A Primer on the ICJ’s Upcoming Armed Activities Reparations Judgment
On February 9, 2022, the International Court of Justice (ICJ) will render its judgment on the question of reparations in the Armed Activities on the Territory of the Congo case between the Democratic Republic of the Congo (DRC) and Uganda. The principal judicial organ of the United Nations does not often render judgments that relate to the law on the use of force (jus ad bellum) and international humanitarian law (IHL)—let alone on the issue of reparations. Moreover, the judgment is also expected to touch upon more general issues of international law—particularly related to the law of State responsibility—and issues of procedure.
This post provides a primer on the upcoming judgment. It will first provide background on the origins of the case and its (prolonged) procedural history. It will then map out some of the main points of contention between the DRC and Uganda, as well as the issues the ICJ will likely address. A post analyzing the Court’s judgment will follow after it is rendered.
The DRC v. Uganda case should be placed in its broader context of the armed conflicts in the Great Lakes region of Africa since the 1990s. Although a detailed analysis of the nature of these conflicts is beyond the scope of the present post, it must be noted these conflicts have been among the most tragic since the Second World War. In the DRC alone there have reportedly been 5.4 million excess deaths during the years 1998-2007.
The conflicts in the Great Lakes region were—and still are—highly complex, involving a number of States and non-State actors, with relationships of various forms between different factions, and with numerous interests at play. Several factions have been in conflict on the DRC’s territory, including direct hostilities between Rwanda and Uganda in the city of Kisangani.
On June 23, 1999, the DRC instituted respective proceedings in the ICJ against its eastern neighbors Burundi, Rwanda, and Uganda relating to violations of international law in the context of the Great Lakes conflict. Whereas the parties discontinued the proceedings against Burundi and the Court dismissed for lack of jurisdiction reinstituted proceedings against Rwanda in 2006, the Court adjudicated on its merits the DRC’s application against Uganda and issued a judgment in late 2005.
The ICJ’s 2005 Judgment
The Court’s 2005 judgment addressed a range of claims concerning Uganda’s responsibility for violations of international law. It is indeed a seminal judgment on both jus ad bellum and IHL. In particular, the ICJ found that Uganda’s military activities on the territory of the DRC, as well as the assistance it provided to armed groups therein, constituted violations of the prohibition on the use of force and non-intervention (paras 148-165). Importantly, the Court determined that while the DRC had previously consented to Ugandan forces operating in its territory, that consent had been withdrawn by August 1998 (para 53) and Uganda did not have a valid right of self-defense for its armed presence in the DRC, which ended with its withdrawal in 2003 (para 147).
The Court also found that Uganda had violated numerous IHL obligations and international human rights law on the territory of the DRC generally, and specifically in the context of Uganda’s belligerent occupation of the Ituri district (para 220). Violations included indiscriminate attacks (para 208), recruitment of child soldiers (para 210), as well as “acts of looting, plundering and exploitation of the DRC’s natural resources” (para 250). It should be noted that the Court also upheld one of Uganda’s counterclaims, relating to acts against the Ugandan Embassy and maltreatment of diplomatic staff in the DRC capital of Kinshasa (para 340).
On the issue of reparations, the Court made the following pronouncement (para 260):
The Court further considers appropriate the request of the DRC for the nature, form and amount of the reparation due to it to be determined by the Court, failing agreement between the Parties, in a subsequent phase of the proceedings. The DRC would thus be given the opportunity to demonstrate and prove the exact injury that was suffered as a result of specific actions of Uganda constituting internationally wrongful acts for which it is responsible.
The Court also emphasized that its findings on the merits are res judicata, and thus may not be relitigated.
The Prolonged but Failed Negotiations
Why is the Court only now, more than 16 years later, rendering a judgment on reparations? For nearly ten years, the DRC and Uganda negotiated reparations to be provided as a result of the Court’s merits judgment. The DRC did not request the ICJ to begin proceedings on compensation until 2015. While the Court acceded to this request, a number of delays, insisted upon by one or both of the parties struck the reparations pleadings, including a final attempt by the parties “to amicably settle the question of reparations by bilateral agreement.”
Interestingly, before oral proceedings were scheduled for a third time, and pursuant to Article 50 of the ICJ Statute, the Court appointed four independent experts to draft a report on issues relating to the loss of life, loss of natural resources and damage to property in the DRC. Uganda objected to the Court’s decision—on the basis that it “reliev[es] the DRC of the primary responsibility to prove her claim”—making this the first time the ICJ commissioned an expert opinion despite the explicit objections of one of the parties (see Judge Sebutinde’s separate opinion). After the experts issued their report—and responded to the parties’ observations thereon—the Court held public hearings in April 2021, which included cross-examination by the parties’ counsel of the Court’s experts.
The Issues at Stake
While the ICJ has faced somewhat complex questions relating to reparations in the past—most recently with quantifying reparation for environmental damage—it is fair to say that the present proceedings have placed before the Court its most formidable challenge (to date) in assessing reparations. The sheer scale of the violations of international law concerned and the complexity of the situation are key sources of difficulty. While the Court, of course, made findings of fact in its 2005 judgment, these were often—as the Court itself acknowledged—at a general level, rather than precise findings on the scale of damage.
In total, the DRC is requesting compensation of approximately $11.3 billion (USD). For its part, Uganda requested that the Court adjudge and declare that “[t]he DRC is entitled to reparation in the form of compensation only to the extent it has discharged” its burden of proof, while maintaining the DRC has consistently failed to discharge that burden.
It is beyond the scope of this post to elaborate on all the arguments and intricacies raised in the parties’ pleadings. Rather, the following will highlight a few central issues argued and relevant to the anticipated judgment.
Reparation under the Law of State Responsibility
As stated in the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), “[t]he responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act” (article 31(1)), whereas “[t]he State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution” (article 36). As implied in the these provisions, and as the ARSIWA Commentary explains, there must be a “sufficient causal link which is not too remote.”
The ICJ has itself provided in Bosnia v Serbia that there must be “a sufficiently direct and certain causal nexus between the wrongful act … and the injury suffered.” In theory, this seems somewhat straightforward. Yet, their application in casu is complex, particularly considering the numerous States and armed groups that have contributed to death and destruction in the DRC.
What proportion of compensation is owed when a State’s use of force and intervention were inter alia conducted through assistance to an armed group, as was the case regarding some of Uganda’s violation of these rules? Must Uganda compensate the DRC for damage (potentially) caused by Rwanda during the hostilities between the former and the latter in Kisangani? It is on these and other issues that the parties sparred during the proceedings, and these issues are the ones the Court may need to address, depending whether the necessary facts have been proved.
Proving Facts: Burden and Standard of Proof
Factual complexities compound these difficulties. In addition to numerous fighting factions—which present a number of entities that potentially caused specific damage—contemporary official records are often simply unavailable, due in large part to the conflict itself.
In the ICJ’s jurisprudence, it is generally accepted that “it is the litigant seeking to establish a fact who bears the burden of proving it.” The Court has in the past found room for exception, though it has hesitated before doing so. In this regard—though rejected by Uganda—the DRC has argued that “[t]he burden of proof and its discharge are tempered by the nature and scale of the harms caused by an unlawful armed conflict and, of course, by the passage of time.” In any event, the allocation of the burden of proof is crucial, because when the burden is not met, the purported fact cannot be considered proven.
An additional issue concerns the degree of certainty required to make a finding of fact? Lawyers trained in the Anglo-American tradition are generally familiar with two standards—the balance of probabilities standard in civil cases and the beyond reasonable doubt standard in criminal cases. However, international courts and tribunals generally follow the Continental approach of l’intime conviction du juge (Pauwelyn, 103)—a judge-focused subjective standard of persuasiveness. As Judge Higgins observed, “[b]eyond a general agreement that the graver the charge the more confidence must there be in the evidence relied on, there is thus little to help parties appearing before the Court … as to what is likely to satisfy the Court.”
The parties have advocated different standards of proof. The DRC argued that a flexible standard should be applied, highlighting the less charged nature of reparation proceedings and practical difficulties of a high standard. Conversely, Uganda has argued that the DRC must discharge its burden “with convincing evidence that establishes, with a high level of certainty” (emphasis in original), its claims; it contends that the DRC’s claims involve severe allegations relating to the scale of Uganda’s responsibility. Ultimately, the more flexible the standard of proof, the less exacting the methodology for assessing the extent of the damage caused and causality.
Assuming damage has been proved, the question remains which methods are applicable for quantifying compensation. How is human life to be measured? How is non-material damage—such as economic loss—assessed? It is plausible that, in light of its past practice, the ICJ will refer to the practice of other international mechanisms, and particularly those that assessed damages in large scale armed conflict, such as the UN Claims Commission and the Eritrea-Ethiopia Claims Commission.
It remains to be seen if and how the ICJ will address these and other issues. Nevertheless, there are very important substantive and procedural issues at stake in the upcoming judgment, which should be of interest to IHL specialists and international law generalists alike. The judgment will be read at 3pm in The Hague (9am Eastern Time) on February 9 and will be broadcasted live on UN Web TV—stay tuned.
Ori Pomson is a PhD candidate at the Faculty of Law of the University of Cambridge.