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Article Excerpt
CONTENTS
I Introduction II Factual Matrix, Issues in Dispute and Summary of Findings III Self-Defence, Failed States and Non-State Actors IV An Act of Aggression? V Extra-Legal Zones and Persons VI Explaining the Judgment's Silence VII Law and Politics in the Judgment and Separate Opinions VIII Conclusions
I INTRODUCTION
It is widely recognised that international relations--indeed the very structure and actors comprising the international scene--have changed enormously since the establishment of the United Nations at the end of the Second World War. (1) In particular, the period in international relations following September 11, 2001--and especially since the invasion of Iraq in 2003 by a United States-led coalition--has been variously depicted as a 'new constitutional moment', (2) a 'difficult and precarious transitional moment in the international legal system governing the use of force', (3) and a 'Grotian Moment'. (4) The invasion of Iraq itself has been described as marking 'a crucial moment in the history of international law', (5) and having about it 'an aura of ominous implication for international order'. (6)
The 2005 Armed Activities on the Territory of the Congo decision (7) of the International Court of Justice addresses a wide range of important issues in international law, including: the concept of self-defence; the prohibition against the use of force; belligerent occupation; the application of international human rights law and international humanitarian law; and the illegal exploitation of natural resources. The Court's judgment is, at first glance, impressively thorough. (8) However, the judgment seems blissfully unaware of the 'war on terror' which has dominated international relations and international legal scholarship since 2001. (9)
The judgment's silence is particularly surprising in relation to three interrelated clusters of issues: pre-emptive and anticipatory self-defence, particularly in regards to non-state actors and 'failed states'; the question of whether Uganda had committed an act of aggression; and the problem of 'human rights-free zones' in international human rights law and international humanitarian law. Following a brief outline of the factual matrix of the case, the issues in dispute and the Court's findings, this case note examines the Court's treatment of each of these issues in turn, and explores some possible explanations for the judgment's silence on the relevance of those issues within a wider contemporary context. This case note highlights the way in which the judgment quarantines law from politics, and how that distinction is paradoxically reinforced by the separate opinions of several members of the Court.
II FACTUAL MATRIX, ISSUES IN DISPUTE AND SUMMARY OF FINDINGS
The ICJ action by the Democratic Republic of the Congo ('DRC') against Uganda emerged from a complex set of circumstances following the overthrow of the Congo's long-time President, Mobutu Sese Seko, in 1997. (10) Mobutu came to power in the mid-1960s, and had ruled since then with the support of the US, France and Belgium. (11) With the end of the Cold War, that support weakened and Mobutu's increasingly cruel, kleptocratic and corrupt autocracy became vulnerable to political opposition. (12) Around the same time, ethnic divisions in neighbouring Rwanda were growing, reaching a climax with the genocide of Tutsis in April-July 1994, (13) and ending with the overthrow of the Hutu government. An exodus of Hutu refugees--including many former militia and genocidaires--crossed Rwanda's border into camps maintained by the United Nations High Commissioner for Refugees, further destabilising Mobutu's Congo. (14) These camps became launching pads for attacks on Rwanda and the Congolese Tutsis (Banyamulenge). (15) When Rwanda's pleas for international assistance went unheeded, the Rwandan army combined with the Banyamulenge and other opposition groups in the Congo to attack the Hutu refugee camps and marched onwards to Kinshasa with help from Uganda, Burundi and Angola. (16)
The rebel leader who emerged, and who eventually succeeded Mobutu in May 1997, was Laurent-Desire Kabila. As time passed, however, popular opinion in the Congo gradually hardened against the foreign invaders, as well as against the Banyamulenge who were seen to be holding high positions in Kabila's government and army. (17) Although anti-Tutsi feelings had previously existed in the Congo, these sentiments intensified with numerous incidents of harassment and humiliation of local populations by Rwandan and Banyamulenge soldiers, and soon crystallised into anti-Tutsi movements and organisations. (18) These developments required Kabila to distance himself from his foreign sponsors, making public announcements and taking other steps to assert Congolese independence of Rwanda in particular. (19) Meanwhile, Kabila was unable to gain control of the Congo's border areas, which were crucial to Ugandan and Rwandan security. (20) On 27 July 1998, Kabila ordered all foreign troops to leave the Congo's territory. (21) Soon afterwards, more Ugandan and Rwandan soldiers crossed into the Congo and began intermittent clashes with DRC troops. (22)
The 'Second Congo War' (1998-2003--the events of which were in dispute in Armed Activities--involved, at one time or another, the forces of no fewer than nine African countries in armed conflict on the Congo's territory. A variety of rebel groups and other non-state militia were also involved in this conflict. (23) In early August 1998, a newly formed rebel movement against Kabila, led by mutinous Congolese army units, received support from Ugandan, Rwandan and Burundian troops. (24) In late August 1998, Angola, Zimbabwe and Namibia intervened in support of Kabila. (25) By September 1998, Chad, Libya and the Sudan had also come to Kabila's aid. (26) Shiffing allegiances and motivations make it very difficult if not impossible to identify culpability for each of the innumerable human rights abuses committed during this time by both state and non-state parties. Suffice it to say that these wars--and the ongoing conflicts in the Congo--have been conducted at the expense of millions of lives. (27)
In Armed Activities, the DRC claimed that Uganda had violated conventional and customary international law in three areas: first, in relation to the principle of non-use of force, peaceful settlement of disputes, respect for sovereignty and non-interference in domestic matters, by occupying DRC territory and actively extending military, logistic, economic and financial support to irregular forces there; second, in relation to respect for sovereignty over natural resources, the right to self-determination, and non-interference in domestic matters, by illegally exploiting Congolese natural resources and pillaging its assets and wealth; and third, in relation to fundamental human rights, by committing acts of oppression, including killing, injuring, abducting or despoiling DRC nationals. (28) In summary, the Court found that Uganda had violated the sovereignty and territorial integrity of the DRC, interfered in the DRC's internal affairs and committed a grave violation of the prohibition against the use of force in art 2(4) of the Charter of the United Nations; (29) was an occupying power in part of the DRC; (30) was internationally responsible for violations of international human rights law and international humanitarian law; (31) and was internationally responsible for its military's looting, plundering and exploitation of the DRC's natural resources. (32) However, the Court did not uphold the contention that Uganda had violated the principle of the DRC's sovereignty over its natural resources. (33)
The Court also considered two counterclaims by Uganda: first, that since 1994 the DRC had supported or tolerated military operations and other destabilising activities carried out against Uganda by hostile armed groups based in the DRC; (34) and second, that Congolese armed forces had attacked the Ugandan Embassy in Kinshasa, and maltreated and confiscated property belonging to Uganda and Ugandan diplomats and nationals. The first counterclaim did not succeed because Uganda had failed to provide conclusive evidence of the DRC's support for anti-Ugandan rebel groups (35) and the Court could not conclude that the absence of action by the DRC was tantamount to tolerating their activities. (36) The Court upheld the second counterclaim. (37)
III SELF-DEFENCE, FAILED STATES AND NON-STATE ACTORS
The judgment's treatment of the legal arguments relating to self-defence was surprisingly cursory. (38) The Court rejected allegations that Uganda had been subject to intermittent attacks by Congo-based rebel forces being supplied and equipped by the DRC, (39) and that the attacks had been 'stepped up' immediately preceding the relevant period. (40) Uganda had not reported these escalated attacks to the Security Council, (41) nor had it ever claimed to have been subjected to an attack by the armed forces of the DRC. (42) There was no proof that the DRC was involved in any armed attacks that had been launched on Uganda from the DRC's territory. (43) The Court thus found that 'the legal and factual circumstances for the exercise of a right of self-defence by Uganda against the DRC were not present', (44) and since 'the preconditions for the exercise of self-defence' were also absent, the Court saw no need to consider 'whether and under what...
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