The ICJ’s Armed Activities Reparations Judgment: A Brave New World?
On February 9, 2022, the International Court of Justice (ICJ) rendered its judgment on reparations in the case concerning Armed Activities on the Territory of the Congo, between the Democratic Republic of the Congo (DRC) and Uganda. The Court awarded the DRC a total of $325,000,000 in compensation. While the judgment marks a close to proceedings instituted more than 20 years ago, it opens several new questions, particularly on matters of evidence and the judicial function more generally. This post—which should be read as a follow-up to an earlier post that served as a primer to the judgment—first seeks to summarize the ICJ’s main findings of law and fact, and then offers a few observations thereon.
Main Findings of the Court’s Judgment
After recalling the procedural history of the case and making a few introductory observations—inter alia underlining the sheer complexity of the case—the Court made some statements on the law and rules of evidence it would apply to determine the amount of compensation due for Uganda’s violations of international law, pursuant to its 2005 judgment. The Court then applied that law to the facts, finishing with matters relating to satisfaction, costs, and the manner of payment.
It is beyond the scope of the present post to summarize in detail the Court’s judgment, and particularly its lengthy engagement with the parties’ claims regarding damages. Instead, this post will survey some of the Court’s main legal and procedural pronouncements, as well as certain recurring themes in its application of the law to the facts.
Points of Departure for Particular International Obligations
Before outlining its general methodology on law and procedure, the Court addressed how Ugandan violations of particular international obligations, as found in its 2005 judgment, affected the Court’s determinations of fact and legal consequences.
The Court recalled that as an occupying power in Ituri, Uganda had a duty of vigilance to prevent violations by third parties of international humanitarian law (IHL) and human rights. However, the ICJ went a step further, deducing from the nature of Uganda’s obligation consequences for the burden of proof. While otherwise recognizing that generally the party making a claim bears the burden to prove supporting facts (para 119), the ICJ stated that “it is for Uganda to establish … that a particular injury alleged by the DRC in Ituri was not caused by Uganda’s failure to meet its obligations” (para 78)—at least to the degree that the DRC has proved injury at a prima facie level (cf. Judge Yusuf).
Regarding areas outside the occupied Ituri region, the question arose as to Uganda’s obligation to provide reparations for damage caused by certain rebel groups. The Court recalled its findings in the 2005 judgment that, while Uganda had unlawfully supported some of these groups, the latter were not controlled by Uganda—which would otherwise have connoted State responsibility for their conduct. In these circumstances, the Court stated that “[i]t falls to [us] to assess each category of alleged damage on a case-by-case basis and to examine whether Uganda’s support of the relevant rebel group was a sufficiently direct and certain cause of the injury” (paras 82-84).
It should be noted, however, that the Court provided little indication whether and how it had established Uganda’s liability for damage caused by armed groups it unlawfully supported (see, e.g., para 250), save in the specific context of recruitment of child soldiers where Uganda was reported to have “backed” such recruitment by an armed group (para 204).
The Law on Reparations
The Court identified the causal nexus necessary between legal breaches and compensable damage. It reiterated its approach in the Bosnia v Serbia case that there must be “a sufficiently direct and certain causal nexus between the wrongful act … and the injury suffered,” while adding that “the causal nexus required may vary depending on the primary rule violated and the nature and extent of the injury” (para 93). In this regard, the ICJ emphasized the presence of numerous armed actors operating in the DRC. While rejecting an approach that would assign Ugandan liability in proportion to its supposed “influence,” it also ruled out the proposition that “concurrent causes” of damage would relieve Uganda of liability (para 97).
While the Court’s general observations on rules applicable to reparations contained no surprises (paras 99-102), the Court made the following observation, which would prove key in its application of the law to the facts (para 106):
The Court may, on an exceptional basis, award compensation in the form of a global sum, within the range of possibilities indicated by the evidence and taking account of equitable considerations. Such an approach may be called for where the evidence leaves no doubt that an internationally wrongful act has caused a substantiated injury, but does not allow a precise evaluation of the extent or scale of such injury ….
The Court relied particularly on the Eritrea-Ethiopia Claims Commission as authority for this approach (but see Judge Robinson), while adding that the less exacting approach does lead to lower levels of compensation (para 107).
Standard of Proof
The Court observed that the standard of proof “may vary from case to case and may depend on the gravity of the acts alleged” (para 120). In this regard, it considered that “the standard of proof required to establish responsibility is higher than in the present phase on reparation, which calls for some flexibility” (para 124).
Providing a glimpse into what would follow, the ICJ noted that the evidence presented by the DRC was generally unpersuasive. However, it emphasised the relatively high probative value of the Uganda-established Porter Commission Report, as well as the Mapping Report published by the UN Office of the High Commissioner for Human Rights (para 125). Additionally, given the circumstances of the case, the ICJ considered that instead of establishing the exact scope of damage, it could suffice with establishing the scope within a “range of possibilities” where sufficient evidence existed (para 126).
The Structure of the Court’s Assessment of Heads of Damage
As noted in the previous post, the DRC divided its claims for compensation between four classes of damage: damage to persons, damage to property, damage to natural resources and macroeconomic damage. Regarding the latter, without answering the question whether macroeconomic damage is compensable under international law (para 381; but see Judge Robinson), the Court rejected the claims, explaining, “the DRC has not demonstrated that a sufficiently direct and certain causal nexus exists between the internationally wrongful acts of Uganda and any possible macroeconomic damage” (para 384).
Regarding the other classes of damage, the Court divided its analyses on each between more specific categories of damage. For example, regarding damage to persons, it divided its analysis between different forms of damage: loss of life, injuries, rape and sexual violence, recruitment of child soldiers, and displacement.
Different Forms of Damage, Different Degrees of Factual Certainty
Regarding each form of damage, the Court was faced with two main issues: determining the scope of the damage and determining the valuation of damage. These are essentially two factual issues, on which the probative value of evidence at the Court’s disposal varied.
The Court seems to have been best placed to approximate both the scope and value of damage to natural resources. Special credit goes to Michael Nest, the Court-appointed expert who was tasked with addressing matters related to this form of damage. The Court clearly appreciated his “methodologically solid and persuasive estimate [of the damage] on the basis of the available evidence” (para 364). His work not only provided important information on its scope and value but also allowed the Court to analyze whether the necessary causal nexus existed between Uganda’s violations and damage caused (see also paras 268-272).
On other forms of damage, the Court’s success was more mixed. For example, on injury to persons, the Court found itself unable to even approximate the number of injuries caused and without much data on the valuation of injuries (paras 180-181).
On rape and sexual violence, while emphasizing that such crimes are “frequently underreported and notoriously difficult to document,” the Court was not willing to rely on unsubstantiated methodology to fill the absence of evidence on the scope of such violence (para 189). However, on the issue of valuation, the Court highlighted an expert report submitted to the International Criminal Court (ICC) substantiating “an emerging standard” of compensation for victims of rape in DRC courts (para 192).
Conversely, on the issue of recruitment of child soldiers, while the Court was provided with evidence allowing it to approximate the number of victims, it considered evidence on valuation of such damage inadequate, inter alia considering a methodology employed by an ICC Trial Chamber not useful for present purposes (paras 205-206).
It is worth highlighting how the ICJ addressed the question of compensation due for loss of life. By a combination of shifting the burden of proof regarding deaths in Ituri, relying on the methodology of an expert as a conservative benchmark, and using information provided in documents produced by certain UN agencies, the Court was able to approximate that 10,000-15,000 persons died as a result of Uganda’s violations of international law (paras 161-162). However, on the issue of valuation, the Court appears to have struggled. It was unconvinced by the DRC’s evidence on the amount of compensation provided by DRC courts to the families of war crimes victims, and was unpersuaded by its own expert witness’s reliance on the UN Claims Commission’s approach (para 163). Nevertheless, the ICJ did identify relevant components in reaching the amount of compensation due for loss of life. These included “losses of the surviving heirs or successors,” medical and burial fees, and non-material damage resulting from the psychological harm to relatives (para 164).
A conspicuous feature of the ICJ’s application of the law to the facts—which will be the focus of much of the observations below—was the absence of indications as to the amount of compensation ordered for each form of damage. Instead the Court only pronounced on the figures of compensation due for each class of damage in the form of a “global sum”: $225,000,000 for damage to persons (para 226), $40,000,000 for damage to property (para 258) and $60,000,000 for damage to natural resources (para 366). Questions abound. For example, what sum did the Court consider appropriate for valuating loss of life? What number of victims of rape and sexual violence did the Court ultimately decide upon? The judgment does not address these issues.
Jus ad Bellum and Jus in Bello Interplay
Finally, while not a central theme in the judgment, it is worth highlighting some issues of particular relevance to the jus ad bellum—a term the Court itself used (e.g., para 123) —and IHL. The Court made clear that the obligation to provide compensation for damage resulting from a violation of the jus ad bellum arises regardless whether the relevant act that caused damage was a violation of IHL or human rights law (para 214). The Court refused to order compensation for deaths of DRC military personnel because the DRC did not discharge its evidentiary burden, whereas a flexible standard of proof was inapplicable “since a State can be expected to possess at least minimal records regarding its own armed forces” (para 165).
Additionally, the specific breaches involved do not themselves affect the amount of compensation due. Thus, for example, the ICJ considered there was “no basis to draw a distinction between two types of displacement … based on whether the victims fled their homes in order to escape deliberate acts of violence against civilian populations or were driven from their homes by the fighting” (para 224; see also para 164).
Observations on the Judgment
In addition to its specific findings on compensation (see Diane Desierto’s analysis of the judgment), it seems fair to say that the Court’s judgment will go down as one of the its seminal judgments relating to its evidentiary procedure. In particular, while other judgments have alluded to a particular standard of proof applicable—but often not to the satisfaction of judges trained in Anglo-American tradition (see Judges Shahabuddeen, Higgins and Greenwood)—I am unaware of an ICJ judgment entering into as much detail on the subject.
Additionally, the Court’s judgment tells a cautionary tale about the use of Court-appointed experts—one to contrast with calls in recent years for the ICJ to make greater use of this tool. While the Court appears to have pinned its hopes for overcoming some of the evidentiary challenges by appointing its own independent experts, the harsh reality is that only one of the four experts appears to have significantly assisted the Court in its assessment. Another expert provided certain data the Court found useful, but the ICJ seems to have found little evidentiary value in the information provided by two other experts. Otherwise, as Judge ad hoc Daudet hinted in his dissenting opinion, it seems that Uganda’s counsel did an effective job of hammering home the argument that the evidence available did not relieve the DRC of its burden of proof.
The Court’s Light Reasoning
A concerning aspect of the judgment, alluded to earlier, is the paucity of reasoning in support of the “global sums” of compensation. As a few judges noted in their individual opinions, the Court’s lumping of compensation into large single sums will make it difficult for the DRC to distribute compensation to the victims of Uganda’s violations based on the proportion allocated for each injury (see Judges Yusuf, Salam, Daudet). The Court welcomed the DRC’s decision to establish a fund to ensure compensation “will be fairly and effectively distributed to victims of the harm” (para 408), but the use of “global sums” will present challenges nevertheless.
Beyond these practical difficulties, the absence of reasoning raises serious legal issues. Some of these issues were alluded to in individual opinions (see Judges Tomka, Yusuf, Robinson)—including those appended by two former Presidents of the Court—but they deserve further attention.
Pursuant to article 56 of the ICJ Statute, “[t]he judgment shall state the reasons on which it is based.” It seems plausible to argue that this condition is found also in customary international law (see Abi-Saab, 245; and the classic work of Carlston) and that, as a rule governing the exercise of power, is a condition for the validity of a judgment (see Hart, 35). As Judge Yusuf explained in his separate opinion, reasoning “contributes not only to greater transparency in the Court’s decision-making function, but also to the authority and persuasiveness that its Judgments command in the field of international law.”
When may it be said that a judgment is sufficiently reasoned? The ICJ’s own jurisprudence in Guinea-Bissau v Senegal suggests that it must be “possible to determine, without difficulty, the reasons” for the decision (see also Schreuer, 1003). In the present case, the lumping of various forms of damage into a “global sum” arguably obfuscates, rather than clarifies, the Court’s reasons for its award of particular sums of compensation.
Furthermore, the “global sum” approach cannot be justified by application of lex specialis. Leaving aside doctrinal difficulties in identifying a carve-out of this sort, the Court refers to the Ethiopia-Eritrea Claims Commission (EECC) as authority for its approach, though its reliance on the EECC would seem unfounded. As Judge Robinson observed—and a perusal of the EECC’s parallel final awards reflects—“[t]he EECC awarded compensation in the form of a specific sum for each category of injury.”
It is of course unrealistic to expect highly elaborated reasoning from a Court in which more or less 15 judges sit on each case and where an effort is made to achieve broad consensus on such reasoning (cf. Bedjaoui, 58). Nevertheless, “[t]here are inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never ignore” (Northern Cameroons, 29). It is respectfully suggested that these limitations relate inter alia to the minimum reasoning necessary for a judgment to be validly rendered; it is questionable whether these limits have been respected in the present case.
Despite the criticisms made, it is clear the ICJ was faced with an unenviable task in assessing the amount of compensation due for damage sustained by the DRC and its people. As Judge ad hoc Daudet emphasized—despite dissenting—the Court did the best it could under the circumstances to determine the amount of compensation due for each head of damage.
Moreover, regardless what one thinks of the judgment, it will likely go down as one of the ICJ’s most significant judgments in recent years. Perhaps Judge Robinson best summed up large parts of the judgment when making the following observation on the ICJ’s methodology in quantifying damage to persons: “the Court is in a ‘brave new world’ in the approach that it has adopted of making a final award in respect of the five categories of injuries [of damage to persons], without previously making specific awards for those five categories.”
Ori Pomson is a PhD candidate at the Faculty of Law of the University of Cambridge.
Photo credit: UN Photo/ICJ-CIJ/Frank van Beek