On 23 June 1999, the Democratic Republic of the Congo (hereinafter the “DRC”)
filed in the Registry of the Court an Application instituting proceedings against the
Republic of Uganda (hereinafter “Uganda”) in respect of a dispute concerning “acts
of armed aggression perpetrated by Uganda on the territory of the Democratic
Republic of the Congo, in flagrant violation of the United Nations Charter and of
the Charter of the Organization of African Unity” (emphasis in the original). In
order to found the jurisdiction of the Court, the Application relied on the
declarations made by the two Parties accepting the Court’s compulsory jurisdiction
under Article 36, paragraph 2, of the Statute of the Court.
In its Judgment dated 19 December 2005 (hereinafter the “2005 Judgment”), the
Court found, inter alia, with respect to the claims brought by the DRC, that:
“the Republic of Uganda, by engaging in military activities against the Democratic
Republic of the Congo on the latter’s territory, by occupying Ituri and by actively
extending military, logistic, economic and financial support to irregular forces
having operated on the territory of the DRC, violated the principle of non-use of
force in international relations and the principle of non-intervention” (Armed
Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda), Judgment,
I.C.J. Reports 2005, p. 280, para. 345, subpara. (1) of the operative part);
“the Republic of Uganda, by the conduct of its armed forces, which committed acts
of killing, torture and other forms of inhumane treatment of the Congolese civilian
population, destroyed villages and civilian buildings, failed to distinguish between
civilian and military targets and to protect the civilian population in fighting with
other combatants, trained child soldiers, incited ethnic conflict and failed to take
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measures to put an end to such conflict; as well as by its failure, as an occupying
Power, to take measures to respect and ensure respect for human rights and
international humanitarian law in Ituri district, violated its obligations under
international human rights law and international humanitarian law” (ibid., p. 280,
para. 345, subpara. (3) of the operative part); and
“the Republic of Uganda, by acts of looting, plundering and exploitation of
Congolese natural resources committed by members of the Ugandan armed forces
in the territory of the Democratic Republic of the Congo and by its failure to
comply with its obligations as an occupying Power in Ituri district to prevent acts of
looting, plundering and exploitation of Congolese natural resources, violated
obligations owed to the Democratic Republic of the Congo under international law”
(ibid., pp. 280-281, para. 345, subpara. (4) of the operative part).
With respect to these violations, the Court found that Uganda was under an
obligation to make reparation to the DRC for the injury caused (ibid., p. 281, para.
345, subpara. (5) of the operative part).
In relation to the counter-claims presented by Uganda, the Court found that:
“the Democratic Republic of the Congo, by the conduct of its armed forces, which
attacked the Ugandan Embassy in Kinshasa, maltreated Ugandan diplomats and
other individuals on the Embassy premises, maltreated Ugandan diplomats at Ndjili
International Airport, as well as by its failure to provide the Ugandan Embassy and
Ugandan diplomats with effective protection and by its failure to prevent archives
and Ugandan property from being seized from the premises of the Ugandan
Embassy, violated obligations owed to the Republic of Uganda under the Vienna
Convention on Diplomatic Relations of 1961” (2005 Judgment, I.C.J. Reports
2005, p. 282, para. 345, subpara. (12) of the operative part).
With respect to these violations, the Court found that the DRC was under an
obligation to make reparation to Uganda for the injury caused (ibid., p. 282, para.
345, subpara. (13) of the operative part).
1. The Court further decided in its 2005 Judgment that, failing agreement
between the Parties, the question of reparations due would be settled by the Court
(ibid., pp. 281-282, para. 345, subparas. (6) and (14) of the operative part).
2. In view of the failure by the Parties to settle the question of reparations by
agreement, it now falls to the Court to determine the nature and amount of
reparations to be awarded to the DRC for injury caused by Uganda’s violations of
its international obligations, pursuant to the findings of the Court set out in the 2005
Judgment. The Court begins by recalling certain elements on which it based that
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Judgment.
3. The Court will take the context of this case into account when determining
the extent of the injury and assessing the reparation owed (see Parts III and IV
below). It will first examine the principles and rules applicable to the assessment of
reparations in the present case, before addressing questions of proof and the forms
of damage subject to reparation.
The principles and rules applicable to the assessment of reparations in the
present case
The Court recalls that, in its 2005 Judgment, it found that Uganda was under an
obligation to make reparation for the damage caused by internationally wrongful
acts (actions and omissions) attributable to it:
“259. The Court observes that it is well established in general international law that
a State which bears responsibility for an internationally wrongful act is under an
obligation to make full reparation for the injury caused by that act (see Factory at
Chorzów, Jurisdiction, 1927, P.C.I.J., Series A, No. 9, p. 21; GabčíkovoNagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 81,
para. 152; Avena and Other Mexican Nationals (Mexico v. United States of
America), Judgment, I.C.J. Reports 2004, p. 59, para. 119). Upon examination of
the case file, given the character of the internationally wrongful acts for which
Uganda has been found responsible (illegal use of force, violation of sovereignty
and territorial integrity, military intervention, occupation of Ituri, violations of
international human rights law and of international humanitarian law, looting,
plunder and exploitation of the DRC’s natural resources), the Court considers that
those acts resulted in injury to the DRC and to persons on its territory. Having
satisfied itself that this injury was caused to the DRC by Uganda, the Court finds
that Uganda has an obligation to make reparation accordingly.” (2005 Judgment,
I.C.J. Reports 2005, p. 257, para. 259.)
As regards reparation, Article 31 of the International Law Commission’s Articles
on Responsibility of States for Internationally Wrongful Acts (hereinafter the “ILC
Articles on State Responsibility”), which reflects customary international law,
provides that:
“1. The responsible State is under an obligation to make full reparation for the
injury caused by the internationally wrongful act.
2. Injury includes any damage, whether material or moral, caused by the
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internationally wrongful act of a State.”
71. In view of the foregoing, the Court will determine the principles and rules
applicable to the assessment of reparations in the present case, first, by
distinguishing between the different situations that arose during the conflict in Ituri
and in other areas of the DRC (Subsection 1); second, by analyzing the required
causal nexus between Uganda’s internationally wrongful acts and the injury
suffered by the Applicant (Subsection 2); and, finally, by examining the nature,
form and amount of reparation (Subsection 3).
The causal nexus between the internationally wrongful acts and the injury
suffered
85. The Parties differ on whether reparation should be limited to the injury
directly linked to an internationally wrongful act or should also cover the indirect
consequences of that act.
The Court may award compensation only when an injury is caused by the
internationally wrongful act of a State. As a general rule, it falls to the party seeking
compensation to prove the existence of a causal nexus between the internationally
wrongful act and the injury suffered. In accordance with the jurisprudence of the
Court, compensation can be awarded only if there is “a sufficiently direct and
certain causal nexus between the wrongful act . . . and the injury suffered by the
Applicant, consisting of all damage of any type, material or moral” (ibid., pp. 233-
234, para. 462). The Court applied this same criterion in two other cases in which
the question of reparations arose. (Certain Activities Carried Out by Nicaragua in
the Border Area (Costa Rica v. Nicaragua), Compensation, Judgment, I.C.J.
Reports 2018 (I), p. 26, para. 32; Ahmadou Sadio Diallo (Republic of Guinea v.
Democratic Republic of the Congo), Compensation, Judgment,I.C.J. Reports 2012
(I), p. 332, para. 14). However, it should be noted that the causal nexus required
may vary depending on the primary rule violated and the nature and extent of the
injury.
86. In particular, in the case of damage resulting from war, the question of the
causal nexus can raise certain difficulties. In a situation of a long-standing and
large-scale armed conflict, as in this case, the causal nexus between the wrongful
conduct and certain injuries for which an applicant seeks reparation may be readily
established. For some other injuries, the link between the internationally wrongful
act and the alleged injury may be insufficiently direct and certain to call for
reparation. It may be that the damage is attributable to several concurrent causes,
including the actions or omissions of the respondent. It is also possible that several
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internationally wrongful acts of the same nature, but attributable to different actors,
may result in a single injury or in several distinct injuries. The Court will consider
these questions as they arise, in light of the facts of this case and the evidence
available. Ultimately, it is for the Court to decide if there is a sufficiently direct and
certain causal nexus between Uganda’s internationally wrongful acts and the
various forms of damage allegedly suffered by the DRC (see Part II, Section A
above).
87. The Court is of the opinion that, in analysing the causal nexus, it must make a
distinction between the alleged actions and omissions that took place in Ituri, which
was under the occupation and effective control of Uganda, and those that occurred
in other areas of the DRC, where Uganda did not necessarily have effective control,
notwithstanding the support it provided to several rebel groups whose actions gave
rise to damage. The Court recalls that Uganda is under an obligation to make
reparation for all damage resulting from the conflict in Ituri, even that resulting
from the conduct of third parties, unless it has established, with respect to a
particular injury, that it was not caused by Uganda’s failure to meet its obligations
as an occupying Power (see paragraph 78 above).
88. Lastly, the Court cannot accept the Respondent’s argument based on an analogy
with the 2007 Judgment in the case concerning Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Serbia and Montenegro), I.C.J. Reports 2007 (I), p. 234, para. 462, in which the
Court expressly “confine[d] itself to determining the specific scope of the duty to
prevent in the Genocide Convention” and did not “purport to establish a general
jurisprudence applicable to all cases where a treaty instrument, or other binding
legal norm, includes an obligation for States to prevent certain acts” (ibid., pp. 220-
221, para. 429). The Court considers that the legal régimes and factual
circumstances in question are not comparable, given that, unlike the abovementioned Genocide case, the present case concerns a situation of occupation.
The nature, form and amount of reparation
99. The Court will recall certain international legal principles that inform the
determination of the nature, form and amount of reparation under the law on the
international responsibility of States in general and in situations of mass violations
in the context of armed conflict in particular.
100. It is well established in international law that “the breach of an engagement
involves an obligation to make reparation in an adequate form” (Factory at
Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21). This
is an obligation to make full reparation for the damage caused by an internationally
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wrongful act (Certain Activities Carried Out by Nicaragua in the Border Area
(Costa Rica v. Nicaragua), Compensation, Judgment, I.C.J. Reports 2018 (I), p. 26,
para. 30; Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the
Congo), Merits, Judgment, I.C.J. Reports 2010 (II), p. 691, para. 161; Avena and
Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J.
Reports 2004 (I), p. 59, para. 119; Gabčíkovo-Nagymaros Project
(Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 80, para. 150).
101. As stated in Article 34 of the ILC Articles on State Responsibility, “[f]ull
reparation for the injury caused by the internationally wrongful act shall take the
form of restitution, compensation and satisfaction, either singly or in combination”.
Thus, compensation may be an appropriate form of reparation, particularly in those
cases where restitution is materially impossible (Certain Activities Carried Out by
Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation,
Judgment,
I.C.J. Reports 2018 (I), p. 26, para. 31; Pulp Mills on the River Uruguay (Argentina
v. Uruguay), Judgment, I.C.J. Reports 2010 (I), pp. 103-104, para. 273).
102. In view of the circumstances of the present case, the Court emphasizes that it
is well established in international law that reparation due to a State is
compensatory in nature and should not have a punitive character (Certain Activities
Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Compensation, Judgment, I.C.J. Reports 2018 (I), p. 26, para. 31). The Court
observes, moreover, that any reparation is intended, as far as possible, to benefit all
those who suffered injury resulting from internationally wrongful acts (see
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo),
Compensation, Judgment, I.C.J. Reports 2012 (I), p. 344, para. 57).
The Court is convinced that it should proceed in this manner in the present case. It
will take due account of the above-mentioned conclusions regarding the nature,
form and amount of reparation when considering the different forms of damage
claimed by the DRC.
On the basis of all the preceding considerations (see paragraphs 133-225 above,
specifically 166, 181, 193, 206 and 225), and given that Uganda has not established
that particular injuries alleged by the DRC in Ituri were not caused by its failure to
meet its obligations as an occupying Power, the Court finds it appropriate to award
a single global sum of US$225,000,000 for the loss of life and other damage to
persons.
257. The Court recalls that it may, under the exceptional circumstances of the
present case, award compensation in the form of a global sum, within the range of
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possibilities indicated by the evidence and taking into account equitable
considerations (see paragraph 106 above). The Court notes that the available
evidence in relation to damage to property caused by Uganda is limited, but the
Mapping Report at least substantiates many instances of damage to property caused
by Uganda. Taking into account all the available evidence (see paragraphs 230-253
above), the proposals regarding the assignment of value to damage to property (see
paragraphs 234-235 and 239 above), as well as its jurisprudence and the
pronouncements of other international bodies (see paragraphs 69-126 above), the
Court will award compensation for damage to property as a global sum of
US$40,000,000 (see paragraph 106 above).
364. Taking into account all the available evidence (see paragraphs 260-363 above,
specifically 298, 310, 322, 332, 344, 363), in particular the findings and estimates
contained in the report by the Court-appointed expert Mr. Nest, as well as its
jurisprudence and the pronouncements of other international bodies (see paragraphs
69-126 above), the Court will award compensation for the looting, plundering and
exploitation of natural resources in the form of global sum of US$60,000,000.
365. The Court concludes that 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. The Court therefore cannot
award compensation to the DRC for losses allegedly arising from the general
disruption to the economy as a result of the conflict (see EECC, Final Award,
Ethiopia’s Damages Claims, Decision of 17 August 2009, RIAA, Vol. XXVI, p.
747, para. 395). The Court thus rejects the claim of the DRC for macroeconomic
damage.
SATISFACTION
366. The DRC argues that, regardless of the amount awarded by the Court,
compensation as a form of reparation is not sufficient to remedy fully the damage
caused to the DRC and its population. It therefore asks that Uganda be required to
give satisfaction through: (i) the criminal investigation and prosecution of officers
and soldiers of the UPDF; (ii) the payment of US$25 million for the creation of a
fund to promote reconciliation between the Hema and the Lendu in Ituri; and (iii)
the payment of US$100 million for the non-material harm suffered by the DRC as a
result of the war.
367. Uganda, for its part, is of the view that the DRC’s request for criminal
investigations and prosecutions is a new liability claim which was not brought at
the merits phase. Furthermore, it asserts that the claim for a payment of US$125
million concerns the same injury already covered by the DRC’s other claims, and
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that, in any event, satisfaction should take the form of a purely symbolic payment.
368. Before examining the three forms of satisfaction sought by the DRC, the Court
recalls that, in general, a declaration of violation is, in itself, appropriate satisfaction
in most cases (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment,
I.C.J. Reports 2010 (I), p. 106, para. 282 (1); Certain Questions of Mutual
Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports
2008, p. 245, para. 204; Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 234, para. 463, and p. 239, para.
471 (9); Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J.
Reports 1949, p. 35). However, satisfaction can take an entirely different form
depending on the circumstances of the case, and in so far as compensation does not
wipe out all the consequences of an internationally wrongful act.
369. As regards the first measure sought by the DRC, namely the conduct of
criminal investigations and prosecutions, the Court recalls that under Article 37 of
the ILC Articles on State Responsibility:
“1. The State responsible for an internationally wrongful act is under an obligation
to give satisfaction for the injury caused by that act insofar as it cannot be made
good by restitution or compensation.
2. Satisfaction may consist in an acknowledgement of the breach, an expression of
regret, a formal apology or another appropriate modality.”
370. The Court observes that the forms of satisfaction listed in the second
paragraph of this provision are not exhaustive. In principle, satisfaction can include
measures such as “disciplinary or penal action against the individuals whose
conduct caused the internationally wrongful act” (commentary to Article 37 of the
ILC Articles on State Responsibility, Yearbook of the International Law
Commission, 2001, Vol. II, Part Two, p. 106, para. 5).
371. The Court recalls that, in its 2005 Judgment, it found that Ugandan troops had
committed grave breaches of the Geneva Conventions. The Court observes that,
pursuant to Article 146 of the Fourth Geneva Convention relative to the Protection
of Civilian Persons in Time of War of 12 August 1949 and to Article 85 of the
Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to
the Protection of Victims of International Armed Conflicts (Protocol I), Uganda has
a duty to investigate, prosecute and punish those responsible for the commission of
such violations. There is no need for the Court to order any additional specific
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measure of satisfaction relating to the conduct of criminal investigations or
prosecutions. The Respondent is required to investigate and prosecute by virtue of
the obligations incumbent on it.
372. As regards the second measure of satisfaction sought by the DRC, namely the
payment of US$25 million for the creation of a fund to promote reconciliation
between the Hema and the Lendu in Ituri, the Court recalls that in its 2005
Judgment it considered that the UPDF had “incited ethnic conflicts and t[aken] no
action to prevent such conflicts in Ituri district” (I.C.J. Reports 2005, p. 240, para.
209). In this case, however, the material damage caused by the ethnic conflicts in
Ituri is already covered by the compensation awarded for damage to persons and to
property. The Court nevertheless invites the Parties to co-operate in good faith to
establish different methods and means of promoting reconciliation between the
Hema and Lendu ethnic groups in Ituri and ensure lasting peace between them.
373. Lastly, the Court cannot uphold the third measure of satisfaction sought by the
DRC, namely the payment of US$100 million for non-material harm. There is no
basis for granting satisfaction for non-material harm to the DRC in such
circumstances, given the subject-matter of reparation in international law and
international practice in this regard. The EECC rejected Ethiopia’s claim for moral
damage suffered by Ethiopians and by the State itself on account of Eritrea’s illegal
use of force (Final Award, Ethiopia’s Damages Claims, Decision of 17 August
2009, RIAA, Vol. XXVI, p. 662, paras. 54-55, and p. 664, para. 61). In the
circumstances of the case, the Court considers that the non-material harm for which
the DRC seeks satisfaction is included in the global sums awarded by the Court for
various heads of damage.
TOTAL SUM AWARDED
374. The total amount of compensation awarded to the DRC is US$325,000,000.
This global sum includes US$225,000,000 for damage to persons, US$40,000,000
for damage to property, and US$60,000,000 for damage related to natural
resources.
375. The total sum is to be paid in annual instalments of US$65,000,000, due on 1
September of each year, from 2022 to 2026. The Court decides that, should
payment be delayed, post-judgment interest at an annual rate of 6 per cent on each
instalment will accrue on any overdue amount from the day which follows the day
on which the instalment was due.
376. The Court is satisfied that the total sum awarded, and the terms of payment,
remain within the capacity of Uganda to pay. Therefore, the Court does not need to
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consider the question whether, in determining the amount of compensation, account
should be taken of the financial burden imposed on the responsible State, given its
economic condition (see paragraph 110 above).
377. The Court notes that the reparation awarded to the DRC for damage to persons
and to property reflects the harm suffered by individuals and communities as a
result of Uganda’s breach of its international obligations. In this regard, the Court
takes full cognizance of, and welcomes, the undertaking given by the Agent of the
DRC during the oral proceedings regarding the fund that has been established by
the Government of the DRC, according to which the compensation to be paid by
Uganda will be fairly and effectively distributed to victims of the harm, under the
supervision of organs whose members include representatives of victims and civil
society and whose operation is supported by international experts. In distributing
the sums awarded, the fund is encouraged to consider also the possibility of
adopting measures for the benefit of the affected communities as a whole.
378. For these reasons, the Court fixes the following amounts for the compensation
due from the Republic of Uganda to the Democratic Republic of the Congo for the
damage caused by the violations of international obligations by the Republic of
Uganda, as found by the Court in its Judgment of 19 December 2005: (a) US $40
million for damage to property (b) US $ 225 million for damage to persons (c) US
$ 60 million for damage to natural resources (d) the total amount due under point
(b) shall be paid in 5 annual installment of US $ 65 million starting on 1September
2022 (d) should payment be delayed, post-judgment interest of 6% will accrue on
any overdue amount as from the day which follows the day on which the
installment was due € rejects the request of the DRC that the costs it incurred in the
present case be borne by the Republic of Uganda.
