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II. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda): Provisional Measures1

  • Malcolm D. Evans and Dino Kritsiotis (a1)

Extract

It might be thought an unusual or peculiar feature of international relations that, on occasion, States engaged in an armed conflict decide to appeal to international law and institutions for the provision of immediate judicial remedies.2 Yet, within the short space of 14 months, the International Court of Justice has twice found itself on the receiving end of such requests: in the first of these cases, the Federal Republic of Yugoslavia (FRY) filed an application on 29 April 1999 against 10 Member States of NATO for using armed force against the FRY in March 1999. At the same time, the FRY made a request for provisional measures, in which it asked the Court to indicate that the States involved “cease immediately [their] acts of use of force” and “refrain from any act of threat or use of force” against the FRY.3 In June 1999 the Court dismissed this request.4

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1. Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Order on Request for Indication of Provisional Measures: ICJ Press Communiqué 2000/24 (1 July 2000). The Order is reprinted in (2000) 39 I.L.M. 1100.

2. For a broader historical account, see Gray, , International Law and the Use of Force (2000), pp.1112.

3. ICJ Press Communiqué 99/17 (29 April 1999).

4. ICJ Press Communiqué 99/23 (2 June 1999). Reproduced in (1999) 38 I.L.M. 950. See Gray, , (2000) 49 I.C.L.Q. 730.

5. ICJ Press Communiqué 99/34 (23 June 1999). The Government of the DRC subsequently notified the Court of its intention to discontinue proceedings in the cases brought against Burundi and Rwanda and, following similar communications by both of these parties to the Court on 19 and 22 January 2001, respectively, the President of the Court made an Order on 30 January 2001, placing on record the discontinuance of the proceedings and ordering that these cases be removed from the Court's List: ICJ Press Communiqué 2001'2 (1 February 2001).

6. ICJ Press Communiqué 2000/18 (19 June 2000).

7. Ibid. The DRC asked the Court to indicate the following provisional measures against the Government of Uganda: (1) the immediate withdrawal of its armed forces from Kisangani; (2) the immediate cessation of all fighting or military activity on the territory of the DRC and the immediate and complete withdrawal from that territory; (3) the adoption of “all measures in its power” to desist from the commission or inciting the commission of war crimes; (4) the discontinuance of any act “having the aim or effect of disrupting, interfering with or hampering actions intended to give the population of the occupied zones the benefit of their fundamental human rights”; (5) the immediate cessation of “all illegal exploitation of the natural resources” of the DRC and (6) respecting the sovereignty of the DRC and its people.

8. CR Verbatim Records 2000/20 (26 June 2000) and 2000/24 (28 June 2000) (www.icj-cij.org/icjwww/idocket/ico/ icoframe.htm) and summarised by the Court in the Order, supra n.1, at paras 18–23.

9. (1984) ICJ Rep. 169.

10. (1993) ICJ Rep. 3 and 325.

11. U.S. Diplomatic and Consular Staff in Tehran Case (1979) ICJ Rep. 7.

12. Vienna Convention on Consular Relations: Paraguay v. United States of America (1998) ICJ Rep. 257 and LaGrand Case: Germany v. United States of America (1999) ICJ Rep. 4.

13. CR 2000/20: supra n.8.

14. Ibid.See, further, n.7.

15. U.N. Doc. S/RES/1304 (16 June 2000).

16. CR 2000/20: supra n.8 (“[I]n the case concerning United States Diplomatic and Consular Staff in Tehran, the Court indicated measures which in essence echoed the demands previously formulated by the Security Council in a resolution adopted a few days earlier (Order of 15 December 1979, ICJ Reports 1979; and Security Council resolution 457 (1979) of 4 December 1979). The Democratic Republic of the Congo asks nothing other of the Court today”).

17. CR Verbatim Record 2000/23 (28 June 2000) (www.icj-cij.org/icjwww/idocket/ico/ icoframe.htm) and summarised by the Court in its Order, supra n.1, at paras. 24–31 (“This is how Uganda security forces found themselves on the soil of the [DRC]: not by invasion but by invitation”).

18. Formalised in a written agreement of 27 April 1998.

19. CR 2000/23: supra n.17.

20. Agreement for A Cease-Fire in the Democratic Republic of Congo, , reprinted in (1999) 11 African J.I.C.L. 529. See Raath, , “Congo's Peace Accord Faces Diplomatic Test” The Times (London), 9 July 1999, p.18.

21. CR 2000/23: supra n.17.

22. Ibid. (preceded by regional negotiations which Uganda called “thorough” and “painstaking”).

23. Ibid. (where, Uganda stated, the Court treated the matter “as pre-preliminary in character and wholly antecedent” and that, in the instant case, “the subject-matter of the request for interim measures is essentially the same as the matters addressed by…Security Council resolution [1304] of 16 June [2000]”). There, the Court had concluded that the measures requested by Libya “would be likely to impair the rights which appear to be enjoyed by the United Kingdom by virtue of Security Council Resolution 748 (1992)”: (1992) ICJ Rep. 3,15. Reference was also made to “an analogous decision” (i.e. in respect of Chapter VI of the Charter) in the Aegean Sea Case (1978) ICJ Rep. 3.

24. Ibid. Uganda argued that the requesting State had not “begun to satisfy the burden of proof and the procedural responsibilities which a requesting state must have”, and that its request consisted of “a single force field of omissions, anomalies and legal eccentricities”. Uganda maintained that there could not have been an “element of urgency” since the DRC had “waited for almost a year before making a complaint”: id. In response to this particular claim, the DRC contended that “at all events, the fact that a request may not have been submitted cannot support a claim of lack of urgency”. It referred to “the three attacks of Kisangani, one of them just weeks ago, [which] have once again demonstrated the dangers of irreparable risks to which its inhabitants are exposed as a result of the continuing presence of foreign armies on Congolese territory”. CR 2000/24: supra n.8.

25. Case Concerning Application of the Genocide Convention (1993) ICJ Rep. 3. See also, Harris, , Cases and Materials on International Law (5th ed., 1998), 1034 and Shaw, , International Law (4th ed., 1997), 765.

26. Order, supra n.1, at para. 33.

27. Ibid., at para. 34. Cf. the response to the request for provisional measures made by the FRY, which failed because the Court held that (as against Spain and the United States of America) it manifestly lacked jurisdiction and (as against Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal and the United Kingdom) it lacked prima facie jurisdiction: see nn.4 and 46.

28. Ibid., at para. 36. See, however, the Declaration of Judge Oda that the case “is—and has from the outset been—inadmissible” because the DRC “did not, in its Application, show us that both Parties had attempted to identify the legal disputes existing between them and to resolve those disputes by negotiation”. Judge Oda found that, notwithstanding this observation, he “could not but agree” on the measures indicated by the Court: (2000) 39 I.L.M. 1100, 1113.

29. Nicaragua Case (Jurisdiction and Admissibility) (1984) ICJ Rep. 392, 434–35 (para. 95) and Genocide Case (Provisional Measures) (1993) ICJ Rep. 3, 19 (para. 19).

30. Supra n.16.

31. Order, supra n.1, at para. 36.

32. For a useful exposition, see Oda, “Provisional Measures: The Practice of the International Court of Justice” in Lowe and Fitmaurice (eds), Fifty Years of the International Court of Justice (1995), 541 at 551–554 (identified as the preservation of rights exposed to imminent breach which is irreparable and the prevention of aggravation and extension of disputes, although “in recent cases, the actual matters to be considered during the merits phase have been made the object of the requested provisional measures”).

33. Order, supra n.1, at para. 39.

34. Ibid. Cf. Great Belt Case (1991) ICJ Rep. 12, 17.

35. (2000) 39 I.L.M. 1100, 1115 (which meant that the legal criteria for granting the Order “were, accordingly, all satisfied”).

36. Order, supra n.1, at para. 41.

37. Ibid., at para. 42. The Court made reference to an earlier statement (para. 40) that the rights which were the “subject of the dispute”—which were those of the DRC relating to sovereignty, territorial integrity, the integrity of its assets and natural recourses, and its rights to respect for the rules of international humanitarian law and for the instruments relating to the protection of human rights—were those upon which the Court “must focus its attentions in its consideration of this request for the indication of provisional measures”.

38. Ibid., at para. 47(1)-(3).

39. See Harris, supra n.25 and Gray, , Judicial Remedies in International Law (1987), 70 . Cf. 1982 Law of the Sea Convention, Art. 290.

40. (1996) ICJ Rep. 226, 329.

41. Supra n.7.

42. Supra n.28.

43. It is not uncommon for the Court to address the same provisional measures to both parties: Case Concerning the Land and Maritime Boundary Between Cameroon and Nigeria (1996) ICJ Rep. 13 and Merrills, , International Dispute Settlement (3rd ed., 1998), 129. Cf. the provisional measures indicated in the Tehran Hostages Case and the Nicaragua Case (1984) or, indeed, the Genocide Case (1993), where the Court provided that the respondent State should “take all measures within its power to prevent the commission of the crime of genocide”. To be sure, the Court went on to indicate that the governments of the FRY and Bosnia and Herzegovina “should not take any action and should ensure that no action is taken which may aggravate or extend the existing dispute over the prevention and punishment of the crime of genocide, or render it more difficult of solution”.

44. Infra n.50.

45. Order, supra n.1, at para. 46.

46. Supra n.4 (at para. 18). See Dyer, and Bates, , “World Court ‘Concerned’ At Bombing” The Guardian (London), 3 June 1999, p.4.

47. Security Council Resolution 1304 (2000), supra n.15, operative paras 1 and 3.

48. Supra nn.7 and 8. In the oral proceedings, Uganda argued that the DRC request—that the Court order “the immediate and unilateral withdrawal of Ugandan forces from the [DRC]”—is “in direct conflict with Security Council Resolution 1304” and that the measures requested by the DRC “would breach, perhaps irreparably, the system of public order established by the Lusaka Agreement”. Uganda emphasised that the fourth operative paragraph of Resolution 1304 (2000) demanded the withdrawal of all Ugandan and Rwandan forces from the territory “without further delay, in conformity with the timetable of the Ceasefire Agreement and 8 April 2000 Kampala disengagement plan” and that the meaning of this paragraph is “different” if “the operative language is not edited to suit the interests of either Party to these proceedings”: CR 2000/23, supra n.17.

49. As it did in the Genocide Case (1993): supra nn.10 and 43 (especially since Uganda claimed that “[w]ith respect to the events in Kisangani, Uganda has fully complied with the United Nations resolutions in the matter and completely withdrawn its troops from the city. I wish to confirm that Ugandan troops are now at a place called Banalia which is 120 km from Kisangani and that the United Nations Observer Mission in the Congo has taken charge of the city's security”: supra n.17). See, further, Smith, Duval, “Uganda To Pull Out of Congo Peace Plan”, The Independent (London), 30 04 2001.

50. For discussion of the relationship between “determinacy” and behavioural patterns of compliance and “legitimacy”, see Franck, , The Power of Legitimacy Among Nations (1990), 5066. Formulations of provisional measures such as those indicated in the present Order could be advanced as a partial explanation of why the overall record of compliance with provisional measures has been described as “not encouraging”: Shaw, supra n.25, at 766.

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