What Congo ruling means for Uganda

Dec 21, 2005

THE ruling on Monday by the United Nation’s International Court of Justice (ICJ) will have far-reaching effects on Uganda’s and regional politics. The ruling is final and cannot be appealed, but the court can step in if state parties have not agreed on the reparations.

By Emmy Allio

THE ruling on Monday by the United Nation’s International Court of Justice (ICJ) will have far-reaching effects on Uganda’s and regional politics. The ruling is final and cannot be appealed, but the court can step in if state parties have not agreed on the reparations.

Congo demands reparations amounting to $6-10 billion. At the same time, Uganda will ask for reparations for damage on its embassy building, property and torture of its diplomatic staff in Kinshasa in 1998.
On June 23, 1999, the Democratic Republic of Congo (DRC) filed in the registry of ICJ at The Hague, Netherlands, an application instituting proceedings (separately) against Uganda, Rwanda and Burundi for “acts of armed aggression perpetrated in fragrant violation of the United Nations Charter and of the Charter of the Organisation of African Unity (OAU).”
However, the case against Rwanda and Burundi could not progress because both countries have not accepted the ICJ’s jurisdiction and so cannot appear in The Hague.

The DRC, therefore, invoked as basis for the court’s jurisdiction the declarations whereby both states (DRC and Uganda) have accepted the compulsory jurisdiction of the court in relation to any other state, accepting the obligation as stipulated in Paragraph Two, Article 36 of ICJ. At first, Uganda argued that it was being victimised after DRC withdrew its case against Burundi and Rwanda in February 2003.

Effect on the Judiciary and International Law

The effect of this ruling is far-reaching on the judiciary and international law. It means that bullies, however strong, can be subject to the law.

From its preliminary ruling, the reading was on the wall for Uganda to start preparing to pay reparations to Congo. In that ruling in 2000, ICJ ordered for “immediate and unconditional withdrawal from the Congolese territory of Uganda’s natural and legal persons. The DRC is entitled to compensation from Uganda in respect of all acts of looting, destruction, removal of property and persons and other unlawful acts that attribute to Uganda.”

The Monday ruling is the boldest since the 1984 case concerning military and paramilitary activities in and around Nicaragua. In the Nicaragua case, the court ruled against the USA, whose justification for invading Nicaragua was self-defence. In these two cases, Uganda and USA argued that the disputes should have been resolved not by ICJ but by a regional forum.

Uganda’s Attorney General Khiddu Makubuya argued in the ICJ that Uganda and DRC had stood by the Lusaka Agreement (1999), endorsed by the UN Security Council. However, the DRC had submitted that the agreement could not adequately address the issues that constituted the rules prohibiting use of force, aggression and occupation.

The Ituri factor and the presence of Ugandan rebels in Congo
For the Kinshasa authorities and the UN, there should be little time to celebrate over the ruling because Uganda and Rwanda may re-invade Congo if the initial reasons that catapulted them to send troops to Congo are not addressed. International law may be ridiculed if the UN does not use its military presence in Congo to prevent the country from being used as a haven for rebels fighting its neighbours.

MONUC boss William Swing recently admitted that about 2,000 Ugandan rebels are still in Congo. There are also about 8,000-10,000 Rwandan rebels and 1,000 Burundian Hutu rebels in eastern Congo. These rebels continue to kill Congolese people.

Another touchy issue is the Ituri factor in Congo-Uganda relations. Most of the ICJ ruling was based on Uganda’s relations with militia groups in Ituri, which remains the hottest point. Militia groups have often said their sources of arms were the Kinshasa, Kigali and Kampala governments, which has been confirmed by reports by Amnesty International and Human Rights Watch.

Uganda was also charged with training child soldiers and fomenting ethnic tension in Congo. True, Uganda helped to train armies recruited by Congolese themselves, which include Jean Pierre Bemba’s Congolese Liberation Movement, Mbusa Nyamwisi’s RCD-K-ML and Roger Lumbala’s RCD-Nationale. But these former rebel armies are now part of the Congolese national army, which is under MONUC’s guardianship.

Militarism and the culture of impunity
In the judgement, ICJ President Shi Jiuyong said, “By the conduct of its armed forces, which committed acts of killing, torture and other forms of inhumane treatment of the Congolese civilian population ..., (Uganda) violated its obligations under international human rights law.”

The activities of Ugandan soldiers and senior officers were highlighted in reports of the two UN Panel of Experts, Justice David Porter Commission of Inquiry and various international human rights groups.

Evidence used by Congo in the case hinged heavily on those reports. Under international law, Uganda is held liable for the activities of its soldiers (servants) in Congo. This liability is not removed by the fact that President Yoweri Museveni is on record for having warned the soldiers against engaging in acts like looting or torturing civilians.

The ICJ ruling brings into mind evidence presented to the Justice Porter Commission about activities of army officers who connived with Congolese rebel officials to control entire mine fields or trading ventures in Congo.

The commission recommended that these officers be investigated and punished. They included Maj. Gen. James Kazini, Lt. Col. Noble Mayombo (now a brigadier), Lt. Col. Fencas Mugyenyi (now colonel), Major Sonko (now a Lt. Col.), Major Kagezi and Lt. Okumu.

The Porter Commission found out that UPDF soldiers were levying taxes on the Congolese for security purposes. The Commission said Kazini, as head of the UPDF mission in Congo, had ashamed Uganda and disciplinary action should be taken against him by the relevant authorities.” Kazini’s instructions to his commanders were not to keep any payments for security funding given to them, “but to send such payments to him at TAC HQ”.

The commission said some officers had conspired to see that flights illegal by Uganda law and International conventions were falsely recorded as the flights of state aircraft, which they were not, thereby endangering Uganda’s participation in the International Air Transport.

The commission also recommended that Gen. Salim Saleh be investigated for appropriate action for purporting to dispose of control of Air Alexander International Ltd, while retaining the control.

The Hague ruling now puts pressure on the Uganda government to implement recommendations of the Justice Porter Commission report that exposed the activities of these senior army officers. The Porter report has been shelved for unknown reasons.

The effect on Kinshasa Government and political timing
In Kinshasa, the pro-President Joseph Kabila’s camp is jubilant, while the Uganda-backed RCD-Nationale says the ruling is based on wrong conceptions and that Uganda did not loot Congo.
Meanwhile, the ruling is ill-timed for President Museveni because his opponents will capitalise on it.

For Kabila, it is manna from heaven as his campaign for the June 2006 elections kicks off.
The reality is that unless the long arm of the law also catches Rwanda and Ugandan rebels are kicked out of Congo, the situation may grow gloomier.

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