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Re Joinder Submitted by the Republic of Uganda

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INTERNATIONAL COURT OF JUSTICE CASE CONCERNING ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO DEMOCRATIC REPUBLIC OF THE CONGO v. UGANDA REJOINDER SUBMITTED BY THE REPUBLIC OF UGANDA VOLUME 1 6 DECEMBER 2002 TABLE OF CONTENTS Page INTRODUCTION .................................................................... 1 CHAPTER 1 : THE PERSISTENT ANOMALIES IN THE REPLY CONCERNING MATTERS OF PROCEDURE AND EVIDENCE ............................................... 10 A. The Continuing Confusion Relating To Liability (Merits) And Quantum (Compensation) ...................... 10 B. Uganda Reaffirms Her Position That The Court Lacks Coinpetence To Deal With The Events In Kisangani In June 2000 ................................................ 1 1 C. The Courl:'~Finding On The Third Counter-Claim ..... 13 D. The Alleged Admissions By Uganda ........................... 15 E. The Appropriate Standard Of Proof ............................. 15 CHAPTER II: REAFFIRMATION OF UGANDA'S NECESSITY TO ACT IN SELF- DEFENCE ................................................. 2 1 A. The DRC's Admissions Regarding The Threat To Uganda's Security Posed By The ADF ........................ 27 B. The DRC's Admissions Regarding The Threat To Uganda's Security Posed By Sudan ............................. 35 C. The DRC's Admissions Regarding Her Consent To The Presetnce Of Ugandan Troops In Congolese Territory To Address The Threats To Uganda's Security.. ......................................................................4 1 D. The DRC's Failure To Establish That Uganda Intervened Militarily In The DRC Prior To Mid- September 1998 ............................................................49 (1) Uganda had no role whatsoever in the rebellion of Congolese Army units on 2 August 1998 or the failed coup d'état of the same date ..........................................................50 (2) Uganda did not participate in the attack on Kitona military base .........................................54 (a) The journalistic "evidence" cited in the Reply ..............................................55 (b) The "first-hand" accounts ....................56 (c) The alleged "Ugandan" tank ...............62 (3) Uganda did not participate in the attack on Kindu ................................................................64 (4) Uganda did not send troops into the DRC in August 1998 .....................................................66 (5) Uganda did not participate in the formation of the RCD .......................................................68 E. The DRC's Failure To Establish A Motive For Uganda's Military Presence In The DRC Other Than Self-Defence ........................................................7 1 F. The DRC's Failure To Demonstrate The Impropriety Of Uganda's Limited Relationships With Congolese Rebel Organisations........................... 80 (1) Limitations as to time .......................................8 1 (2) Limitations as to purpose .................................85 (3) The status of the Congolese rebel organisations under the Lusaka Agreement ..... 89 G . The Effects Of The Lusaka Agreement On The DRC' s Claims Against Uganda ..................................91 (1) Uganda's responses to the DRC's arguments .. 92 (2) Recent developments in fulfillment of the Lusaka peace process .....................................100 CHAPTER III: REAFFIRMATION OF THE LEGAL ARGUMENTS ......................... 104 A . The Assertion Of The DRC That There Was No Aggressioa On The Facts For Which She Was Responsible ................................................................ 104 (1) May 1997-April 1998 .................................... 112 (2) May 1998-July 1998 ...................................... 112 (4) October 1998-June 2000 ................................ 114 B . The Conditions Necessary For The Legal Justification Of Self-Defence ..................................... 115 (1) The definition of armed attack ....................... 116 (2) The question of proportionality ...................... 119 (a) The officia1 justification put forward by the Ugandan authorities ................ 120 (b) The alleged absence of protest. notice or prior ultimatum ................... 123 (c) The alleged extent of Uganda's "occupation" ...................................... 124 (d) The alleged duration of Uganda's "occupation" ...................................... 125 (e) The modalities of Uganda's military action .................................................125 (f) The relevance of the Security Council Resolutions .......................... 126 C. The Issue Of The Consent Of The DRC ....................127 (1) The assertion that Uganda cannot invoke the rules which govern the responsibility of States ..............................................................127 (2) The Protocol of 27 April 1998 ....................... 127 (3) The question whether there was an invitation 128 (4) The assertion that the DRC has not given its informa1 consent .............................................128 (5) The significance of the Lusaka Agreement .... 129 CHAPTER IV: RESPONSE TO THE ALLEGATIONS OF ILLEGAL EXPLOITATION OF NATURAL RESOURCES .........................................136 A. The United Nations Panel Reports Were Designed To Provide A Foundation For A Political Solution, Not To Establish Culpability...................................... 140 B. The United Nations Panel Reports, And Particularly The First Report On Which The DRC's Case Rests, Have Been Universally Discredited ........................... 143 (1) The DRC herself admits that the UN Panel Reports are not credible................................ 143 (2) The inadequacy of the First UN Panel Report was admitted in a subsequent UN Panel Report ...................................................147 (3) A host of nations have criticised the UN Panel Reports.................................................. 148 (a) The First UN Panel Report ................ 148 (b) The Second UN Panel Report ........... 15 1 (c) The Third UN Panel Report .............. 155 (4) The UN Panel Reports do not meet the UN'S own standards ................................................. 165 C. The Inherent Defects Of The United Nations Panel Reports Undermine The Allegations Against Uganda.. .....................................................................168 (1) The allegations against Uganda are not supported by credible evidence ...................... 168 (2) The UN Panels have refused to provide supporting evidence to Uganda ...................... 170 (3) The UN Panels failed to interview key witnesses and to review critical documents ... 17 1 (4) The DARA-Forest "Case Study" exemplifies the lack of credibility of the First UN Panel Report .................................... 173 (5) Allegations about the "Victoria Group" and "Trinity Company" are contradicted by public information .......................................... 178 D. The Nature Of Uganda's Intervention In The Congo Was Inconsistent With Exploitation, As The United Nations Has Implicitly Recognised ............................ 18 1 (1) The limited nature of Uganda's intervention is inconsistent with exploitation ..................... 18 1 (2) The UN and DRC positions are inconsistent with exploitation by Uganda .......................... 183 (3) The DRC's other sources support Uganda's position ...........................................................184 E. The First United Nations Panel Report, On Which The DRC's Case Rests, Inaccurately Construes The Context Of Uganda' s Intervention In The Congo ...... 185 (1) Ugandan forces did not fight in the so-called First Congo War in 1996-97........................... 185 (2) Uganda did not finance the war through exploitation of the DRC ................................. 189 (a) The UN Panel overestimated the cost of the war .....................................189 (b) The war was funded from Uganda's defence budget ...................................192 (3) Uganda did not collect taxes from the transit and re-export of "exploited" resources ........... 194 F. Trade Between Uganda And Eastern Congo 1s Benign And Legitimate ..............................................197 (1) Trade between eastern Congo and Uganda has occurred since time immemorial and cannot be described as "illegal exploitation". 198 (2) The trade which the DRC attacks was essential to the survival of the population of eastern Congo .................................................205 (3) Trade in eastern Congo was licenced by the DRC Government and by the competent authorities .......................................................2 13 G. The Specific Allegations Against Uganda Are Contradicted By Sworn Testimony And Documentary Evidence ........................................2 16 (1) So-called instances of "unlawful appropriations" by "Ugandan troops" are demonstrably false ...................................... 2 17 (2) The DRC persistently relies on unsupported hearsay and inaccurately cites her supporting sources.. .......................................2 19 (3) The DRC's allegations about air flights are either unsupported or are demonstrably wrong ..............................................................223 (4) The "economic data" on which the DRC relies proves nothing ......................................224 (5) Allegations of Uganda's purported "control" of business in eastern Congo prove nothing, other than the fact that Uganda did not 66loot 7' that area ................................................ 229 (6) Allegations
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