of Humanitarian intervention after Kosovo’ () EJIL ; Peter Hilpold, ‘Humanitarian Intervention: Is there a Need for a Legal Reappraisal?’ () EJIL ; JL Holzgrefe and Robert O Keohane (eds), Humanitarian Intervention (); B Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’ () EJIL ; D Kristiotis, ‘The Kosovo Crisis and NATO’s Application of Armed Force against the Federal Republic of Yugoslavia’ () ICLQ
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The armed conflict in the DRC was one of the most serious and protracted of any since the Second World War. Since the conflict began in , it had directly involved on different sides, the armies of Uganda, Rwanda, Burundi, Zimbabwe, and Namibia; three other States (Angola, Sudan, and Chad) have also been indirectly involved. No less than twenty-one other armed groups have also taken part as combatants. There were not one but several conflicts: some internal to the DRC, foreign internal conflicts fought on Congolese territory between rebel groups and their governments, and an international conflict which pitted at least six foreign armies either for or against the DRC. It is estimated that between and million people died as a consequence of this conflict, perhaps the largest number of conflict-related deaths since . The casualties from the Congolese conflict are thus considerably larger than the estimated two million people who died in the Korean and Vietnam conflicts respectively. A further million or so have been affected by the hostilities. It therefore remains puzzling that the legal dimension of this conflict has received little attention in the literature, as compared to the avalanche of literature generated for instance by the Kosovo conflict.
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; see Independent International Commission on Kosovo, Kosovo Report ; J Charney, ‘Anticipatory Humanitarian Intervention in Kosovo’ () AJIL . Memorial of the Republic of Congo, vol , July (translation) ch . O Afoaku, ‘Congo’s Rebels: Their Origins, Motivations and Strategies’ in Clark n above, at ; The UK All Party Parliamentary Group on the Great Lakes Region and Genocide Prevention, Report on Visit to the DRC , paras .. and ... The United Nations Organization Mission in the Democratic Republic of Congo (MONUC) estimates that around , former members of the Rwanda army operate from the territory of the DRC. The estimates given by the Rwandan Government on the other hand are considerably higher. See ‘First Assessment of the armed groups operating in the DRC’, in a letter dated April from the Secretary-General addressed to the President of the Security Council, S// See Joint Evaluation of Emergency Assistance to Rwanda ‘The International Response to Conflict and Genocide: Lessons from the Rwanda Experience’ March ; AH Gnamo, ‘The Rwandan Genocide and the Collapse of Mobutu’s Kleptocracy’ in H Adelman and A Suhrke (eds), The Path of a Genocide: The Rwandan Crisis from Uganda to Zaire (); Robert B Edgerton, ‘The Troubled Heart of Africa’ in A History of the Congo () .
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A number of factors may help to explain the unusual complexity of the conflict. The first is a question of size and geography: The DRC is Africa’s second largest State, and is roughly the same size as Western Europe. The distance from Goma, the epicentre of the conflict in the east, to the capital, Kinshasa, is about the same as from London to Sarajevo. Most of this is difficult geographical terrain consisting largely of mountainous territory, over which successive Congolese governments have found it difficult to maintain any semblance of administrative control. This has been a source of insecurity for neighbouring States with foreign insurgents taking advantage of the resulting political vacuum and the difficulties of access. The DRC borders nine States. Of these Uganda, Rwanda, Burundi, and Angola have entrenched internal rebellions of their own, which have spilled over into the DRC. For instance the Hutu and Tutsi communities whose conflicts precipitated the Rwandan Genocide also inhabit the territories of DRC, Uganda, and Burundi. There is considerable evidence that the Rwanda Genocide was the main catalyst for the conflict in the DRC. It is widely believed that during the civil war and its immediate aftermath, Mobutu’s Government had given support and subsequently sanctuary to thousands of armed genocidaires and members of the Rwandan army who were responsible for the massacres. It was therefore inevitable that the influx of refugees from those countries into the DRC would exacerbate pre-existing ethnic tensions in the DRC itself. A particular source of tension within the DRC itself was the existence of the Banyamulenge, a Tutsi group who emigrated from Rwanda at the turn of the th century but who retained strong affinities with Rwanda and were never properly integrated into Congolese society. Angola’s longrunning civil war between the ruling party and the opposition led by Jonas Savimbi’s UNITA forces was in part fought on Congolese territory where Savimbi’s rebel forces had sought sanctuary with the apparent support or
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T Turner, ‘Angola’s Role in the Congo War’ in Clark (n above at) ; C Young, ‘Zaire. The Unending Crisis’, Foreign Affairs (Fall ) –; GJ Bender, Relations between Angola and Zaire/DRC, From Lumumba to Kabila (UN Secretary-General’s Resource Group on the DRC, ). Two Burundian armed groups maintained an active presence in the territory of the DRC from where they have mounted attacks against the government in Bujumbura. These groups were, Forces pour la défense de la démocratie (FDD) and Forces nationals pour la libération (FNL), in , United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) estimated that there were between , to , FDD troops operating in the DRC, United Nations Security Council, ‘First Assessment of the armed groups operating in the DR Congo’, letter dated April from the Secretary-General addressed to the president of the Security Council, S//. See Edgerton (n above) at –. For an interesting account of the reasons as well as the motives of the various actors in the Congolese conflicts from the perspective of political scientists, see Clark, The African Stakes of the Congo War, –. Final Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of Congo, UN Doc S//, October ; Interim Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and other forms of wealth of the DRC–UN Doc S/— May ; Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and other forms of wealth of the DRC–UN Doc S//— April ; Interim Report of the United Nations Expert Panel on the Illegal Exploitation of Natural Resources and other forms of wealth of the Democratic Republic of Congo, UN Doc S//— January ); Addendum to the Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and other forms of wealth of the Democratic Republic of the Congo–UN Doc S//— November . UK All Party Parliamentary Group on the Great Lakes Region and Genocide Prevention. Cursed by Riches: Who Benefits from Resource Exploitation in the Democratic Republic of Congo? November ; Final Report of the Judicial Commission of Inquiry into Allegations of Illegal Exploitation of Natural Resources and other Forms of Wealth in the Democratic Republic of Congo (May –November ), Kampala, November ; Human Rights Watch, International Initiatives to Address Resource Exploitation in the DRC . Two resolutions and four presidential statements were passed by the Security Council directly linking the conflict to Congo’s vast mineral resources, see UN Security Council presidential statements, June (S/PRST//), May (S/PRST//), December (S/PRST//), November (S/PRST//) and Security Council Resolutions and , January and August .
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complicity of Mobutu’s government. The prolonged tensions between Burundi’s Hutu and Tutsi ethnic communities has also been closely intertwined with the Congolese conflict, where Hutu and Tutsi communities also live. The resulting influx of refugees and the absence of any semblance of border controls created a conflict that seamlessly spread throughout the Great Lakes region. In a broader sense the Congolese conflict must also be seen as a direct casualty of the demise of protection provided by the superpowers during the Cold War. With the end of the Cold War, Mobutu’s corrupt government lost an important ally in the United States. The resulting political and economic crisis gave renewed impetus to simmering and disgruntled opposition groups. Perhaps the most significant driving force of the Congolese conflict is the country’s vast mineral resources. In its successive reports to the United Nations, the UN-appointed panel of experts concluded that exploitation of Congo’s resources had played a predominant role in sustaining and prolonging the conflict. It is doubtful whether legal justifications can be
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considered in isolation from the real motives of the parties in waging the war and the broader socio-political context of the conflict. The evaluation of the conflict should therefore encompass both the applicable rules of jus ad bellum as well as the corpus of customary law rules on the exploitation of natural resources whatever their content. . T L I C
On which see Clark (n above) ch and Osita Afoaku, Congo’s Rebels: Their Origins, Motivations, and Strategies, n. above ch ; in DRC v Uganda, the International Court of Justice in line with the legal formalism that has characterized its previous jurisprudence refused to be drawn into any discussion as to the motivation of the parties in going to war, insisting that it had no bearing on the legal issues it was called upon to decided. See judgment of December . General list No . See SC Res (). The DRC’s alleged consent to the presence of Ugandan troops formed a central element of the case brought by the DRC against Uganda. In its judgment of December , the International Court of Justice noted that although the DRC may have consented to the presence of Ugandan troops, any prior consent was withdrawn at the latest by August fundamentally changing the character of Uganda troops on Congolese territory. Judgment of December , General List No para . This issue is examined in some detail subsequently. The Lusaka Ceasefire Agreement was signed on July by representatives of Angola, the DRC, Namibia, Rwanda, Uganda, and Zimbabwe and witnessed by representatives from Namibia,
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Although the Republic of Zaire had been in a state of upheaval for most of the s, the roots of the conflict can be traced to when the first Congo War directed at the overthrow of Mobutu began. This war formally ended in with the overthrow of Mobutu and the replacement of his government by that of the Allied Democratic Forces (AFDL) led by Laurent Kabila. Although a number of issues relating to the first war are pertinent to the inquiry, the focus here will mostly be on the legal issues arising from the second war, which began in . By then the first conflict and its aftermath was treated as a fait accompli, the international community having acquiesced in the circumstances surrounding Mobutu’s overthrow and his replacement by Kabila. No doubt the intervention by foreign forces was of doubtful legality. However, in so far as the intervention was broadly regarded as a reflection of Congolese self-determination, any international censure would have seemed inappropriate. The post- conflict itself presents a number of unusual features. Although the justifications advanced by the parties employ the conventional language of aggression and self-defence, the whole conflict is compounded by the fact of its evolution over a period of more than ten years, during which time the relations between the warring parties was characterized by shifting alliances. Indeed the DRC had consented to the presence of the alleged aggressors, Uganda and Rwanda, for certain periods. This period also witnessed protracted attempts to settle the dispute through political channels. The most significant of these initiatives resulted in the Lusaka ceasefire agreement and related instruments, an
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the OAU, the United Nations, and Southern African Development Community (SADC). Two of the Congolese rebel organizations, MLC and RCD also signed the agreement. See also the Agreement between the Governments of the DRC and the Republic of Uganda on withdrawal of Ugandan troops from the DRC, Cooperation and Normalization of Relations between the two Countries (); Plan for the Implementation of the Agreement between the Governments of the DRC and the Republic of Uganda on the withdrawal of Ugandan troops from the DRC, Cooperation and Normalization of Relations between the two countries; Luanda Agreement (Final Communique) all in . DRC v Uganda, December , para . For a list of the armed groups operating in the DRC, see ‘First Assessment of the armed groups operating in the Democratic Republic of Congo’, in letter of April from the SecretaryGeneral addressed to the President of the Security Council, S//; Third Special Report of the Secretary-General on the UN Mission in the Democratic Republic of Congo, S// and n above. The level of dependency of these armed groups on foreign powers, given the clandestine nature of support in a conflict situation, is one that has proved particularly difficult to assess. In its judgment in the case brought by the DRC v Uganda, the Court accepted that Uganda had given support to Congolese rebels contrary to the non-intervention norms but was unable to conclude that the dependency was such that these Congolese rebels could be classified as agents of Uganda for purposes of responsibility, Judgment of December , para . The evidential difficulties were explicitly noted by the Court in the case of DRC v Uganda, judgment of December , paras –.
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inter-related series of multilateral instruments aimed at a formal ceasefire and troop withdrawal. Under the terms of these arrangements, foreign troops were to remain in the territory of the DRC subject to an agreed timetable of staggered withdrawal. These peace instruments implicitly rested on the premise that the presence of Uganda and Rwandan troops on Congolese territory was not wholly without foundation. They certainly left open the possibility that the continued presence of Ugandan and Rwandan troops was legitimate, although this interpretation was objected to by the DRC and eventually rejected by the International Court of Justice. Unusually, the conflict has only peripherally involved national armies. In most cases it has involved rebel groups of varying degrees and levels of organization, either acting independently or as surrogates of the participating States. The presence of several foreign armies, internal Congolese rebels, as well as foreign insurgents has resulted in a conflict which has aspects of a civil war, a rebellion and an interstate conflict at the same time. This raises two distinct problems. First, the complexity of the conflict makes it difficult to identify relevant actors, evaluate the evidence, and attribute responsibility in line with the accepted legal categories. Although the International Court has generally taken the view that it will not be deterred from giving a judgment on account of the factual complexity of a conflict, this feature of the war accounts for the Court’s reticence in dealing with some of the issues. The Court was faced with an ongoing conflict, involving a multiplicity of parties, in a State with a non-functioning administrative structure. In the absence of an independent means of verification, such factual uncertainties must tend to limit the contribution a judicial tribunal can make to the resolution of the dispute.
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L Doswald-Beck, ‘The Legal Validity of Military Intervention by Invitation of the Government’ () BYIL . Case Concerning Military and Para-Military Activities in and Against Nicaragua (hereinafter Nicaragua case) [] ICJ Rep paras and ; see also Tadic Jurisdiction, ILM () ; Judgment, ILM () ; Appeal, ILM (); C Gray, ‘Bosnia and Herzegovina: Civil War or Interstate Conflict?’ () BYIL ; C Greenwood, ‘International Humanitarian Law and the Tadic Case’ () EJIL . C Gray, International Law and the Use of Force by States (nd edn, ) ; T Franck, Recourse to Force: State Action Against Threats and Armed Attacks (), chs , , and ; Y Dinstein, War, Aggression and Self-defence (th edn, ), –; M Bothe, ‘Terrorism and the Legality of Preemptive Force’ () EJIL ; see also T Ruys and Sten Verhoeven, ‘Attacks by Private Actors and the Law of Self-defence’, () Journal of Conflict and Security Law () –. This issue is explored in detail subsequently. Third Special Report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of Congo, S//; The Fund for Peace, Failed States Index, ; ‘Rebuilding Failed States from Chaos and Order’ the Economist, March ; Robert I Rotberg, ‘The Failure and collapse of Nation States: Breakdown: Prevention and Repair’, in R Rotberg (ed), Why States Fail: Causes and Consequences () –.
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A second problem is that of identifying the applicable substantive law. The Charter framework was conceived for and has continued to be concerned with interstate conflicts. The evolving State practice in the period since the Second World War has applied a discrete set of principles to internal conflicts, even when carried out with the support of foreign governments. A distinct set of precepts apply to situations where a use of force is followed by the occupation of territory by another State. However, the criteria to be applied in characterizing conflicts are not free from controversy. The recognition that the bulk of conflicts since are concerned with the activities of non-State actors has not, however, been accompanied by any coherent examination of the applicable legal regime. For instance, it remains controversial whether the concept of armed attack in the law on self-defence also covers situations where the source of the attack is not a State or its instrumentality but rather a nonState entity. Congo’s multi-dimensional conflict provides an occasion for evaluating the adequacy of existing international law structures and categories when applied to non-conventional conflicts. The Congolese conflict has taken place against the background of a State that has been described as ‘failed’ or failing, by which is meant one in which the central government structures were for considerable periods unable to exercise public power over the population or to institute a credible system of public administration. The disintegration of the Congolese State has had profound consequences on the security of neighbouring States, as foreign insurgents have freely taken advantage of the resulting power vacuum to wage war against their home States. Indeed the justifications put forward by Uganda and Rwanda for invading the Congo hinge on the fact that a dysfunctional Congolese State was unable to guarantee their security interests under the Charter. Yet the concept of State failure is not part of the prevailing international legal language, and its implications for the rules on the use of force remain
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The nomenclature of failed or failing States is not part of international legal discourse but the concept is familiar to international relations scholars. See H Weiss, ‘Zaire: Collapsed Society, Surviving State, Future Polity’ in IW Hartman, Collapsed ‘Collapsed States: the Disintegration and Restoration of Legitimate Authority’ () ; RH Jackson, Quasi-States: Sovereignty, International Relations and the Third World (); RH Jackson and C Rosberg, ‘Why Africa’s Weak States Persist: the Empirical and the Juridical in Statehood’, World Politics ; For some discussion of the resulting problems in international law literature see: G Kreijen, ‘The Transformation of Sovereignty and African Independence: No Shortcuts to Statehood’, in G Kreijen, State Sovereignty and International Governance (). For the view that such categorization has no positive value in addressing the agenda of problems that governmental failure gives rise to, see J Crawford, Creation of States in International Law (nd edn, ) and . Report of the High Level Panel on Threats, Challenges, and Change, ‘A more Secure World: Our Shared Responsibility’, UN Doc A// pp –. The existence of a political vacuum in the DRC especially in the East of the country was put forward by Uganda in its pleadings before the International Court of Justice as a possible independent basis for the use of force against the DRC, See Counter-Memorial of the Government of Uganda, paras – and – See the resolution on the definition of aggression, GA Res ; Declaration on Friendly Relations, GA Res ; Declaration on the Non-Use of Force, GA Res / (); Nicaragua case [] ICJ Rep, para ; –; paras and ; I Brownlie, International Law and the Use of Force by States () ; L Doswald-Beck, ‘The Legal Validity of Military Intervention by Invitation of the Government’ () BYIL ; Gray, International Law and the Use of Force by States, ch ; D Moisi, ‘Intervention in French Foreign Policy’ in H Bull (ed), Intervention in World Politics () ; Alam, ‘Indian Intervention in Sri Lanka and International Law’ () NILR ; L Moir, The Law of Internal Armed Conflict (). Ruys and Sten Verhoeven (n above) –; AC Muller, ‘Legal Issues Arising from the Armed Conflict in Afghanistan’, Non-State Actors and International Law () –. H Lauterpacht, Recognition in International Law () –; Norman J Padelford, International Law and Diplomacy in the Spanish Civil Strife () –; L Moir, The Law of Internal Armed Conflict, n above at –; H Wilson, International Law and the Use of Force by National Liberation Movements () –.
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unexamined. Looked at in another way, the conflict has re-ignited the debate about the nature of sovereignty and whether its indefeasibility should be seen as dependent on the actual existence of a State as a viable entity capable of discharging obligations owed to third States. In particular, it raised questions as to the nature of the Charter’s non-intervention norms and their potency as against a State that had allowed its territory to be the theatre of armed activities against the interests of neighbouring States. There is an underlying assumption in the post- international law structure that the central government within a State has a monopoly of power. The non-intervention norms at the centre of the Charter’s framework are heavily biased in favour of the established government, and other claimants to governmental authority whatever the merits of their case are generally presumed to be outside the protection of the law. Moreover, there is in general no systematic framework for analysing the legality of rebel conduct in jus ad bellum especially in situations where their activities have no nexus to or are not directly attributable to another State. In the period before the Charter, the institutions of insurgency and belligerency provided a framework for responding to opposing claims to governmental authority in conflict situations. Both concepts have, however, hardly been employed and are regarded by the majority
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Crawford, The Creation of States in International Law, ; R Oglesby, Internal War and the Search for Normative Order (); RA Falk, Legal Order in a Violent World (); but see BR Roth, Governmental Illegitimacy in International Law () ; L Zegveld, The Accountability of Armed Opposition Groups in International Law () –. See Uganda Counter-Memorial and also oral pleadings of the DRC Public sitting held on April , arguments of Mr Sands, para . On admissions by the DRC of a systemic inability to exercise administrative control over large areas of its territory, see Memorial of the DRC, paras ., . and DRC, Reply, paras ., ., ., and .); Rejoinder submitted by the Republic of Uganda, para . The literature on state failure in international legal discourse is still sparse but see Inger Osterdahl, ‘Relatively Failed: Troubled Statehood and International Law’, XIV Finnish Yearbook of International Law () ; D Thurer, ‘The Failed State and International Law’, IRRC () –; NL Wallace-Bruce, ‘Of Collapsed, Dysfunctional and Disoriented States: Challenges to International Law’ () NILR –, at ; Y Osinbajo, ‘Legality in a Collapsed State: The Somali Experience’ () ICLQ . The difficulties presented for foreign companies operating in rebel controlled territories was noted by the UK All Party Parliamentary Group (APPG) in its commentary on the OECD Guidelines for Multinational Enterprises. It notes that the ethical guidelines fail in particular to deal with the issue of how companies should deal with rebel authorities in war zones, APPG, The OECD Guidelines for Multinational Enterprises and the DRC: Interim Findings, Letter of December . There have been studies on the accountability of such groups for violations of human rights and humanitarian norms, see L Zegveld, The Accountability of Armed Opposition Groups in International Law () L Moir, The Law of Internal Armed Conflict (); Peter Muchlinski, ‘Human Rights and Multnationals: Is there a problem?’, () International Affairs () –.
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of writers as having fallen into desuetude. Yet, as the Congolese conflict illustrates, governmental failure may in fact give rise to rival claimants for State power, and in a manner that may affect the application of the international law rules on use of force. At least three of the main rebel movements in the DRC, Rassemblement Congolais pour la Démocratie (RCD-Goma and RCD-Kisangani) and Mouvement pour la libération du Congo (MLC) had for considerable periods made serious claims to governmental authority. This extended to the exercise of day-to-day administrative duties, such as collection of taxes, without any significant challenge from the government in Kinshasa. Yet the implications for the law on use of force of disputed claims to State power in established as opposed to emerging States has received little attention in the literature. The Congo conflict thus provides the opportunity to re-examine the priority given to a ruling government as the beneficiary of non-intervention norms in situations where access to public power is deeply contested, and where coherent and well-organized insurgencies have functioned as de facto administrative authorities. Furthermore, the legal consequences of administrative control being assumed by rebels have remained unexamined not only from the jus ad bellum perspective but also within the general framework of international law on state responsibility. Consideration of this issue in the work of the ILC was concerned with situations where rebels were successful in their quest to establish a new government or where their conduct could on an analogy with the law on agency be attributed to a State or its instrumentality. The question of the exercise of governmental authority in situations analogous to insurgency or belligerency, where the insurrection is
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. R I A G C ⁄ S F Are there any circumstances when international law permits intervention on account of State failure or governmental loss of authority by third States acting unilaterally and without Security Council authorization? In the pleadings before the International Court and in other statements made before public forums, the parties to the Congolese conflict attached particular importance to the fact that the Government in the DRC had in most material respects ceased to exercise any form of public power over a substantial part of the Congo. In its Memorial as well as in oral argument, the DRC conceded that its central government had for prolonged periods under Mobutu’s leadership and subsequently ceased to exercise any form of effective control in the eastern part of the country. For the -year period that President Mobutu was in power a large See Commentary to the Draft Articles Adopted in ; See B Roth, Governmental Illegitimacy in International Law, n above. See UK All Party Parliamentary Group on the Great Lakes (n above) and the various contributions in Clark (n above). See General Assembly Resolution on the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples; see also GA Res / of December ; / of December ; / of December ; / of December ; and / of December ; See also letter dated January from the Under-Secretary General for Legal Affairs, addressed to the President of the Security Council on ‘The Legality in the Context of International Law, including Relevant Resolutions of the Security Council and the General Assembly of the UN and agreements concerning Western Sahara of actions allegedly taken by Moroccan authorities consisting in the offering and signing of contracts with foreign companies for the exploration of mineral resources in Western Sahara’, S//. Memorial of the Democratic Republic of Congo, pp –, paras . and .; Reply, paras ., ., and .; Uganda, Counter-Memorial and Oral Pleadings, Public seating April arguments of Mr Reichler. Para – .
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ultimately unsuccessful was not given extensive treatment. This issue now needs to be re-examined. The Congo war has been dubbed a conflict over the exploitation of natural resources. The war it has been said was both caused and sustained by Congo’s vast mineral wealth. The conflict has also raised in a novel form the legal framework governing the exploitation of a State’s natural resources, especially if achieved by the use of force. The question of a people’s permanent sovereignty over natural resources was an important feature of the debate during the decolonization process but the implications of its application outside that context have not generated much interest. The Congo case has directly raised the question as to the nature of this right, in particular whether it is a right that peoples might be entitled to enforce not only as against their own governments but also foreign entities, and rebels exercising administrative control of territory. This article will discuss the legal issues outlined within the framework of general international law.
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proportion of the Congolese population had no access to government services of any kind. The condition of Zaire (as the DRC was known before ) is best captured in the words of Herman J Cohen, former US assistant Secretary of State for Africa:
Two consequences of this governmental failure are implicit in public statements made by the three States that have fought against the DRC at least since . The first rests on the argument that the prohibition of the use of force under the Charter framework, and its organizing principles, were predicated on the existence of empirically viable political communities capable of discharging obligations under the Charter including those owed to other States. Implicit in this is the argument that the default position envisaged in the Charter was that the Security Council would take action where governmental failure posed a threat to the security interests of neighbouring States. The failure of the Council to invoke these default powers entitled aggrieved States to take self-help measures to avert further threats to their interests. The second consequence was that in so far as successive Congolese governments were undemocratic and not based on the consent of the governed, they had ceased to speak for their people and therefore lost the protection of the non-intervention norms. These arguments will now be examined in turn. In strictly formal terms the DRC/Zaire never ceased to be a State nor did it at any time fail to have a government responsible for its actions on the international plane. Since it had not formally ceased to have a government the situation was different from other so-called failed States, See H Weiss, ‘Collapsed Society, Surviving State, Future Polity’, in Zartman (n above) ; APPG Report () Visit to Democratic Republic of Congo, – August ; Christian Aid, Oxfam, Save the Children (August ) ‘No End in Sight: the human tragedy of the conflict in the Democratic Republic of Congo’. In Weiss (n above) . Dinstein, War Aggression and Self-defence, ; O Schachter, International Law in Theory and in Practice () ch . S Chesterman, Just War or Just Peace () ch , M Riesman, ‘Sovereignty and Human Rights in Contemporary International Law’ () AJIL ; F Teson, Humanitarian Intervention: An Inquiry into Law and Morality (); A D’Amato, ‘The invasion of Panama was a lawful response to Tyranny’ () AJIL . The relevant Security Council Resolutions assumed at all times the continuing existence of the Congolese State and a government responsible for its actions, see S/Res/ (); S/Res/ (); S/Res (); S/Res (); S/Res/ (), S/Res/ (); S/Res/ (); S/Res/ () S/Res/ (); S/Res/ (), S/Res/ (); S/Res/ (). This is in keeping with the strong presumption in international law against the extinction of
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To say that Zaire has a government today would be a gross exaggeration. A small group of military and civilian associates of President Mobutu, all from the same ethnic group, control the city of Kinshasa by virtue of the loyalty of the man Presidential Guard known as DSP. This same group also controls the Central Bank which provides both foreign and local currency needed to keep the DSP loyal. While the ruling group has intelligence information about what is going on in the rest of Zaire, there is no real government authority outside the capital city.
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States on which see for instance Crawford (n above) ; K Marek, Identity and Continuity of States of States in Public International Law (). See Republic of Somalia v Woodhouse Drake and Carey (Suisse) SA [] QB . In the period immediately following the collapse of the former Yugoslavia there was also no clearly identifiable governmental apparatus in Bosnia. A study has indicated that as many as States have either collapsed or are in a state of collapsing, see Carnegie Endowment for International Peace, The Failed States Index . Memorial of the DRC; Counter-Memorial of the Government of Uganda (n above). National Security Strategy of the United States () ; Afghanistan was not a ‘failed State’ as such, but the Taliban had only nominal control over large areas. The dominance exercised by Osama Bin Laden’s al-Qaeda network was in part a result of the systemic governmental ineffectiveness of the Taliban regime. Osinbajo (n above). See () UNYB ; () UNYB –; See also C. Gray and S Olleson, ‘The Limits of the Law on the Use of Force: Turkey, Iraq and the Kurds’, Finnish Yearbook of International Law () ; T Franck, Recourse to Force (). Press Release SG/SM//AFR/; S/PR.ST//.
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such as Liberia or Somalia, where for extended periods there was no identifiable central governmental apparatus, although even these were not formally extinct as States. At the same time this formal position was in marked contrast to the reality on the ground. Foreign insurgents had found sanctuary in eastern Congo precisely because there was no identifiable Congolese authority exercising public power. The pleadings by all sides to the Congolese conflict attest to this. What is the legal position when the resulting political vacuum compromises the security interests of neighbouring States? This is part of the dilemma posed by the Congolese conflict at least for States such as Uganda, Rwanda, Burundi, and Angola whose own aggravated security concerns were closely intertwined with Congo’s unfolding political drama. For these States, there was an urgent need to find an appropriate legal framework consistent with international law obligations for dealing with such security threats. The problem is not new or isolated. This was also the central problem posed by Afghanistan under Taliban rule and the resulting security concerns of the United States. It has been a recurrent feature of Somalia’s long-running civil war. The periodic absence of an effective government capable of deterring terrorists groups from using Lebanese territory to launch attacks against Israel has been a long-running feature of Israeli complaints. This justification has been invoked in form by Turkey and Iran for armed operations against Kurdish Workers Party (PKK) bases in Iraq. Turkey invoked Iraq’s apparent failure to exercise control over its northern territory, maintaining that there could be no violation of sovereignty when the exercise of sovereign powers had been totally lacking. Rwanda also explicitly argued that the DRC’s failure to prevent Hutu militia from establishing bases in Eastern Congo entitled it to resort to vigilante justice to prevent further attacks. In a press release issued at the time, the Secretary-General called on Rwanda immediately to withdraw its forces from the DRC. The absence of an effective government has also been a significant feature of the conflicts in Sierra Leone and Liberia. Yet in all these instances the arguments by the
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[N]o act of aggression within the meaning of Article II of [this] Convention can be justified on either of the following grounds, among others: A. The internal condition of a State: Eg, its political, economic, or social structure; alleged defects in its administration; disturbances due to strikes, revolutions, counter-revolutions, or civil war.
The rejection of these arguments in the Charter order rested on a conception of statehood as total and indefeasible, not affected by any diminution in its external attributes. The justification also sits uncomfortably with a Charter order based on the sovereign equality of States. Although empirical effectiveness in terms of territorial control and a viable system of administration has generally been regarded as an indispensable component of state identity, the disappearance of any of the core elements of statehood does not as such affect the territorial sovereignty of a State and the associated rights. A new entity claiming recognition as a
(SC/Res/(); SC/Res (); SC Res () SC/Res /. I Brownlie, International Law and the Use of Force by States () for an extensive discussion of these earlier precedents see –. League of Nations Official Journal (Geneva ), –; Brownlie (n above) –. But see Dinstein, War, Aggression and Self-Defence (th edn, ) who argues that extraterritorial law enforcement is compatible with the Charter, p . He notes that ‘if the government of Arcadia does not condone the operations of armed bands or terrorists emanating from within its territory against Utopia, but it is too weak (militarily, politically or otherwise) to prevent these operations, Arcadian response vis a vis Utopia (if engaged) at all may be nominal. Nevertheless, it does not follow that Utopia must patiently endure painful blows only because no sovereign state is to blame for the turn of events . . . the armed bands or terrorists in Arcadia are not cloaked with a mantle of protection from Utopia.’ The argument has also been put forward as a justification for humanitarian intervention, see Report of the International Commission on Intervention and State Sovereignty, December . LTNS, p . B Kingsbury, ‘Sovereignty and Inequality’ () EJIL . Crawford, Creation of States in International Law, n above at ; Marek (n above) .
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aggrieved States based on intervention on account of State failure were not well received by the United Nations organs to which they were presented. By affirming the continuing territorial integrity of the troubled States, the Security Council implicitly took the view that international law does not qualify sovereignty on account of general administrative failure. In the pre-Charter period chronic disorder in the territory of a State was frequently relied on as a justification for intervention by a State affected by the resulting chaos. A State had sovereignty on condition that it maintained certain standards of administration in its territory. This argument formed the basis of a United States intervention in Cuba in and the British and French interventions in Mexico in . Italy argued unsuccessfully before the League that the chronic disorder on Ethiopian territory which threatened its security interests partly justified its invasion of Ethiopia. It has however received very limited consideration as a justification in the literature since , and its compatibility with the Charter and customary law on non-use of force is questionable. As far back as Annex to Article III of the Convention for the Definition of Aggression had provided that:
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The criteria contained in the Montevideo Convention on the Rights and Duties of States of are widely accepted as containing the minimum that an entity making a claim to statehood must possess, UNTS ; see also Badinter Commission Report, Opinion No , January , () EJIL ; ILR . Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Co-operation among States in accordance with the Charter of the UN, Annex to Resolution (XXV) of the UNGA; UNGA Resolution () on the definition of aggression. In Republic of Somalia v Drake Woodhouse and another [] QB , the English High Court affirmed the continued existence of the Somali State as an entity notwithstanding the fact that it had no recognized government. Crawford (n above); Marek (n above); C Warbrick, ‘States and Recognition in International Law’ in M Evans, International Law (), ; G Kreijen, State Failure, Sovereignty and Effectiveness: Legal Lessons from the Decolonization of Sub-Saharan Africa ().
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State must fulfil empirical criteria. As a minimum, it should have an effective government. Significantly, the candidate State should also be able to carry out its international obligations including those owed to other States. This by necessary implication carries an obligation not to allow its territory to be used for subversive activities or to undermine the territorial integrity of its neighbours. Somewhat inconsistently, international law maintains that once statehood is conferred, the disappearance in total or in part of one or more of the criteria does not in any way extinguish or qualify the claim to statehood in an established State. The continued recognition of a State in international law as a rule is not dependent on its being able to maintain certain standards of administration. For this reason Somalia, DRC, Liberia, Haiti, and Afghanistan, for instance, continued to be regarded as States notwithstanding the fact that for long periods, and in the case of Somalia from the s, it was without a government. The reluctance to accept any principle of diminution of sovereign rights can in part be explained by a conception of these rights as inhering in the people and not their governments. On this reasoning any weaknesses in the internal aspects of sovereignty ought not to affect obligations owed to the population. A second reason for the reticence in acknowledging State failure as a legal phenomenon is the general absence of reliable assessment criteria. Many governments go through periods of considerable instability and this is rarely if ever accompanied by total State failure. There are also good reasons of international policy in maintaining a strong presumption against the extinction of States. A ready assumption that a State has ceased to exist is not conducive to the maintenance of an international system based on the rule of law. Existing legal literature on the extinction of States does not include operational aspects of governmental failure in the catalogue of reasons that lead to State demise. To allow intervention on account of State failure, like most justifications for intervention, is likely to license interventions based on collateral agenda. There is also a concern that such interventions as a matter of principle stand in contrast to, or even undermine, the selfdetermination of peoples.
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Uganda Counter-Memorial para ; CR/, para . Judgment, paras , , , and . Judgment, paras –. See for instance text of the Sirte Agreement (Memorial of the Democratic Republic of Congo Annex ); Uganda Counter-Memorial, vol , para ; Lusaka Agreement, July , Keesings () . In para of the judgment the Court, without going into any detail as to the legal implications, acknowledged that instability in the DRC had had negative security implications for the neighbouring States. It went on to note that these security concerns were regarded as legitimate under the Lusaka agreement, but the Court appears to regard these concerns as political and not raising distinct legal questions which could be resolved on the basis of international law. The literature in this context is vast. See Nicholas Wheeler, Saving Strangers (); S Chesterman, Just War or Just Peace (); C Chinkin, ‘Kosovo: “A good or Bad War”’ () AJIL ; D Kristiotis, ‘Reappraising Policy Objections to Humanitarian Intervention’, Michigan Journal of International Law () ; See generally I Brownlie and CJ Apperley, ‘Kosovo Crisis Inquiry: Memorandum on the International Law Aspects’ () ICLQ –; C Chinkin, ‘The Legality of Nato’s Action in the Former Republic of Yugoslavia’ () () ICLQ –; C Greenwood, ‘International Law and the NATO intervention in Kosovo’ () ICLQ –;
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In DRC v Uganda, the International Court dismissed Ugandan arguments that the de facto collapse of the Congolese State entitled Uganda to take self-help measures to protect its security interests. In its CounterMemorial Uganda had argued that it was entitled to take defensive action to deal with threats that an embattled Congolese government had been unable to prevent. The tenor of the judgment is hostile to recognizing this as an independent category for intervention. The Court observed that the powers conferred on the Security Council under the Charter were intended to deal precisely with the kind of situations that the Congolese conflict had given rise to. The Court countenanced the possibility that the Ugandan claims were valid, and observed that, even assuming the existence of security concerns on account of governmental ineffectiveness in the Congo, the evidence and pattern of Ugandan interventions were inconsistent with a protective regime necessitated by security concerns. The Court noted that the presence of Ugandan troops several thousand kilometres away from the Ugandan border was difficult to reconcile with a claim based on limited defensive self-help measures. In rejecting the Ugandan claims, the Court was particularly influenced by the existence of bilateral arrangements entered into with the DRC, in the period immediately after the overthrow of Mobutu, and subsequently, for addressing the problem of border security and insurgent operations. The judgment, however, does not enter into an independent or principled examination of the broad context of the conflict, and the dilemma presented for the Charter framework by the de facto governmental collapse and the resulting threats to international peace and security. Yet the issue remains troubling since the many threats to international peace and security emanate from political communities where the central apparatus of the State has failed. The dangers presented by an absolutist view of sovereignty have already been considered in the field of human rights and humanitarian intervention. Those debates,
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V Lowe, ‘International Legal Issues Arising in the Kosovo Crisis’ () ICLQ – C Chinkin, C Greenwood, and V Lowe, ‘Kosovo: House of Commons Foreign Affairs Committee th Report (June Memoranda’ () ICLQ . See, for instance, International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’, pp – ; Boutros Boutros-Ghali, An Agenda for Peace () para . J Chopra and TG Weiss, ‘Sovereignty is no Longer Sacrosanct: Codifying Humanitarian Intervention’, Ethics and International Affairs () ; See contributions V Lowe, C. Greenwood, and C Chinkin, ‘Foreign Affairs Select Committee, Kosovo Report ’ () ICLQ ; D Kristiotis, ‘Reappraising Policy Objections to Humanitarian Intervention’, Michigan Journal of International Law () . ‘The Responsibility to Protect’ (n above). O Schachter, International Law in Theory and Practice (Dordrecht, ) ; S Chesterman, Just War or Just Peace? ().
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although inconclusive, nevertheless indicate a softening of the absolutist view and a willingness to accept that claims of sovereignty may in particular contexts give way to humanitarian concerns. There is a broad recognition by writers that intervention may be permissible to protect other Charter values especially in the presence of widespread or systemic abuse of human rights or in the face of humanitarian catastrophes even without the consent of the territorial sovereign. Discussions have been characterized by concerns about quality control—to ensure that only genuine interventions take place. The recognition that sovereignty is not absolute has also affected the UN administration of territory within the context of post-conflict State building. The Court’s reluctance to countenance the possibility that governmental failure might entitle neighbouring States to adopt forcible self-help measures is broadly in line with the restrictive view that has characterized much of its jurisprudence on the use of force. There are nevertheless cogent reasons why this restrictive approach needs to be re-examined. Clearly these situations constitute threats to international peace and security. In the absence of an organised multilateral framework for responding to governmental failure, the argument for individual States to take self-help measures seems stronger. There are signs that the traditional position is being challenged. The argument has been made that these States ‘violate the substantive UN membership requirement in article of the UN Charter that they “are able to carry out” their obligations’. In this sense statehood is seen as encompassing not just a bundle of rights but also reciprocal responsibilities. A State that fails to discharge such obligations, for instance by allowing its territory to be used as a base by rebels, implicitly waives the right to insist that its sovereign rights must be respected. However there is little evidence to support the thesis that the Charter’s obligations were intended to be conditional upon a State maintaining a certain level of administrative capacity in its territory. This argument has repeatedly appeared in other contexts and been rejected without exception. That States might be unable or fail to discharge their obligations was envisaged in the Charter, whose default position was to entrust the Security Council with
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See S/PRST//, S/PRST//, SC Res ) ) adopted on September ; SC Res () adopted on November ; SC Res () adopted on November ; SC Res () adopted on November ; SC Res adopted (), adopted on April ; SC Res (); SC Res () adopted on October ; SC Res () adopted on October ; SC Res () adopted on December . SC Res , , , and . See Crawford, Creation of States in International Law who acknowledges the problem as one of governance but without necessarily accepting the expansion of non-intervention norms as a logical alternative (n above). Clark (n above), introduction; UKAPPG (n above).
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responsibility to take measures for the collective good. Yet apart from a series of hortatory resolutions on Congo’s conflict, the Council did not adopt any measures that could have averted the security threats that were of concern to the intervening States. Far from addressing these concerns, the Council unreservedly reaffirmed the sovereignty of the DRC and called on all uninvited foreign forces to leave the DRC. It is possible that the Council was in part influenced by a strategic understanding that the continued presence of the foreign forces in the DRC was in itself aggravating international peace and security in the region. What is clear is that the security threats raised by Congo’s neighbours reveal a discernible gap at the heart of the Charter in failing to provide a coherent, intellectually sustainable response to security threats posed by State failure or precipitated by governmental loss of authority. The insistence that statehood as a juridical concept is not defeasible even when governmental effectiveness has all but disappeared fails to provide a defensible framework for dealing with threats from those entities with an anti-social international agenda. One solution is to accept the possibility that, where the normative concept of statehood is not matched by empirical effectiveness, then, in the absence of UN or regional agency intervention, affected States should retain for themselves the right to take limited self-help measures to deal with the resulting threats. The real problem though is one of providing qualitative criteria if interventions are to be genuine and not based on collateral political agenda. In the Congolese conflict, there are strong suggestions that security concerns were a pretext for interventions driven by a desire to exploit Congo’s mineral resources, and a grand plan on the part of Uganda and Rwanda to change the geo-political map of the Great Lakes region by installing like-minded regimes. There is also a threshold problem: How ineffective should the central government be before intervention becomes permissible? How serious should the security threats be and how far should the putative victims be allowed to go in dealing with the source of threats? Clearly this cannot extend to overthrowing the government of the State and installing in its place one perceived to be sympathetic or more competent in dealing with security threats. By assisting in the overthrow of Mobutu, and embarking on a campaign to overthrow Kabila, the interventions by Uganda,
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Burundi, and Rwanda went beyond their immediate security needs, and would not be justified under this rubric. . C ’ R : I G
Garreton Report (n above). See Seventh Report of the Secretary General on MONUC, April S//; Eighth Report of the Secretary General on MONUC S//; Ninth Report of the Secretary General on MONUC S//; Tenth Report of the Secretary General on MONUC February S//; United Nations Security Council, First Assessment of the armed groups operating in the DRC, s//; Third Special Report of the Secretary General on the United Nations Organization Mission in the Democratic Republic of the Congo, S//, paras and ; Report of the Special Rapporteur on Human Rights in the Democratic Republic of Congo (Garreton Report); Counter-Memorial of the Government of Uganda, paras –.
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It is has been noted that in the period of paralysis that accompanied the Congolese conflict, governmental functions including day-to-day aspects of civil administration were carried out by various rebel groups in the areas under their control. In his Report, the Special Rapporteur for Human Rights, Roberto Garreton documented at least armed groups as actively involved in the conflict in the DRC. The three most significant rebel groups referred to previously, were known by their French acronyms RCD-Kisangani, RCD-Goma, and MLC. The three groups between them managed to secure control of at least per cent of Congolese territory. Crucially each of the three groups was able to set in place a system of civil administration or carry out the day-to-day functions of government through local agencies that had previously taken orders from Kinshasa. A central issue that permeated the conflict was the very extensive military support allegedly given to these groups by Uganda and Rwanda and its compatibility with the applicable rules of international law. There are three distinct issues: the first arises in the context of non-intervention norms and whether the de facto exercise of governmental authority by rebels would offset any presumed illegality where foreign state intervention has ostensibly taken place on the invitation of Congo’s rebels. The central question is whether international law as it stands entitles insurrectionists in certain situations to waive the applicability of non-intervention norms or consent to the presence of foreign troops, at any rate where the central government has lost control of territory. If indeed such a waiver is legitimate in certain situations, what are the normative implications of its application under the existing regime of jus ad bellum? The second issue relates to the validity of contractual undertakings, in particular those relating to the exploitation of natural resources, ostensibly entered into by rebels and for the benefit of foreign governments (including the intervening States) and foreign multinational corporations on the presumed authority of rebel administrative control of the territory.
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See in particular chapter of the Reply, especially paras .–.. See also oral pleadings, arguments of Mr Sands, CR /, esp. pp and –. CR / pp – and arguments of Mr Salmon CR / p . See in particular Arts and . Zevgeld (n above). See Art which provides that: ‘The conduct of a person or group of persons shall be considered an act of State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.’ ‘Article : The conduct of an insurrectional movement which becomes the new government of a State shall be considered an act of that State under international law. The conduct of a movement, insurrectional or other, which succeeds in establishing a new State in part of the territory of a pre-existing State or in territory under its administration shall be considered an act of that State by virtue of articles –. This article is without prejudice to the attribution to a State of any conduct, however related to that of the movement concerned, which is to be considered an act of that State by virtue of articles –’. Article dealt with the situation where the delictual conduct was acknowledged and adopted by a State as its own. It provides that: ‘Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.’ Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of its Fifty-Third Session, UNGAOR, th Session, Supp. No. , UN Doc.A// () in J Crawford, The International Law Commission’s Articles on State Responsibility () –.
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In the litigation before the International Court of Justice, the challenge to the exploitation of Congo’s resources by Uganda was an argument that such undertakings were prima facie illegal and incompatible with the ‘principle of a people’s permanent sovereignty over their natural resources’ or other obligations of Uganda under the law on belligerent occupation. Implicit in this argument was a denial that there were situations where a government’s plenary powers could be exercised by rebels with decisive consequences on the international plane. The third issue relates to the framework of accountability for the violation of human rights and humanitarian norms in rebel control territory. In general the obligations in both fields are obligations of the State, underlined by the Vienna Convention not envisaging the conclusion of treaties by insurrectionists. Yet the presumption that a State would ensure compliance with these obligations by all under its jurisdiction is inapplicable where there has been extensive loss of control over the territory. The broad recognition that the core of humanitarian law principles applies to all parties in situations of armed conflict has not, however, been accompanied by sound reasoning for such accountability outside the framework of international criminal responsibility. The framework of accountability for rebel conduct during a period of insurgency was considered by the International Law Commission (ILC) in three separate draft articles, although the legal consequences of rebel control of territory remain problematic both from the perspective of jus ad bellum and the law on international responsibility. The Commission considered the situation where the rebels/insurrectionists were successful, and became the new government of the State. Here the presumption
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At all times governmental administration in the rebel-held territories was performed by the rebels themselves, through the local and regional administrative The commentary to the draft articles acknowledges the existence of such responsibility as a matter of principle. However it was felt that an extensive treatment of such responsibility was out of place in a set of draft articles concerned with the responsibility of States. See commentary to Draft Articles, in Crawford (n above). R Jennings and A Watts (eds), Oppenheim’s International Law (th edn, ) vol I, ; C Gray, International Law and the Use of Force by States (nd edn, ) . Military and Para-Military Activities in and Against Nicaragua [] ICJ Rep paras –. The absence of governmental presence in the areas under rebel control was also to a large extent acknowledged in the Congolese pleadings. See for instance Reply of the DRC, para .. Uganda Counter-Memorial paras – and .
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was that their responsibility was retroactive, including acts committed by them during the period of insurgency. The legal consequences where the rebels are unsuccessful in displacing the government, or are incorporated into the established government as part of the peace settlement, were not dealt with decisively. In relation to colonial wars and self-determination conflicts analogous to those undertaken in the context of decolonization such as against racist or oppressive regimes, it was generally accepted that support to such rebel groups, including possibly armed support, was permissible in international law. Outside the decolonization context, however, there is in general no recognized exception in the international law of jus ad bellum authorizing foreign States to give support to insurrectionist movements in their fight against the established government. In its landmark judgment in the Nicaragua case, the International Court of Justice was emphatic that that the principle of non-intervention would lose much of its force if support available to the government on invitation was made available to the opposition as well. In the case brought by the DRC against Uganda, Uganda sought to argue for the existence of another exception to the non-intervention norms, in situations where rebel groups had acted as de facto governments and in the absence of any challenge from the established authorities. Uganda had argued that its activities in the DRC, including support to the alleged rebel groups, must be assessed in the context that these groups were exercising governmental functions in areas under their control, and in the absence of any credible challenge from the government in Kinshasa. Implicit in this argument was that the rebels should either be treated to as de facto governments, and not mere insurgents; or that international law in some form should give legal sanctity to rebel conduct in the unique circumstances of the Congolese conflict. That any assistance given to the so-called rebels, far from contravening the non-intervention norms, was broadly consistent with assistance to a government at its request. In the alternative, Uganda maintained that the realization of its self-defence objectives required cooperation with the rebels as the effective administrative authorities in the areas under their control. In its written pleadings Uganda observed that:
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structures that they established. Since there was no DRC Government presence of any kind in the rebel controlled areas after August , when the war broke out, the MLC and the RCD effectively constituted de facto governments in their respective zones of operation. From time to time, and upon the request of these de facto governments, Uganda provided limited assistance to them.
[T]he question who may give the State’s consent arises in the context of revolutionary groups. Under draft article , the acts of insurrectional movements that become the new government of a State are to be regarded as acts of the State. A desire for theoretical consistency might suggest that expressions of ‘consent’ by insurrectional governments be treated in the same way. Typically, that consent might relate to intervention by forces of a third State in support of the insurrection, or non-fulfilment of a treaty obligation owed by a third State to the insurrectionists’ State. It is generally neater to have all aspects of international responsibility that concern the acts of insurrectionists determined on the basis of the same principles.
The ILC, however, did not regard it as appropriate that the conduct of rebels should have any decisive legal consequences except for those situations where the revolution was in fact successful or in relation to acts which could be regarded as implicitly authorized by the established government in the
Rejoinder submitted by the Republic of Uganda, para . Art of the draft articles adopted by the ILC in provides that: ‘. The consent validly given by a State to the commission by another State of a specified act not in conformity with an obligation of the latter State towards the former State precludes the wrongfulness of the act in relation to that State to the extent that the act remains within the limits of that consent’ (the provision became Art. in the draft articles finally adopted in ). See Global and All-Inclusive Agreement (n above). See Government Comments on the Draft Articles adopted on First Reading by the Commission () Comments by the UK, paras –.
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There is little dissent from the view that intervention of foreign forces with the consent of the established government is broadly consistent with the legal framework prohibiting the use of force and the sovereignty of States. Uganda’s argument was novel in that such consent must generally emanate from the recognized governmental authorities in the territory in question. Yet if international law has recognized that there are situations when the conduct of insurrectionists may in a post-conflict situation be equated to those of a government, it does not seem wholly illogical that consent given by them during a period of insurgency to the presence of foreign forces should offset any presumed illegality under the law on jus ad bellum. In the case of Congo’s war it is particularly poignant that the rebel groups were incorporated into a government of national unity as part of the post-conflict political settlement with each of the rebel leaders appointed to the position of vice presidency of the Congolese State. The commentary by the UK Government to the draft articles submitted by the ILC in envisaged a similar legal effect. In commenting on Article on consent (subsequently Article ) in the articles finally adopted in , the UK Government observed that:
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[T]he conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.
This provision was relied on by Uganda in support of its contention that the Congolese rebels should be treated as de facto administrative authorities, rather than mere outlaws whose conduct fell outside any regulatory scheme of international law. Two consequences followed from Uganda’s arguments. The first was to suggest that the rebels alone should bear responsibility for non-compliance with human rights and humanitarian norms committed in areas under their control during the armed conflict. It is however curious that counsel for Uganda did not elaborate the precise legal basis of such responsibility—the obligations in question as a matter of positive law remained obligations of the Congolese State. The second was to suggest that Uganda’s conduct in relation to the exploitation of Congo’s natural resources should be assessed within the broad context of the fact that the exploitation was contractually mandated by
The potential instability likely to be generated by a rule permitting insurgents to depart from obligations owed to their parent State was however not lost on the UK Government, see in particular para of the comment. Text of the Articles adopted by the ILC on August . (n above).
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specific situations envisaged under Article of the draft articles adopted in . The reticence is understandable as any general rule permitting intervention on the basis of invitation by insurgents would encourage the evasion of the rules at a time when their protective mechanism is most desired. But what if there is no longer any government in place that could claim to be the beneficiary of the non-intervention norms? What is the position when day-to-day governmental functions are in effect carried out by well-organized insurgencies in control of territory? It seems highly theoretical that even in these situations a non-existent government should alone be regarded as the beneficiary of the non-intervention norms. In the ILC, as well as in the Nicaragua judgment, the dangers inherent in allowing insurrectionists to modify the obligations owed to their parent State in the field of non-intervention were highlighted. But the very real dangers presented by the existence of a power vacuum were not considered. Quite apart from issues within the framework of jus ad bellum, a second broad category of issues relates to the legal framework of responsibility for assessing the day-to-day administrative tasks carried out during the period of paralysis that accompanied the governmental loss of authority in the Congolese State. The ILC had envisaged a framework of accountability in the draft articles adopted in . On this point Article is pertinent and provides that:
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Congo’s rebels in areas under their control as de facto administrative authorities. Evidence was provided that the Congolese Government, as a rebel organization, then known as ‘Alliance of Democratic Forces for the liberation of the Congo’ (AFDL), in control of territory had taken the position that it was entitled to grant concessions and license operations in the areas under its control. The Ugandan pleadings emphasized that the DRC:
The idea that private groups or insurgents may carry out day-to-day administrative tasks in the absence of a functioning government, and may engage the responsibility of the State, has some support in the literature and in state practice. There is nevertheless the expectation that the acts in question should either be implicitly authorized by the established government, or that they should relate to routine administrative tasks, which may be justifiable under the doctrine of necessity even in the absence of express or implicit authorization by the established government. The recognition of rebel activity under the traditional categories of insurgency and belligerency was strictly speaking restricted to what was absolutely necessary for the protection of the sovereign interests of the intervening States in matters affecting their nationals or their property. Insurgency or belligerency as a category was never intended to be equated to governmental authority in all respects, and the predominant attitude in international law was to privilege the position of the established government. In the Congolese conflict, not all the acts of the rebels in question could be justified on the basis of necessity—in particular with respect to the validity of mineral and other Uganda Counter-Memorial, paras – and ; Rejoinder Submitted by the Republic of Uganda, vol I, paras , , , , –, , and . Colette Braeckman, L’Enjeu Congolais: L’Afrique Centrale après Mobutu () . Rejoinder submitted by the Republic of Uganda para. . Uganda went on to argue that this de facto position was confirmed in terms by the Lusaka Agreement which gave the Congolese Government, and the rebel organizations MLC and RCD equal status. Above paras and . H Lauterpacht, Recognition in International Law (); Creation of States in International Law (n above); Roth, Governmental Illegitimacy in International Law (n above) –. ibid at .
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[A]fter August , . . . maintained no administrative presence and exercised no authority whatsoever in the eastern and north-eastern regions of the country in which Ugandan troops later operated’ (DRCR para .). Although the central Congolese Government’s presence and authority in those regions were always scant, they evaporated completely with the outbreak of the rebellion against President Kabila in August . By the end of that month, the rebels occupied and controlled almost half of the DRC. In more than four years since the rebellion began, the central government has never reclaimed its authority or re-established a presence in the rebel controlled areas. Thus the MLC and RCD which have continuously occupied and administered these areas, are no mere rebel organizations; for over four years they have been, and remain, the de facto governments of the regions they control.
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[T]he only valid claims before the Court are the ones brought by Uganda as counterclaims against the DRC. With respect to those, the evidence presented in the counter-memorial . . . shows conclusively : that the DRC bears international legal responsibility for cross-border attacks by anti-Uganda insurgents operating from Congolese territory that Uganda has been forced to endure since ; and () that the DRC is equally responsible for the Congolese army’s unprecedented assault on and seizure of the Ugandan embassy in Kinshasa as well as uncivilised attacks on Uganda diplomats . . . in sum the DRC has failed to show that Uganda’s military intervention in the DRC [was] anything other than Uganda’s exercise of its inherent right to self-defence against grievous and imminent threats to her security-threats that the DRC herself has acknowledged on repeated occasions.
The legal landscape was also complicated by the fact that Congo’s insurgents did not fall within the category of successful revolutionaries— the consequences of which are dealt with in the ILC reports—nor were they defeated. Their incorporation into the DRC’s government of national unity as part of the political settlement was studiously silent on who should bear responsibility for their conduct during the period of the armed conflict. In failing to address this issue directly the Court failed to countenance the possibility that there may be more than one entity entitled to exercise governmental authority within a State. It is true that international law has
See generally Rejoinder submitted by the Republic of Uganda, vol I, December . See Global All Inclusive Agreement, n .
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natural resource exploitation deals, entered into by the rebels for the benefit of third States. Yet as in the context of jus ad bellum issues discussed above, it is an open question whether rebel conduct in the administration of territory should in fact attract some consequences in those situations where prolonged armed conflict has resulted in a complete power vacuum. Curiously, the judgment of the International Court of Justice in the case brought against Uganda does not directly address the question of what legal consequences attach to rebel administration of territory either as a matter of jus ad bellum or under the law of international responsibility. Part of the difficulty lies in the fact that although Ugandan arguments in the pleadings touched on this question, it did not form part of their formal submissions in the Counterclaim nor was the Court directly called upon to make a finding of where responsibility lies in international law where insurgents are in control of territory in the unique circumstances of de facto governmental collapse. The Ugandan Counterclaim was essentially limited to its alleged right to take action by way of self-defence against the DRC and not on the basis of some entitlement based on consent given by the Congolese rebels as de facto administrative authorities. In summing up the essence of the Ugandan case, the Counterclaim had provided that:
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generally favoured the status quo in continuing to recognize established governments even in the face of considerable loss of effective control. As Lauterpacht states:
But the status quo in favour of the established government may be open to challenge. The literature on recognition of insurgency and belligerency, as well as the practice in internal conflicts, clearly indicates that third States cannot always be expected to be indifferent to the outcomes of internal power struggles. The degree of power and control exercised by rebel groups over territory may in fact force a choice on third States dealing with them. It seems unrealistic to argue that such a choice has no consequence on the non-intervention norms or whether rebels in such a position cannot be entitled to some kind of quasi-governmental status with normative implications under the law of international responsibility. The existing literature in international law has had no difficulty in accepting that where there is a substantial degree of governmental involvement in the activities carried out by the rebels, the government in question may be held responsible for the conduct of the rebels on an analogy with the law of agency. The test to be employed in assessing the required degree of governmental involvement has not however been precisely defined. In the Nicaragua judgment, the International Court of Justice had insisted that it must be demonstrated that the groups had acted under the direction and control of the state for the conduct of rebel groups to be attributed to a State. The Court held: For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.
Lauterpacht (n above) –. See for instance UK APPG, ‘The OECD Guidelines for Multinational Enterprises and the DRC: Interim findings’ (Annex to letter of December ) on the dilemma faced by foreign companies operating in rebel held territories of the DRC. Military and Paramilitary Activities (Nicaragua v United States) () ICJ at –; paras –; see also separate opinion of Judge Ago, –; ILC Articles on State Responsibility, Art (n above).
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So long as the revolution has not been fully successful, and so long as the lawful government, however adversely affected by the fortunes of the civil war, remains within the national territory and asserts its authority, it is presumed to represent the State as a whole . . . it is entitled to continued recognition de jure so long as the civil war, whatever its prospects, is in progress. So long as the lawful government offers resistance which is not ostensibly hopeless or purely nominal, the de jure recognition of the revolutionary party as a government constitutes premature recognition which the lawful government is entitled to regard as an act of intervention contrary to international law.
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International Criminal Tribunal for the Former Yugoslavia (Appeal Chamber) Prosecutor v Tadi´c, ILM () and . T Ruys and S Verhoeven, n above; AJJ De Hoogh, ‘Articles and of the ILC Articles on State Responsibility: The Tadi´c Case and Attribution of Acts of Bosnian Serb Authorities to the Federal Republic of Yugoslavia’ () BYIL ; C Greenwood, ‘International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida, and Iraq’, San Diego International LJ () . Judgment of December , paras – and . Para of the Rejoinder. Para of the Rejoinder.
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In Tadi´c, the International Criminal Tribunal for the Former Yugoslavia, appeared to be applying a lower standard by requiring no more than the overall control of the State whose responsibility is called into question. In the literature the view has been expressed that Nicaragua rather than the Tadi´c case reflects the applicable standard in general international law, the Tadi´c case having been formulated for the specific requirements of criminal responsibility. However, in the absence of such linkages there has been very little consideration of where responsibility lies for rebel activity, and the consequences of such responsibility for non-intervention norms which have traditionally favoured the established government. In DRC v Uganda, the Court entertained some doubt as to the exact degree of control exercised by rebels over territory under their putative jurisdiction, although it accepted that they were in many respects the de facto administrative authorities in those areas as contended by Uganda. However, the issue of principle as to the precise legal consequences of such control was an important one and should have been given extended treatment. The Court’s reticence is a reflection of a particular view of the nature of the judicial function which has characterized much of its jurisprudence. On this view the Court could only properly pronounce on those issues that had formed a part of the parties’ final submissions in the pleadings. The Ugandan final submissions in the Counterclaim had never explicitly called on the Court to exonerate their conduct on account of the fact that they had acted either on the invitation or with the consent of Congo’s rebels as de facto administrative authorities. Presumably the Court did not regard it as within its remit to offer an hypothesis as to who should bear responsibility for violations of international obligations in rebel-controlled territory or the normative implications of such control for third States under jus ad bellum when it had not been specifically asked to do so. Yet this formalism is unhelpful in the context of a dispute which had been defined in almost all material respects by rebel activities. The development of international law in these contested and uncertain areas may well require an interventionist approach on the part of the Court if the law is to meet the changing needs of the international society.
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. M ’ U L N - I N
[T]he Congo has never denied that, for a period of time, it allowed Ugandan soldiers to operate occasionally on its territory, following the accession to power of the Government of Laurent-Desire Kabila. This tolerance is readily explicable, if it is remembered that the Ugandan army had actively contributed to the assumption of power by that government and that the Congo itself was at the time experiencing security problems. But this tolerance ended on th July , when president Kabila demanded the withdrawal of Rwanda troops, while pointing out that that marked . . . ‘the end of the presence of all foreign military forces in the Congo’.
None of the parties to the case raised arguments based on the clean hands doctrine but arguably the doctrine was operative in so far as Kabila’s government was bringing a case in respect of illegal conduct which it had itself benefited from under different circumstances and
DRC v Uganda n above; DRC v Burundi n above; DRC v Rwanda n above. In its pleadings before the International Court of Justice, Uganda maintained that it had only given moral support but this was contradicted by Congo’s own statements which acknowledged Uganda’s support in the overthrow of Mobutu. See Uganda Counter-Memorial, p , and oral pleadings of the DRC, arguments of Mr Kalala CR / (translation), para . It has been widely maintained that Kabila’s forces lacked the organizational structure to overthrow Mobutu’s government and could not have succeeded without the extensive military support from Rwanda and Uganda, Clark chs and (n above). In its judgment of December in relation to the case brought by the DRC against Uganda, the Court took the view that although it would bear in mind the overall context of the conflict, it would confine itself to the specific issues submitted by the parties for decision, judgment para . The marked formalism exhibited by the Court is most unhelpful in a conflict with so many interrelated facets. CR /, para .
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The few commentaries on Congo’s war, as well as the cases brought by the DRC before the International Court of Justice, focus on the period after . It is true that both Uganda and Rwanda in their pleadings, as well as in other public statements, maintained that their security concerns could be traced as far back as during the period of President Mobutu’s reign. However, almost all the parties to the conflict maintained a remarkable silence over the legality of their own intervention in the civil war that led to the overthrow of Mobutu, and victory for Kabila’s allied democratic forces. In the pleadings, the Court was not called upon to scrutinize the processes by which Kabila’s Government came to power. There is, however, a question as to whether this scrutiny was outside the Court’s remit once it decided that it had jurisdiction to entertain other aspects of the case. Curiously, in the oral pleadings before the Court, the DRC made an explicit recognition of the role played by Rwanda and Uganda in the overthrow of Mobutu and the succession by Mr Kabila. In oral arguments, counsel for the DRC observed that:
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It is estimated that around million people (half the country’s population) were murdered in the Congo Free State (the territory that was later to become Zaire (DRC) was under the rule of Leopold II of Belgium from onwards until Belgium took it over as a colony in making it one of the most horrific genocides in the twentieth century. Most of these deaths occurred through the administration of a forced labour policy, mainly for the extraction of rubber in the forests of the Free State. Sadly, this and much of Congo’s subsequent violent history has been ignored in historical accounts and legal literature. It does, however, reveal a pattern that has persisted for most of Congo’s post-independence history of foreign involvement in its internal affairs and almost always with a collateral interest in exploiting its mineral resources. For illuminating accounts, See Report of the British Consul, Roger Casement on the administration of the Congo Free State, British Parliamentary Papers (), lxii, CD (); Adam Hoschschild, King Leopold’s Ghost: A Story of Greed, Terror and Heroism in Colonial Africa (). See also JO McCaplin, ‘Historicity of a Crisis: The Origins of the Congo War’ in Clark (above n ) . See UK AAPG on the Great Lakes and Genocide Prevention (visit to Democratic Republic of Congo – August ) (n above) ; Oxfam Briefing Paper, ‘Poverty in the Midst of Wealth: The Democratic Republic of Congo’ (January ) ; G. Nzolongola-Ntalaja, The Congo From Leopold to Kabila (Nordic Africa Institute: Current African Issues, no , ) . On attempts at secession by the Congolese province of Katanga and UN involvement, see R Simmons, Legal Problems Arising from the United Nations Military Operations in the Congo () –; DW Bowett, United Nations Forces () –; Crawford (n above) ; SC Res , November (–:); See also Advisory Opinion on Certain Expenses of the United Nations [] ICJ Rep and . For an account see G Nzolongola-Ntalaja, The Congo From Leopold to Kabila (Nordic Africa Institute: Current African Issues, no , ) ; and .
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which formed part of the factual matrix of the proceedings before the Court. Congo’s conflict, however, had a much earlier history before Mobutu’s overthrow in . For most of its history, the Congo has been plagued by violence. The extensively documented accounts of genocide under King Leopold of Belgium’s rule are beyond the scope of this study. Most of this violence is closely intertwined with interest in the exploitation of its vast mineral resources. The conflict in part has its origins in colonial policies of divide and rule, which were designed to aggravate pre-existing tensions with a view to facilitating the exploitation of mineral resources. The desire to control the country’s vast mineral resources plunged the Congo into civil war soon after independence, following an army mutiny and the attempted secession by its mineral rich province of Katanga. The rebellion was crushed following controversial UN involvement. The Katangalese leader, Moise Tshombe, agreed to end the secession and was himself appointed Prime Minister in July . However, the following year the country’s President, Patrice Lumumba, was assassinated by troops loyal to the army chief Joseph Mobutu. The next major landmark in this turbulent history was the seizure of power by Joseph Desire Mobutu in . He renamed the country Zaire and for the next years ensured his hold on power by allowing the Congo to be used as a base for operations against Angola’s communistbacked government of Eduardo dos Santos. In this he proved an invaluable ally of the United States, in the Cold War politics of the s and
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s. No elections of any kind were held for the long period that Mobutu was in power, and although Mobutu finally bowed to donor pressure and conceded to multi-party politics in , the country remained firmly under his grip, the first elections being held in July . Mobutu’s long reign has been described in the following terms by a Congolese scholar:
Yet despite this long catalogue of human rights abuses and a lack of commitment to any system of democratic governance, the position in international law was clear. Mobutu’s government was the government of Zaire. Indeed the legal quality of Mobutu’s regime did not diminish, nor was it in any way qualified on account of the fact that it did not maintain any semblance of authority in many parts of Zaire, especially in the East. The effectiveness of control insisted upon by international law is relative. Thus, in relation to existing States, the requirement that any claim to statehood must be backed by the existence of an effective government is usually presumed, and the position of the State in international law would remain unaffected even if for prolonged periods there was effectively no central body exercising governmental authority. States remain beneficiaries of non-intervention norms notwithstanding their internal weaknesses. Although arguments have from time to time been made that only governments that are democratic or based on the consent of the governed should enjoy the protection of non-intervention norms,
Clark, The African Stakes of the Congo War (n above) . For an account of Mobutu’s long rule as well as the atrocities committed during this period, see G Nzongola-Ntalaja, The Congo: From Leopold to Kabila (Nordic Africa Institute: Current African Issues, no , ) ch . ibid. Tinoco Arbitration () RIAA ; Short v Islamic Republic of Iran, ILR () ; Warbrick n above at and ; S Talmon, Recognition of Governments in International Law () ff; RH Jackson and C Rosenberg, ‘Why Africa’s Weak States Persist: the Empirical and Juridical in Statehood’ World Politics () at ; RH Jackson, Quasi-States: Sovereignty, International Relations and the Third World () ; G Kreijen, State Sovereignty and International Governance () –.
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The Mobutu regime began as a military dictatorship with the entire army high command making up the junta. But it soon acquired all the characteristics of personal rule then found elsewhere in Africa: a one party dictatorship under the authoritarian rule of a single individual. Mobutu’s power was so absolute that he could do anything his heart desired. An accomplished Machiavellian, he used his ill gotten wealth and his powers of patronage to outfox potential opponents and to keep wavering officials in line. At the same time, he did not hesitate to use force when it could best serve his purpose. And he did so with such ferocity and regularity that in addition to corruption, gross violations of human rights, including assassinations, extrajudicial executions, massacres of unarmed civilians and banishment to remote penal colonies became the defining characteristics of the Mobutu regime. He thus succeeded in demobilizing the mass democratic movement, the result being that until organized opposition to the regime could take place only from outside the country.
D I M E N S I O N O F A P R O T R AC T E D C O N F L I C T
The Security Council expresses its support for the people of the DRC as they begin a new period in their history. The Council respects the legitimate national aspirations of the people of the DRC to achieve peace, national reconciliation and progress in the political, economic and social fields to the benefit of all, and opposes any interference in its internal affairs.
It is true that the same resolution confirmed the sovereignty and territorial integrity of Zaire, and called on all external forces to leave. However, there was no censure of the intervening States or disapproval in terms of the non-intervention norms for the political processes by which Kabila was installed into office. It is difficult to argue that the Security Council was taking a principled stand in favour of intervention. The relevant debates in the Council reveal that the matter was not considered at length. A more plausible explanation was that the Council was acquiescing in an acceptable political outcome in relation to a conflict which it had failed to engage with in any meaningful way. Although it had maintained a nominal presence throughout the conflict, the Security Council’s active involvement under the auspices of MONUC did not in fact begin until after the ceasefire agreement of . As such the resolution would appear to be neutral on the question of legality. A second possibility is that there has been a monumental shift in the attitude of international law to undemocratic regimes, and that the Roth, ch (n above); Warbrick (n above) at ; Crawford, ‘Democracy and International Law’ () BYIL –; Crawford (n above) –; S Talmon, ‘Recognition of Governments: An Analysis of the New British Policy and Practice’ () BYIL and –; S Marks and A Clapham, International Human Rights Lexicon () –. [] ICJ Rep at –. See in contrast dissenting opinion of Judge Schwebel, [] ICJ Reports at –. See S/PRST//. SC/Res//.
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no general principle of legitimism has found universal acceptance. In the Nicaragua case, the International Court of Justice had to consider United States arguments that its support for Nicaraguan contra rebels was justified because the Nicaraguan government had itself reneged on commitments made to the Organization of American States that it would put in place a democratically based system of government. The Court was not persuaded by the logic of this argument. The tenor of the judgment was markedly hostile to the idea that commitments made by Nicaragua to a regional organization were justiciable, or that reneging on those promises could entitle a third State to try to enforce them through military intervention. The Court emphasized that the implementation of those commitments was a matter of domestic policy which the United States could not enforce by military intervention. Yet Mobutu’s overthrow was greeted with euphoria by most of the international community and tacit approval by the United Nations Security Council. At its meeting held on May , the Security Council issued the following statement:
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See, for instance, Crawford (n above); GH Fox, ‘The Right to Political Participation in International Law’ Yale International Law Journal (). There are other examples of the Security Council taking steps in the cause of democracy. A notable example is the authorized use of force by the Council to overthrow the military junta in Haiti and restore the democratically elected government of Father Aristide. See Security Council Resolution of June , SC Res (). See Clark (n above) ch . See Report of the Investigative Team into Human Rights and International Humanitarian Law Abuses committed between March and March in a letter of the Secretary-General to the President of the Security Council S//; Amnesty International, ‘DRC; a Long-Standing Crisis Spinning Out of Control’ . The Court’s pronouncement on the erga omnes character of obligations remains exceptional. See Barcelona Traction case (Second Phase) [] ICJ Rep at , paras –.
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Security Council’s apparent indifference to the overthrow of Mobutu is in fact a manifestation of a more proactive engagement in the course of democracy. Regimes like Mobutu’s are therefore subsumed in the same category as those ruling over colonized peoples, and use of force for the purpose of overthrow an exceptional suitable remedy. This argument is however difficult to sustain as a matter of principle and in the specific context of the DRC. There is considerable evidence that Kabila’s replacement government was not democratic. Until Kabila was plucked from relative obscurity by Ugandan and Rwandese forces, he was a minor warlord with little national appeal. The human rights abuses committed by Laurent Kabila’s Government were in any event on par with those committed by other rebel groups and the intervening forces involved in Congo’s war. A report of a UN Secretary-General’s investigative team into atrocities committed in Zaire between and found serious abuses of human rights and international humanitarian law by Kabila’s forces. The report noted that some atrocities amounted to acts of genocide. That the council was simply acquiescing in what it perceived to be an acceptable political outcome therefore seems a more realistic explanation than a perceived radical shift in the attitude of international law to undemocratic regimes. The International Court of Justice’s silence over the legality of Mobutu’s overthrow is in keeping with the formalism it adopted in dealing only with those questions that directly formed part of the dispute submitted by the parties. Yet the interventions were an inescapable part of the complex factual matrix that underpinned all subsequent interventions, and any meaningful settlement of the dispute had to start with how the Ugandan and Rwandan forces found themselves in the Congo in the first place. It is strikingly unsatisfactory that in the case brought against Uganda, the Court considered the question of the alleged Congolese consent to the presence of Ugandan troops and the conditions on which it was made without making an a priori determination whether it was legitimate for foreign forces forcibly to overthrow an established government in another State. A more charitable explanation is that by the time the applications against Uganda and Rwanda were filed before the International Court of Justice, the overthrow of Mobutu and any potential legal ramifications
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were without object. The Court was thus simply recognizing that the new established constitutional order under Kabila’s leadership was in fact irreversible. . S - D R A C ’ S W ( – ) A. The Issue of Consent
On which see Northern Cameroon case judgment of December ; and Nuclear Tests cases [] ICJ Rep –. This much was accepted by the DRC in its Memorial, Memorial of the DRC, paras ., ., and .; Counter-Memorial submitted by the Republic of Uganda, Chapters XVI and XVII. Uganda Counter-Memorial, pp –; and arguments of the Attorney General of Uganda, Oral pleadings, CR /, pp –. Lusaka Cease-fire Agreement for the DRC, July , UNYB Keesings () . Case Concerning Armed Activities on the Territory of the Congo, Rejoinder Submitted by the Republic of Uganda, vol I, para . There is extensive support in both the literature and state practice
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The allegations of aggression and self-defence on the part of all the parties to the Congolese conflict are compounded by ancillary claims on the part of Uganda and Rwanda that the presence of their troops in Congolese territory, at least in the initial period, was on the basis of express invitations by the Congolese authorities. Laurent Kabila had come to power on the basis of extensive military support from Uganda and Rwanda. The two governments were allowed to maintain their presence partly to secure Kabila’s hold on power, but also to repel potential attacks by anti-Uganda and Rwandan insurgents operating from Congolese territory. The fallout between Kabila’s Government and his former allies raised the issue of the legal consequences of terminating consent, and in particular whether an ancillary right of self-defence could override any formal withdrawal of consent previously granted. In its pleadings before the International Court, Uganda had argued that the withdrawal of consent was motivated by Kabila’s strategy of improving his political fortunes by incorporating into his armed forces those responsible for the Rwandan genocide as well as other Ugandan insurgents. Uganda argued that it had to maintain and reinforce its troop presence on the ground of self-defence. Uganda also argued that the legitimacy of its security concerns was recognized under the Lusaka ceasefire agreement. This agreement, which was signed by the DRC, Rwanda, Uganda, and Burundi as well by two of the Congolese rebels, MLC and RCD called on all parties to observe a ceasefire and provided a timetable for the withdrawal of all foreign forces. Uganda contended that, by providing such a timetable, the Lusaka agreement expressly authorized, even mandated, the presence of Ugandan troops pending the conclusion of an arrangement that would meet its security needs. In effect Uganda was insisting that its conduct, far from violating international norms on non-use of force, was broadly consistent with it.
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[T]he DRC did not consent to the presence of Ugandan troops. It simply concurred that there should be a process to end the reality in an orderly fashion. But it did not thereby recognize the situation on the ground as legal either before the Lusaka agreement or in the period that would pass until the fulfilment of its terms.
that intervention at the behest of the established government is broadly consistent with the Charter principles on non-use of force. See Gray, International Law and the Use of Force by States, –; Alam, ‘Indian intervention in Sri Lanka and International Law’, NILR () ; DoswaldBeck (n above) ; R Mullerson, ‘Intervention by Invitation’ in LF Damrosch and DJ Scheffer (eds), Law and Force in the New International Order () ; Roth (n above) –. Judgment para . Judgment paras –. Judgment paras –. The related agreements were the Kampala Disengagement plan of April , the Harare Disengagement plan of December and the Luanda Agreement of . Judgment para . Ibid.
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In its judgment of December , the International Court concluded that in the period before August , the DRC did not object to Uganda’s military presence and activities in the eastern border area. However, the authorization or consent was not open-ended and could be withdrawn at any time by the DRC and without adhering to any formalities. President Kabila’s statement of July asking all foreign forces to leave, although ambiguous in its terms, was clarified by subsequent statements in which it was clear that foreign troops were no longer welcome. The withdrawal of the consent dramatically altered the legal landscape making the presence of Ugandan troops a violation of Congolese sovereignty and norms on non-use of force. In relation to Uganda’s contention that it was authorized, even mandated to maintain troops on Congolese territory, the Court noted that there was nothing in the Lusaka agreement and related instruments that could be interpreted as an affirmation that the security interests of Uganda required their presence on Congolese territory on a continuing basis. According to the Court, the Lusaka agreement was essentially a ceasefire plan, and the timetable for withdrawal contained therein had to be understood in those terms rather than as a retrospective validation of Ugandan troop presence. In essence the Court was treating the Lusaka agreement as a political instrument for the settlement of the conflict with no distinct legal consequences for the intervening States. The Court observed that ‘the provisions of the Lusaka agreement represented an agreed modus operandi for the parties. They stipulated how the parties should move forward. They did not purport to qualify the Ugandan military presence in legal terms.’ In accepting this modus operandi, the court further noted that:
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[I]f Uganda complied with its treaty obligations and remained in the territory of the DRC until the expiration of the timetables agreed upon, Uganda would be in violation of international law. On the other hand, if Uganda chose not to
S/Res/ (). For a similar conclusion by the Special Court for Sierra Leone that the Lomé Peace agreement had no legal consequences on the international plane, see Prosecutor v Kallon and Prosecutor v Kallon, Case No SCSL-–AR (E) and Case No SCSL-–AR (E). The Special Court for Sierra Leone was invited to consider a preliminary question whether a tripartite peace agreement between a rebel movement and States parties, however designated, could be described as a treaty, the interpretation and implementation of which was subject to the law of treaties. The prosecution had maintained that the agreement was wholly without consequence on the international plane and that as an instrument between two national bodies its effect was limited to domestic law. The defence, on the other hand, maintained that the treaty character of the Lomé agreement was confirmed by its ratification by the Sierra Leone parliament, a process reserved for international instruments. In its decision of March the Court adopted the prosecution’s argument. It denied that the Lomé Peace agreement was an international instrument, the provisions of which had to be taken into account by the government of Sierra Leone before entering into an agreement with conflicting provisions. See <www.sc-si.org/>. The Congolese suggestion that a ceasefire is a truce, which does not settle pending questions of substance, is difficult to accept. If the DRC had reneged on its promises to hold elections, form a transitional government of national reconciliation or if any of the parties had declined to withdraw their troops in accordance with the agreed timetable, they would clearly have been in breach of their international obligations. See Congo oral pleadings arguments of Professor Klein CR//. In Armed Activities on the Territory of the Congo (DRC v Uganda) Request for the Indication of Provisional Measures, Order of July para , the Court reached the conclusion that the Lusaka Agreement was an international treaty with distinct consequences for the parties.
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In reaching this conclusion the Court was particularly influenced by the fact that Security Council Resolution of June , passed after the Lusaka agreement, continued to identify Uganda and Rwanda as having violated the sovereignty and territorial integrity of the DRC, as further confirmation that the peace agreement had not modified the underlying legal issues in any way. The correctness of the Court’s conclusion that the Lusaka agreement was a political settlement, which did not in any way qualify the essentially illegal character of Uganda troop presence, is open to doubt. It seems trite that the conclusion of the ceasefire agreement in treaty form effectively created legal obligations for the signatory States to act in accordance with the new arrangement. While it is true that the Lusaka agreement did not have the effect of retrospectively validating pre-existing uses of force that were illegal in origin—unless it was clear from the terms that this is what the parties intended—it certainly did alter the legal situation from the moment of its ratification. Uganda was under a duty to withdraw troops in accordance with the agreed schedule, and if the agreement was not to be deprived of internal consistency, it followed that the continued presence of Ugandan troops in the period after the ceasefire was legitimized by its terms. Why formulate the agreement in treaty form with all the attendant formalities if no consequences are desired? The inevitable dilemma resulting from the Court’s finding was noted by Judge Parra Arranguren. He observed that the Court’s conclusion placed Uganda in an impossible situation:
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violate international law as a consequence of its military presence in the DRC and therefore withdrew its troops from the territory of the DRC otherwise than in accordance with the timetables agreed upon, Uganda would have violated its treaty obligations, thereby also being in violation of international law.
B. Arguments Based on Self-defence Quite apart from the question of the alleged consent of the DRC, and under the terms of the cease fire agreements, the second phase of the Congolese conflict, which began in against Kabila’s Government until the formal conclusion of hostilities in , has been mostly characterized by claims of self-defence on the part of all the parties to the conflict. A related argument put forward by the Congolese Government is its entitlement to collective self-defence under the terms of the Southern Africa—Development Corporation Treaty (SADC). The States that intervened in support of the DRC in its war against Uganda, Rwanda, and Burundi relied on the collective self-defence provisions of the SADC treaty as the legal basis for their action. There are four distinct
Separate opinion of Judge Para-Aranguren judgment of December , para . J Klabbers, The Concept of Treaty in International Law (); E Vierdag, ‘The International Court of Justice and the Law of Treaties’ in AV Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of Justice () –; In its order of July on interim measures (DRC v Uganda) the Court reached the conclusion that the Lusaka ceasefire agreement was an international treaty creating distinct obligations for the parties. In the case of Qatar v Bahrain, the International Court of Justice had no difficulty in reaching the conclusion that a series of agreed minutes, which in form appeared not to create binding obligations, were nevertheless international agreements; Maritime Delimitation and Territorial Questions (Qatar v Bahrain) [] ICJ Rep and [] ICJ Rep . See in particular Counter-Memorial of the government of Uganda, paras –, especially para , and oral pleadings in particular arguments of Mr Brownlie CR /. Although no formal complaint was lodged either by or against Angola, it too justified its involvement in Congo’s war on account of support previously given by Congolese authorities to its rebel movement UNITA, which had been involved in a protracted struggle aimed at the overthrow of its communist led government of Eduardo Dos Santos—Angola’s argument here was also a species of self-defence. T Turner, ‘Angola’s Role in the Congo War’ in Clark (n above) ; GJ Bender, Relations Between Angola and Zaire/DRC from Lumumba to Kabila (). See Declaration and Treaty of Southern Africa Development Community, and Protocol on Politics, Defence, and Security Cooperation (SADC), Art , . On SADC’s controversial involvement see W Breytenbach, ‘The Failure of Security Co-operation in SADC: The Suspension of the Organ for Politics, Defence and Security’, () South African Journal of International Affairs (); C Landsberg, ‘The Impossible Neutrality?: South Africa’s Policy in the Congo War’, in Clark (n above) ch .
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The strong reluctance to accept that peace agreements may modify prior illegal conduct is understandable in an international system formally committed to the rule of law. To conclude otherwise would make aggrieved States with outstanding claims against their opponents reluctant to enter into such agreements at all. Yet once entered into they must surely be accepted as having a decisive legal effect on the future conduct of the parties.
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See, generally, application instituting proceedings filed in the registry of the Court, June ). See Memorial of the Republic of Congo (translation), vol (July ) chs and . The Uganda case is carefully set out in its oral and written pleadings to which reference has already been made. The pleadings in the case against Rwanda were confined to jurisdictional issues and that against Burundi was discontinued soon after the application was instituted (n above). [] ICJ Rep para . Counter-Memorial submitted by the Republic of Uganda, Chapter XVIII. See also oral pleadings, arguments of Ian Brownlie, CR /, pp –, paras – and DRC reply, para .. I Brownlie, ‘International Law and the Activities of Armed Bands’ () ICLQ .
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permutations of the self-defence arguments made by the parties to the Congolese conflict. The first is a claim by the DRC which formed the basis of the cases brought by it against Uganda, Rwanda, and Burundi. The DRC argued that it was the victim of an armed attack, its territory having been directly invaded by the three States contrary to international law norms on non-use of force and non-intervention. In addition, it argued that the extensive armed, financial, and logistical support given by the three States to Congolese rebels violated non-use of force principles and entitled it to respond by forcible means. The second permutation of the self-defence claim is made by the three States that directly intervened in Congo’s war. They allege that the direct complicity or support of successive Congolese governments in the attacks by the various insurgent groups fighting the governments of Rwanda, Uganda, and Burundi entitled them to adopt defensive measures against the DRC. The intervening States used the language of the International Court of Justice in the Nicaragua case ‘a sending by or on behalf of DRC of armed bands or irregulars into the territory of the respective States’ which carried out attacks that were no different in scale and effect from an attack carried out by the State itself’. The third argument of Uganda, Rwanda, and Burundi suggests that, even in the absence of direct complicity, the DRC had tolerated and acquiesced in the presence of the rebel groups. This employs the language of State responsibility and suggests Congolese responsibility for failing to exercise due diligence in controlling rebel activities on its territory. Responsibility in this context rests on a presumption of international law that the administration of territory carries with it the obligation to ensure that it is not used as the basis of attacks harmful to the sovereign interests of other States. The final argument is reminiscent of the state failure arguments already adverted to. The suggestion is one of systemic inability by the DRC, on account of the existence of a political vacuum or administrative capacity, to deal with threats from insurgents and foreign armed rebels. In both instances, Uganda and Rwanda maintained that they were entitled to respond to the attacks in exercise of their right to self-defence under Article of the Charter. Although the language of self-help is not
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used in this context, the arguments advanced are reminiscent of a broad claim to self-help measures on account of governmental paralysis. It is necessary to consider each of these arguments in turn. C. Attacks on the DRC and its Entitlement to Self-defence
The alleged consent to the presence of these foreign troops, as well as the terms and circumstances of its withdrawal, was to prove one of the most contested issues in the case brought by the DRC against Uganda. See DRC v Uganda, Judgment of December , judgment paras –. For a catalogue of conflicts taking place in the territory of the Congo and various rebel groups involved, see United Nations Security Council ‘First Assessment of the armed groups operating in the Democratic Republic of Congo’ S//. Memorial submitted by the Republic of Congo, Chapters II and IV. On Security Council Resolutions on Congo’s war. See n above.
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It has already been noted that the second phase of the conflict began when President Laurent Kabila asked Ugandan and Rwandan forces to leave the DRC. After their support for Kabila in Congo’s first war, which had led to the overthrow of Mobutu, the two States had retained a presence in the Congo to help consolidate Kabila’s hold on power and also to fight the various anti-Uganda and Rwanda insurgents that had found sanctuary in the DRC. However, their presence was widely seen as an affront to Congolese sensibilities, and in turn considerably undermined Kabila’s already questionable domestic legitimacy. Predictably, dissatisfaction with his rule led to a resurgence in a hitherto fragmented domestic opposition. His autocratic style and heavy reliance on foreign forces led to a split within his allied democratic forces and the emergence of other opposition groups opposed to his continuation in office. By late the three major rebel groups and five other States had been drawn into what was to become a civil war and an interstate conflict. In addition, various foreign opposition militias, Angolan, Rwandan, Burundian, and Ugandan rebels continued with attacks against their respective governments using the DRC as a base. In its application to the International Court, the DRC alleged that having withdrawn its consent to the presence of all foreign forces on its territory, the continued presence of the forces of Uganda, Rwanda, and Burundi on Congolese territory could only be regarded as an act of aggression bearing international responsibility. The aggression, the DRC argued, triggered its entitlement to rely on a right of self-defence under the terms of the Charter. This conclusion was also broadly consistent with that taken by the UN political organs on the conflict. In its judgment of December , the International Court of Justice had no difficulty in accepting the substance of the Congolese arguments, having rejected the Ugandan arguments on the basis of self-defence. The Court concluded that Uganda had: ‘violated the sovereignty and also the territorial integrity of the DRC’. Uganda’s actions equally constituted interference in the internal affairs of the DRC and in the civil war taking
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place there. The unlawful military intervention by Uganda was of such magnitude and duration that the court considered it to be a grave violation of the prohibition on the use of force in Article () of the Charter This aspect of the judgment is unremarkable as it merely restates the accepted orthodoxy on the absolute character of the prohibition in Article () in the absence of a recognized exception. It is the Court’s failure to recognize a self-defence exception that is more problematic given the law and facts. D. Congolese Complicity in the Attacks on the Alleged Victim States
For seven years, without interruption, Uganda has been subjected to devastating cross-border attacks on a regular basis from armed insurgents in eastern Congo. Except for a brief period, their activities have been coordinated by, and subject
Judgment of December , para . Since the cases brought against Rwanda have not been able to proceed beyond the jurisdictional phase, there has been no opportunity to hear detailed arguments on the substantive issues. Therefore there is an inevitable lack of balance in the discussion of the self-defence arguments put forward by Rwanda and the DRC’s rebuttal of the claims in this article. However, in public statements before the UN and to independent observers, Rwanda has maintained that its involvement in the Congolese conflict was driven by security concerns. Rwanda blamed Mobutu’s government for giving sanctuary and support to Hutu militia and other former members of the Rwandan army responsible for the Genocide. Rwandan intervention was also apparently triggered by Mobutu’s persecution of the Banyamulenge, a Tutsi group who emigrated from Rwanda in the last century and who retained close affinities with the Rwandese Tutsi population. Rwanda’s justifications for the military operations after were therefore on the basis of self-defence, but in so far as their declared basis was to deter further attacks by those responsible for the Rwandan genocide they were clearly anticipatory in outlook. As noted previously, the case against Burundi was unilaterally discontinued by the DRC soon after it was instituted. As such Burundi, like Rwanda, has not had the opportunity to clearly formulate its reasons for intervention in the Congolese conflict. However, in public statements, Burundi like Rwanda accused the DRC of harbouring Hutu extremists responsible for the civil war in that country which has pitched the Tutsi ethnic group against the Hutus. As with Rwanda and Uganda, Burundi has maintained that its intervention in the civil war was to destroy the bases of the Burundian rebel group Forces pour la Défense de la démocratie (FDD). See, for instance, statements made to the UK All Party Parliamentary Group, APPGGL visit to the DRC ; United Nations Security Council, First Assessment of the armed groups operating in the DRC, S//.
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The most well-developed arguments in relation to self-defence as a justification for the military operations undertaken in the Congo are those put forward by the Government of Uganda. As noted previously, the case against Uganda had the most secure jurisdictional basis, and was the only one of the three cases instituted by the DRC arising out of the conflict to proceed to the merits. In claiming that it was entitled to act in self-defence, the Government of Uganda argued that successive Congolese Governments, first under Mobutu’s leadership, and subsequently under Laurent and Joseph Kabila, had been involved in some form of surrogate warfare by giving armed support and sanctuary to anti-Ugandan insurgents, principally Allied Democratic Forces (ADF) and Lords Resistance Army (LRA). The charge as stated in the Counter-Memorial of the government of Uganda alleged that:
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The Counter-Memorial went on to argue that anti-Uganda insurgents had existed intermittently since , but only posed a serious threat to Uganda after they started receiving extensive military support from the government in Kinshasa, the latter acting in collusion with the government of Sudan. In extending support to anti-Uganda rebels, Mobutu’s Government, Uganda maintained, was motivated by the need to take revenge on Uganda’s progressive government that had opposed Mobutu’s illiberal policies in Zaire. Uganda further alleged that some of these groups, such as West Nile Bank Front (WNBF) and the Lords Resistance Army (LRA), received military and financial support from the Sudanese government with the knowledge and complicity of the successive governments in the DRC. According to Uganda, the government of Sudan also financed, trained, and supplied various other anti-Uganda groups based in the Congo, principally the former Uganda National Army (FUNA) Uganda National Rescue Front (II), and the National Army for the Liberation of Uganda. Uganda maintained that in order to gain popular local support, President Kabila incorporated into his army an assortment of rebel groups including those responsible for the Genocide in Rwanda, and various armed militia, as well as Ugandan insurgents who were using Eastern Congo as a base from which to launch attacks on Uganda. As a result, Uganda argued, it was entitled to take action against the DRC under the terms of Article of the UN Charter. It argued that the logistical, financial, and military support given to the insurgents and the consequences of military action taken by them amounted to an armed attack for which the DRC was responsible. According to the Ugandan High Command document, which formed the basis of Ugandan military operation in the Congo, the DRC had
Oral pleadings, CR//. Counter-Memorial submitted by the Republic of Uganda, vol I, pp –. ibid. Counter-Memorial of the Government of Uganda above, paras ff and Rejoinder of the government of Uganda p and para .
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to the command and control of the Congolese government. The purpose of these attacks has been and remains to terrorise northern and western Uganda, seize territory, and destabilise and ultimately overthrow the Ugandan Government by force of arms. Various anti-Uganda insurgent groups some professing loyalty to Idi Amin the notorious former Ugandan dictator now exiled in Saudi Arabia have operated from Congolese territory during this period, with the full support of successive Congolese governments headed respectively, by president’s Mobutu Ssese Seko, Laurent Kabila, and Joseph Kabila. These armed groups called themselves: the Allied Democratic Forces (ADF); Lords Resistance Army (LRA); Uganda National Rescue Front II (UNRF II); Former Uganda National Army (FUNA); West Nile Bank Front (WNBF); and National Army for the Liberation of Uganda (NALU).
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given logistic and military support to anti-Uganda insurgents operating out of its territory in circumstances which engaged the direct responsibility of the DRC. In the alternative, Uganda argued that the DRC, by tolerating and acquiescing in the activities of these rebel groups, had failed in its duties of vigilance, and as a result incurred international responsibility for their actions. This argument was novel, not least because the traditional understanding has been that a failure to exercise vigilance gives rise to delictual consequences under the law of State responsibility and not an entitlement to use force on the part of the putative victim.
Ugandan self-defence arguments received extensive consideration in the Court’s judgment. First, the Court noted that, even leaving aside the question of when the Congolese consent to the presence of Ugandan forces was terminated, the new operations after August were not directed at rebel military operations but were wholesale military assaults. They were therefore wholly disproportionate to the alleged threats that had given rise to them. The Court was particularly exercised by the fact that Ugandan troops had mounted operations thousands of kilometres away from the Ugandan border, which bore no relation to its alleged security needs in the frontier region. The Court then considered whether these actions were justifiable under the law of self-defence as claimed by Uganda. Uganda had argued that in the period following the thawing of its relations with Kabila’s government, there was a dramatic increase in the scale and intensity of rebel attacks. According to Uganda, the change in their nature was because the rebels were being re-supplied and re-equipped by both the DRC and the Sudanese Government. The Court was unable to find any evidence of direct Congolese complicity in these attacks. The acts of the ADF and LRA could not be attributed to the DRC as they were not sent by or on behalf of the DRC. Consequently, the resulting attacks, however substantial, were not attributable to a State agency and could not trigger the application of the right of self-defence against the DRC. The Court found that: [W]hile Uganda claimed to have acted in self-defence, it did not ever claim that it had been subjected to an armed attack by the armed forces of the DRC. The ‘armed attacks’ to which reference was made came from the ADF. The Court has found above [paras –] that there is no satisfactory proof of the involvement in these attacks direct or indirect, of the government of the DRC. The attacks did not emanate from armed bands or irregulars sent by the DRC or on behalf of the DRC, within the sense of Article (g) of the GA resolution on the
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Counter-Memorial ch . Judgment para . ibid.
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E. Consideration of Uganda’s Self-defence Claims in the ICJ
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definition of aggression adopted on December . The Court is of the view that, on the evidence before it, even if these series of deplorable attacks could be regarded as cumulative in character they still remained non-attributable to the DRC.
Judgment p . Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States) Merits [] ICJ Rep at , para . Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of July , para . See UKAPPGGL and the successive reports by Amnesty International Report and Human Rights Watch Report on the Congo; DRC, Reply, para ..
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In rejecting these arguments, the Court observed that the evidence supplied by Uganda in support of Congolese complicity in the attacks perpetrated by Uganda rebels were of limited probative value, and on the whole could not sustain the Ugandan claims in a court of law. It accepted that Uganda had been the victim of vicious attacks from anti-Uganda insurgents operating on Congolese territory, but in its view these groups were acting alone and not under the proven direction or control of the Congolese State or its instrumentalities. In reaching this conclusion, the Court took a narrow view of Article as only triggering the right of self-defence if an attack emanates from a State. In this it was echoing a paragraph in its decision in the Nicaragua case, where it held that military action by non-State actors could only constitute an armed attack if they were sent by or on behalf of the State, and if the activity ‘because of its scale and effects, would have been classified as an armed attack . . . had it been carried out by regular armed forces’. In its Advisory Opinion on the Legal Consequences of the Construction of a Wall, the Court had without any discussion reached a similar conclusion in denying the existence of an Israeli right of selfdefence since it argued the attacks against Israel were not carried out by a State instrumentality. This aspect of the Court’s judgment is unsatisfactory for a number of reasons. First, in concluding that it could find no evidence of complicity on the part of the Congolese government, the Court was glaringly myopic. The Ugandan account of support given to Ugandan insurgents by the DRC and Sudan may well have been exaggerated to create maximum impact but there was plenty of evidence before the Court and elsewhere that the DRC was not neutral when it came to the question of Ugandan insurgents. For instance, the following provisions of the Lusaka agreement only made sense in the context of charges of complicity against the DRC as the other States had not been accused of harbouring Congolese terrorists. It provided that: ‘Determined further to put an immediate halt to any assistance, collaboration, or giving of sanctuary to negative forces bent on destabilising neighbouring countries’ have agreed ‘not to arm, train, harbour on its territory, or render any form of support to subversive
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elements or armed opposition movements for the purpose of destabilising the others’. In its the reply the DRC implicitly admitted giving direct support to Uganda’s rebels but offered the following justification: [W]hatever the facts that may be established it goes without saying that the DRC cannot be held responsible for support provided as a response to the armed aggression which it was being subjected to by Uganda.
Preamble (n above). See C Greenwood, ‘International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida and Iraq’, San Diego International Law Journal () at . SC Res () and . SC Res , SC/Res , SC/Res , SC/Res . See ‘A More Secure World: Our Shared Responsibility. Report of the Secretary-General’s High Level Panel on Threats, Challenges and Change’ .
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The Court almost accepts the existence of complicity in the support given by the DRC to two main Rwandan insurgent groups Ex-FAR and the interahamwe, but goes on to observe that in so far as these groups only attacked Rwanda, it did not support the case of Uganda. Second, by implicitly asserting that an attack triggering a response by way of self-defence must emanate from a State instrumentality, the Court’s judgment stands in marked contrast to developments in State practice at least since . Indeed the famous Caroline dispute, regarded as the locus classicus in this field, concerned an armed attack emanating from non-State groups. The Webster formula of an armed attack triggering a right of self-defence is studiously neutral on the question of the source of the attack. It made no reference to the fact that the British selfdefence claim was in response to an attack by armed rebel groups not necessarily supported by the United States. The Security Council resolutions adopted in the aftermath of September the th authorizing the United States to take action against the Taliban regime for harbouring the al-Qaeda terrorist network, however, provide the clearest evidence to date that States may have a right to take self-defence measures by way of response to an attack by a non-State actor. The Council has nevertheless not always acted with consistency when faced with self-defence claims in response to rebel attacks. For instance it rejected Rwandan claims that in order to prevent further attacks, it had a right to attack Hutu militia operating out of the DRC. Yet it is increasingly clear that the need for a different conception of what amounts to an armed attack has affected the work of the UN itself as evidenced by the report of the High Level Panel appointed by the Secretary-General to review the workings of the Charter. In its final report, the Panel acknowledged the increasing role of threats from non-State actors, and the need for an overall evaluation of the Charter’s effectiveness in dealing with them. The extreme reserve shown by the Court in relation to this question is in part a consequence of the procedural stance adopted by Uganda in the
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cf Separate opinion of Judge Kooijmans, paras –. Brownlie, ‘International Law and the Activities of Armed Bands’ () ICLQ . See decision of the Mexico–United States Mixed Claims Commission in Salvador Prats, JB Moore, International Arbitration to which the United States has been a Party, –; see also the Neer case decision of the Mexico–United States General Claims Commission, vol IV RIAA, at –.
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pleadings. Uganda’s claim was essentially one of self-defence against the DRC, and it did not clearly argue that it had a parallel right of selfdefence against attacks from rebels even in the absence of any proven complicity on the part of the Congolese State. It was argued previously that, apart from one aberration in the Barcelona Traction case, the Court has with remarkable consistency refrained from passing judgment on questions that were not directly referred to it. However, to refuse to respond to the issue at all is strikingly shortsighted given the central importance in international law of the issues under consideration. The conflict in all its many aspects had only peripherally involved contact between regular forces and much of it was fought through the use of irregular forces—sometimes termed ‘surrogate warfare’. To refuse to give an answer on an issue of such importance, even if it was not part of the parties’ formal submissions, does appear unnecessarily restrictive. If these attacks were not carried out by or on behalf of the DRC (thus excluding any right of self-defence), where did responsibility for them lie? Even an explicit admission of a lacuna would have been a far more positive outcome for the future development of the law than a total failure to engage with the issue. Uganda had argued that by virtue of the territorial control exercised by a State over its territory under the doctrine of State responsibility, the DRC was responsible for the acts of insurgents operating on its territory and that, as corollary, failure to exercise control entitled the victim State to take self defence measures. There is nevertheless a fundamental shortcoming in using the conceptual framework of State responsibility in Uganda’s arguments. The traditional understanding of the law on State responsibility for activities of armed bands and groups of a similar character has always been based on due diligence—a standard determined by the resources at the disposal of the territorial State. If it can therefore be demonstrated that the territorial State had done everything within its power to prevent the attack (a burden that would not be too difficult to discharge in the context of an unravelling State such as the DRC) then the victim State would have no recourse in international law. Second, Uganda’s argument that Congolese responsibility entitled it to take measures by way of self-defence departs from the general conception of State responsibility as delictual, entitling a victim State to resort not to forcible measures but civil law remedies. Curiously, this novel claim elicited no response from the Court.
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The Court’s reticence was, however, not shared by all of its members. In their separate opinions, Judges Simma and Kooijmans were of the view that if the rebel attacks were of sufficient gravity to qualify as armed attacks, then Uganda was entitled to take measures by way of self-defence even in the absence of any evidence that the Congolese State was complicit. In a passage which will no doubt re-ignite the debate on this controversial issue, Kooijmans observed that:
Applying the necessity and proportionality tests to the Ugandan attacks, the two judges concluded that the measures taken were neither necessary nor proportionate, and for that reason they would have arrived at the same result as the majority. There are a number of outstanding issues in applying the law of selfdefence to the activities of non-State actors. The first, hinted at by the Court itself in the judgment, relates to the general unease about extending the self-defence regime to cover acts or situations which have not taken place but which are anticipated. The Charter had intended the right of self-defence as a limited and temporary right, which a victim could rely on until the Security Council had taken measures to restore international peace and security. The traditional understanding of self-defence was that it was reactive, although the classical formulation in the Caroline case was in relation to attacks that were anticipated and had not actually occurred. Yet given the clandestine nature of attacks from rebel groups, and the clear need to prevent or deter further attacks, a realistic conception of self-defence must surely extend to attacks that are anticipated. The necessity element is also difficult to quantify since State reaction will almost always take place after the event, making the measures in question appear punitive rather than defensive. There is now a respectable body of scholarly opinion subscribing to the view that Article covers attacks Separate opinion of Judge Simma, paras –; Separate opinion of Judge Koojimans paras. –). Separate opinion of Judge Kooijmans, paras –. The formulation of the law in the Caroline Case as ‘instant, overwhelming, leaving no choice of means or moment for deliberation remains the locus classicus that has virtually remained changed in the intervening years’.
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The lawfulness of the conduct of the attacked State must be put to the same test as that applied in the case of a claim of self-defence against a State: does the armed action by the irregulars amount to an armed attack and if so, is the armed action by the attacked State in conformity with the requirements of necessity and proportionality? The series of attacks which were carried out from June till the beginning of can be said to have amounted to an armed attack in the sense of Article , thus entitling Uganda to the exercise of self-defence. Although Uganda, during the proceedings, persistently claimed that the DRC was directly or indirectly involved in these attacks, the finding that this allegation cannot be substantiated and that these attacks are therefore not attributable to the DRC has no direct legal relevance for the question whether Uganda is entitled to exercise its right of self-defence.
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which have actually occurred as well as those that are imminent. This would still exclude a large category of use of force which is clearly preemptive in character. The Court, after referring to its judgment in the Nicaragua case, expressed no view on the legality of anticipatory self-defence. Interestingly, the Court was aware that notwithstanding the absence of a formal claim based on anticipatory self-defence, the justifications put forward by Uganda could only be explained on that basis. The reasons given by Uganda for maintaining forces of the UPDF in the Congo were stated as follows in the High Command document:
As the Court pointed out, of the five objectives, only one related to acts that had already taken place. The justifications put forward by Rwanda in so far as they related to deterring future attacks by Hutu militia responsible for the Rwanda Genocide were also clearly anticipatory in character. F. Self-defence and the Contextual Issue of State Failure In its pleadings before the International Court of Justice, the DRC argued that systemic paralysis and the resulting political vacuum in the DRC itself entitled it to take protective measures by way of self-defence. The factual context was put by Uganda in the following terms: It is a fact of history that the political turmoil in the Democratic Republic of the Congo, which started at its independence in , has had a negative impact on Uganda and other neighbouring countries, thereby posing a threat to peace and security in the Great Lakes Region. Armed groups bent on destabilizing Uganda have often taken advantage of the absence of governmental authority in certain remote areas of the DRC and have sometimes been provided with a safe haven on the territory of the DRC. For example, in November , a force of See Greenwood (n above); see also Schachter, International Law in Theory and in Practice (n ) –. Judgment of December , para . n above.
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. To deny Sudan the opportunity to use the territory of the DRC to destabilize Uganda. . To enable UPDF [to] neutralize Ugandan dissident groups which have been receiving assistance from the Government of the DRC and the Sudan. . To ensure that the political and administrative vacuum, and instability caused by the fighting between the rebels and the Congolese Army and its allies do not adversely affect the security of Uganda. . To prevent the genocidal elements, namely the interahamwe, and EX-FAR which have been launching attacks on the people of Uganda from the DRC, from continuing to so. . To be in a position to safeguard the territorial integrity of Uganda against irresponsible threats of invasion from certain forces (UCM Annex ).
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anti-Uganda rebels known as the Allied Democratic Forces or ADF, numbering over men invaded Uganda through the border post of Mpondwe and made a ferocious attempt to capture the key town of Kasese and its adjoining airstrip. After heavy fighting and loss of life they returned to their bases inside the Democratic Republic of Congo from where they and other Uganda rebel groups have continued to launch attacks on Uganda.
These systemic problems were conceded by the DRC in its pleadings. The DRC accepted that
The DRC on the other hand explicitly denied that international law recognized a distinct category of self-defence on account of ‘security concerns’ necessitated by governmental failure. In oral arguments, counsel for the DRC, Mr Corten, rejected Uganda’s self-defence claims as peculiar and a fundamental departure from the concept of self-defence as dependent on the existence of an actual armed attack in terms of Article of the Charter. The International Court of Justice was unsympathetic to Ugandan arguments that systemic paralysis on the part of the Congolese authorities entitled her to forcible defensive measures by way of self-defence. It categorically rejected Ugandan arguments that perceived security threats on account of governmental failure could entitle a State to take forcible measures against another, maintaining that the right in Article of the Charter only provided a right of self-defence within its narrow parameters. The practical dilemma that governmental failure raises for neighbouring States, especially when the resulting political and security vacuum is exploited by groups with an anti-social agenda, was not lost on the Court. The Court nevertheless concluded that threats of this kind fell within the protective ambit of the Security Council in the exercise of its Chapter VII powers. Yet as is well known, for most of the post-Charter practice, this protective function has for a number of reasons rarely if ever been exercised. In policy terms, insistence on the Charter framework as the only acceptable method of dealing with these threats is to insist on a rule that permits its own evasion. It seems unrealistic that a State facing attacks from insurgents operating out of the territory of a dysfunctional State has no remedies in the international system.
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See arguments of Mr Katureebe, CR /. Written pleadings DRC, Reply, para .. Arguments of Mr Corten CR /, –. See generally para . Judgment para .
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it has always been the theatre of irregular rebel movements acting against both the governments of Congo and Zaire on the one hand and Uganda on the other. None of the two States has ever been able to sustainably control this border.
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. E C ’ R : T C N P S O N R
Clark (n above) ch ; OECD, ‘Conducting Business with Integrity in Weak Governance: Issues for Discussion and a Case Study of the DRC’, September ; M Berdal and D Malone (eds), Greed and Grievance: Economic Agendas in Civil Wars (). Annex to the letter dated December from the Permanent Representative of the DRC to the United Nations), S//, December . APPGGL, visit to the DRC in , n above APPGGL, ‘Cursed by Riches: Who Benefits from Resource Exploitation in the Democratic Republic of Congo?’, November ; see also final report of UN Panel (S//) on the Illegal Exploitation of Natural Resources and other Forms of Wealth of the DRC ( October ). Final Report of the UN panel of experts, above; Final Report of the Judicial Commission of Inquiry of Allegations into Illegal Exploitation of Natural Resources and other Forms of Wealth in the Democratic Republic of Congo (May –November ) Kampala, November ; Human Rights Watch, International Initiatives to Address Resource Exploitation in the DRC . Two resolutions and four presidential statements were passed by the Security Council linking the conflict to Congo’s vast mineral resources, see UN Security Council presidential statements, June (S/PRST//), May and Security Council Resolutions and , January and August .
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The commentaries on Congo’s war are unanimous that the real reason for the conflict is the exploitation of the country’s mineral resources. This, rather than security concerns, is the real motivation of Burundi, Rwanda, and Uganda, as well as the SADC States, Namibia, Zimbabwe, and Angola that intervened on behalf of President Kabila. President Laurent Kabila had also reportedly paid his SADC allies in the form of grants of mineral concessions. Many companies, especially Canadian and American corporations, entered into mineral exploitation deals with both the rebels and Kabila’s government. The UN Panel of experts investigated the illegal exploitation of diamonds, cobalt, coltan, gold and other lucrative resources in the Congo. These reports accused Rwanda, Uganda, and Zimbabwe of systematically exploiting Congolese resources and recommended that the Security Council impose sanctions. In an influential report, the UK All Party Parliamentary Group on the Great Lakes, concluded that, although Rwanda and Uganda’s intervention may have been motivated by security concerns, the positioning of their troops in close proximity to the main diamond exploration areas suggests that the real reason for the invasion was Congo’s mineral wealth. The substantial economic benefits that accrued to the foreign armies were confirmed without qualification in the UN commissioned studies. In DRC v Uganda, the DRC directly raised the question of Uganda’s responsibility for the acts of its armed forces in illegally exploiting Congo’s mineral wealth. The DRC had argued that the illegal exploitation of Congolese mineral resources, in addition to violating Congo’s sovereignty, also contravened international law principles in the field of self-determination, in particular a people’s permanent sovereignty over natural resources, the principle of non-intervention in matters that are reserved for the domestic domain, as well as the applicable rules of
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All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit and international law. In no case may a people be deprived of its means of subsistence.
Application of June (n above). Rejoinder submitted by the Republic of Uganda, paras and . ibid para . Hague Convention No IV on the Laws and Customs of War on Land, (Hague IV) entered into force January , Treaties and other International Agreements of the United States –, vol I, Washington fourth Geneva Convention, Relative to the Protection of Civilian Populations in Time of War, August , in force October , UNTS no . See Arts and . See also Art of the ICCPR ‘Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilise fully and freely their natural wealth and resources’, International Covenant on Civil and Political Rights, December (entered into force March ) UNTS ; International Covenant on Economic and Cultural Rights ( December ) entered into force January , UNTS .
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humanitarian law. For its part, Uganda in the counterclaim and in oral pleadings denied taking part in any illegal exploitation, and argued that exploration contracts granted to Ugandan agents or companies were undertaken with the consent of the RCD/MLC as the de facto authorities in areas under their control. In its written and oral arguments, Uganda also argued that, to the extent that there was illegal exploitation by individual members of its armed forces, this did not as such engage its responsibility. This is the first time that the question of legality of use of force has involved the question of responsibility for the illegal exploitation of a country’s resources. The Congo in part sought to base Uganda’s responsibility on the law of belligerent occupation, arguing that the exploitation of the mineral resources contravened the provisions of the Hague and Geneva Conventions on belligerent occupation. In its judgment of December , the International Court of Justice rejected Congo’s arguments based on the concept of permanent sovereignty over natural resources. It noted that this principle, which had evolved in the context of decolonization, was inapplicable to the specific allegations of looting, pillage, and exploitation of natural resources by the members of the armed forces of an occupying State. The Court gave no reasons for its conclusion that the principle had no application outside the specific contexts of decolonization envisaged in the General Assembly resolutions. In rejecting the principle as inapplicable, the Court refused to countenance the possibility that international law may have evolved to extend the application of the principle to the exploitation of the natural resources of all autonomous political units however designated in international law. The language of the Civil and Political Rights Covenant, and the Economic and Cultural Rights Covenant, is unequivocally neutral as to the designated contexts of application. Both instruments provide that:
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Crawford, The Rights of Peoples () and ; N Schriver, Sovereignty over Natural Resources () especially chs and . See also Legal opinion of UN Office of Legal Affairs on the Legality of the Oil Contracts signed by Morocco in Western Sahara, S//. [] ICJ Rep . The issue of permanent sovereignty also affected the arguments of the parties in the Case of East Timor. Portugal had argued that the treaty entered into between Indonesia and Australia on the exploration and exploitation of the continental shelf area of the East Timor Gap was incompatible with the right of the people of East Timor to Permanent Sovereignty over its natural wealth and the rights and powers of Portugal as administering power. The Court did not give a judgment on the merits finding instead that it lacked jurisdiction over the claim in so far as it affected the rights of Indonesia, a third party to the dispute, see Application Instituting proceedings filed in the registry of the Court on February (Portugal v Australia) and Judgment of June . The relevant Security Council resolutions have in fact been addressed to all parties to the Congolese conflict and have called on all of them to take appropriate steps to end illegal exploitation of Congo’s resources (including the DRC) S/Res/ ().
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In the literature and State practice outside decolonization, the view has been expressed that if the concept of ‘permanent sovereignty’ is not to be deprived of its protective value, then it must surely entail a set of justiciable precepts in relation to the exploitation and use of natural resources which a people may be entitled to enforce not only as against foreign governments but even against their own State. Moreover, the International Court of Justice in the Nauru case implicitly accepted that the concept of permanent sovereignty had continuing validity outside the decolonization process—so much as to permit Nauru to challenge Australian conduct in relation to the management of Nauru’s natural resources in a post-colonial situation. Uganda, the DRC itself, the three rebel groups MLC, RCD-Kisangani, and RCD-Goma, and all other States that were in one form or another implicated in the illegal exploitation of Congolese resources were in violation of this principle even if the specific legal consequences and modalities for its enforcement remain problematic. The Court’s extreme caution in making a finding only as against Uganda in the face of overwhelming evidence of the extensive role played by all the parties to the Congolese conflict in the illegal exploitation of resources is in part another inhibition caused by the bilateral character of dispute settlement procedures before the International Court of Justice. Congo’s rebels, Rwanda, Burundi, as well as the SADC States that intervened in support of Kabila, were not parties to the dispute before the Court. Under the existing procedures it would have been difficult for the Court to make any comprehensive assessment of the responsibilities of all the parties to the conflict. However, the undeniable responsibility of Uganda did not surely foreclose the issue of principle as to the role of the other States and rebel groups in the extraction of Congo’s natural resources in a manner which on any view could not be for the benefit of the inhabitants. The designation of natural resources as a right of peoples in the two human rights instruments and in Article of the African Charter on Human
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and Peoples Rights acts as a constraint on the power of a government to dispose of the natural resources of a territory for the sole purpose of perpetuating its hold on power. Situations must surely arise which call for a displacement of the presumption that a government exercises its plenary powers for the benefit of the population of a territory. The modalities of displacing that presumption are, however, fraught with enormous practical difficulties. . C
A workable framework for apportioning responsibility in situations where access to governmental authority is deeply contested and where rebels have functioned as de facto administrative authorities. The International Law Commission’s consideration of these issues in situations where the rebels are successful in displacing the established government nevertheless leaves unresolved the legal framework for accountability where the rebellion is ultimately unsuccessful. The incorporation of Congolese rebels into a transitional government of national reconciliation has not resolved pre-existing issues arising from their status during the period of insurgency. Governmental collapse and the myriad difficulties encountered, not just internally but especially when the resulting power vacuum is exploited by groups with an anti-social agenda to undermine the security of neighbouring States, also calls for careful reflection. The reaffirmation of the continuing sovereignty of an unravelling State such as DRC is unlikely to contribute to international peace and security in the absence of a structured framework for addressing the security concerns
OAU Doc CAB/LEG///Rev. () entry into force October . International Conference on Peace, Security, Democracy and Development in the Great Lakes Region; Dar-es-Salaam Declaration .
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It is remarkable that despite nearly years of consistent application, the Charter principles on non-use of force do not yield easy answers in any but the most straightforward of cases. Congo’s conflict in its different permutations bears testimony to this. In a period that has witnessed unprecedented soul searching as to the continuing vitality of international law rules on the use of force, aggravated by the controversial invasion of Iraq, the many cases instituted by the DRC and the vigorous legal defences put forward by the defendant States are reassuring for they have reinforced in unexpected ways the continuing importance of international law rules on the non-use of force. The final political settlement of the Congolese conflict has also taken place against the background of a commitment to decidedly legal principles. Within that legal framework there are a number of substantive issues that remain unresolved. These include:
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of neighbouring States. The spectacular recourse to vigilante justice manifested by Congo’s neighbours illustrates that a rhetorical commitment to the Charter principles, without more is bound to be ineffective. The appropriate forms of response when a State is at the receiving end of ‘armed attacks’ orchestrated by insurgents who are not under the direction and control of a State also needs to be reviewed. The claims by the DRC and the counterclaims of Uganda, Rwanda and Burundi in their various guises coalesced around this issue. The International Court of Justice’s apparent reaffirmation of the traditional position that only attacks by or on behalf of a State give rise to a right of selfdefence confirms the existence of an accountability gap in situations where insurgents go it alone. It leaves unresolved what the appropriate responses of victim States should be in these situations. The International Court of Justice’s refusal to engage with this issue in any meaningful way will only perpetuate the confusion surrounding this area of the law. It is disturbing that one of the worst atrocities afflicted on a civilian population since the Second World War has in fact only been possible because of the country’s vast mineral resources. The funding of the war by Congo’s mineral resources calls for a re-appraisal of the concept of a people’s permanent sovereignty over natural resources outside the context of decolonization and the appropriate methods for safeguarding it, not only against violations by sovereign powers, but also in certain situations against the established government. The International Court of Justice has consistently supported determinations made by the Security Council in the field of the use of force and treated political determinations in this field as unreviewable. To that extent the extreme caution demonstrated in DRC v Uganda in not going beyond the generally accepted categories of permissible uses of force is understandable. Apart from calling on the intervening States to respect the sovereignty and territorial integrity of the DRC, the Security Council had itself not dealt with the issues in any comprehensive manner. None of the resolutions of the Council on the Congo were in any way concerned with extending the right of self-defence beyond the traditional paradigms or considering in any meaningful way permissible responses to rebel attack. In that context the Court’s reticence nevertheless raises a wider question as to the proper role of the judicial function in situations where it is called upon to decide on issues in respect of which the political organs have been actively engaged. It remains an open question whether this form of extreme caution is desirable when the Court is directly faced with issues of considerable importance but in respect of which the lex lata content of international law has not been clarified in any meaningful way. On one view the Court can be expected and must be prepared to give guidance on these disputed questions in respect of which the lex lata
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content of the law has not crystallized. On another view such judicial foray into questions of international policy would dangerously politicize the Court and undermine the perceived neutrality on which its legitimacy rests. If international law is to have continuing relevance to new challenges, then its institutional organs, including the Court, must be prepared to adapt and respond creatively to the changed political, military, or technological circumstances even if this involves a progressive development of the existing rules and a review of the decisions of the political organs. Downloaded from bybil.oxfordjournals.org by guest on February 16, 2011
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