In a landmark recent judgment, the International Court of Justice (the “ICJ” or the “Court”) ordered the Republic of Uganda (“Uganda”) to pay US$ 325 million in compensation to the Democratic Republic of the Congo (the “DRC”). The dispute arose out of Uganda’s military invasion of the DRC between 1998 and 2003. The ICJ’s judgment follows its prior 2005 ruling, which had held Uganda responsible for the unlawful use of force, widespread human rights violations, and the exploitation and plundering of the DRC’s natural resources.
In its 2005 judgment, the ICJ ruled that, failing agreement between the parties, the Court would settle the question of reparations. After the parties failed to reach agreement, the ICJ decided to resume proceedings in 2015. The Court proceeded to appoint a panel of experts in respect of three heads of damage claimed by the DRC: (i) loss of human life, (ii) loss of natural resources, and (iii) property damage.
When determining the principles and rules for assessing reparations, the ICJ distinguished events occurring in the DRC district of Ituri (which Uganda had occupied) from those in other areas of the DRC (where specific conduct had been found internationally attributable to Uganda). The Court affirmed that, as a general rule, there must be a causal nexus between an internationally wrongful act and the injury suffered. Nonetheless, because the case involved a “long-standing and large-scale armed conflict”, the ICJ found that the required causal nexus “may be readily established”. Moreover, damage from potential “concurrent causes” could provide no exemption from the obligation to make reparation.
The Court noted that it may, “on an exceptional basis”, award compensation in the form of a “global sum”. This approach accorded with judicial practice “in cases involving a large group of victims who have suffered serious injury in situations of armed conflict”, and pursuant to which the awarded level of compensation took into account “uncertainties that flow from applying a lower standard of proof”. For the Court, the evidence here left “no doubt” that Uganda’s internationally wrongful acts had caused “a substantiated injury” to the DRC, even though that injury could not be evaluated precisely in terms of extent or scale.
In departing from the general rule on burden of proof, the ICJ found that certain circumstances here warranted a flexible test. In particular, Uganda had to “establish that a particular injury suffered by the DRC in Ituri was not caused by its [Uganda’s] failure to meet its obligations as an occupying Power”. On the other hand, the DRC bore the burden as regards damage outside Ituri. The ICJ also noted that the standard of proof may “vary from case to case” and “on the gravity of the acts alleged”. Citing Corfu Channel (United Kingdom v. Albania), the Court recognised that a State’s inability to provide direct proof of certain facts (as here) warranted “a more liberal recourse to inferences of fact and circumstantial evidence”. When referring to the practice of the Ethiopia-Eritrea Claims Commission and the International Criminal Court, the ICJ specified that “less rigorous proof” may be acceptable for the quantification of damage, in particular.
Because the evidence provided by the DRC was “for the most part, insufficient to reach a precise determination of the amount of compensation due”, the ICJ took into account other evidence, including reports of the Court-appointed experts and United Nations investigative reports. After examining each claim, the Court ordered Uganda to pay the following amounts:
- US$ 225 million for damage to persons (including loss of life, serious bodily injury, sexual violence, recruitment and deployment of child soldiers, and population displacement);
- US$ 40 million for damage to property (located inside and outside Ituri); and
- US$ 60 million for damage related to natural resources (including gold, diamonds, coltan, coffee, timber and fauna).
The Court ruled 12 votes to two on the first two heads of damage, and unanimously on the third.
The Court rejected the DRC’s claim for environmental damages resulting from deforestation, due to “insufficient evidence to determine the extent of the DRC’s injury, even on an approximate basis”. The DRC’s claim for macroeconomic damage was also dismissed, owing to the lack of causal nexus between Uganda’s conduct and the damage suffered. Finally, the Court rejected the DRC’s request for “satisfaction”, on the grounds that “non-material” damage was already included in the compensation award.
Pursuant to the ICJ’s judgment, Uganda must pay the DRC in five annual instalments of US$ 65 million each, starting on 1 September 2022. Post-judgment interest will accrue at a rate of 6% on any overdue amount. The Court ordered each party to pay its own costs, in accordance with the general rule under Article 64 of the ICJ Statute.
The ICJ’s recent judgment is available here
The ICJ’s 2005 judgment is available here.