Global Policy Forum

By Mathew Ngugi Kihuithia *

Last week, the International Court of Justice, the UN's highest judicial body, delivered what may perhaps emerge as its most memorable ruling in recent times. Titled "Armed Activities in the Territory of Congo," the Monday ruling found Uganda liable of violating Congo's territorial integrity while in the course of a five-year spate of unlawful military intervention by Uganda on Congo's territory between 1998 and 2003. The judgment comes as a timely and laudable step toward righting some of the wrongs that have for decades bedeviled the turbulent great lakes region.

According to a UN report and evidence adduced to the court, the wrongful acts in question arose from what began as innocuous measures by both Uganda and Rwanda to secure their respective borders with Congo from the possibility of rebel activity spilling over from the then turbulent Zaire. This then culminated in the involvement of the two states lending their support to Congolose rebel forces that toppled former dictator Mobutu Sese Seko and brought Laurent Kabila to power.

The lure of the immense natural wealth in Congo – gold, diamonds and timber – then dissuaded Ugandan troops from departure, thus causing a continuation of warfare in parts of Congo as Ugandan commanders strengthened their foothold in the country to carry on rampant plunder of the resources. The ICJ found that Uganda had flagrantly violated the international law's notion of sovereign equality of states, which forms one of the purposes and principles of the UN.

Even more laudable is the court's move to redress the humanitarian wrongs that occurred in the course of the occupation of eastern Congo by Ugandan troops, for which Kampala must now make hefty financial reparations. The legal basis of the final award stems from the international law principle first laid down by the Permanent Court of International Justice (or PCIJ, the predecessor to the ICJ under the League of Nations Charter) in the landmark Chorzow factories case, that any breach of an international obligation results in the duty to make reparations.

Accordingly, Congo is set to exact a claim that may run into an estimated $10 billion, as indicated by Congo's Justice Minister Kisimba Ngoy in an interview with UN radio. The decision, though momentous by any standard, comes across as an irony for one main reason. It seeks to reaffirm the classic notion of state sovereignty as a fundamental construct of international relations at a time when another state – Iraq – is still smouldering in the aftermath of an invasion that led to hostile foreign occupation that continues to date. To the keen observer, several parallels must emerge between the situation in the Great Lakes and the continued occupation of Iraq by the Allied Forces. In both scenarios, the aggressors cited the need to protect national safety as the primary motive behind the questionable use of military force on the territory of another state.

In the case of Uganda (and Rwanda), it was to contain the activities of rebel movements that kept shifting base into Congolese territory, while in the case of the US (and the UK), it was in furtherance of the now much hyped "war on terror." In both instances, greed for natural resources in the occupied states has been widely alleged as the underlying motive beneath the guise of adopting questionable military measures to protect national safety.

The imposed institution of "regime change" in Iraq is arguably comparable to the violent overthrow of Mobutu's government at the hands of rebels who enjoyed Ugandan support. But most notably, the ensuing humanitarian crises and the spiraling of conflict resulted in death and immeasurable human suffering in both cases.

The question that immediately comes to mind then is, can we expect that a judicial condemnation of the invasion and occupation of Iraq í? including the attendant exploitation of its oil resources – will, in due time, issue against the aggressors behind the Iraqi invasion just as the ICJ exacted retribution against Uganda last Monday? A considered analysis of the question proves the possibility unlikely, exposing the International Court as an institution whose fabric and machinery are irreparably steeped in the same inequities that pervade the relations between states in the political, legal and economic spheres.

The chief limitation of the ICJ is that, as per article 36 of its statute, its jurisdiction cannot arise automatically in any given case. It has to be invoked, either by an organ of the UN – where a given arm of the world body requests the court for an advisory opinion over a given matter – or by the individual states locked in a dispute by way of mutual agreement. Either way, the role of political forces within the UN in pressuring the states or the body concerned to take up a matter at the ICJ cannot be gainsaid. Further, unlike in municipal courts, which have the benefit of state machinery to ensure compliance with their orders, the International Court lacks an institutionalised enforcement mechanism to guarantee that its judgments are effected.

Save for the diplomatic ostracisation that would befall a state that elects to ignore an unfavourable ruling issued by the court, nothing much can be done to enforce compliance of ICJ judgements. While the repercussions of such sanctions would be most punitive to a Third World state such as Uganda, the possibility poses no deterrent whatsoever to the powerful and politically influential Western states. The upshot of all this is that the administration of justice in inter-state relations remains highly selective in its course and effect, a fact underlined by the ruling in favour of Congo.

It is for these reasons especially that a successful claim comparable to the Armed Activities in the Territory of Congo, arising against the US, the UK and their allies in respect to the flagrant violation of state sovereignty and humanitarian law as witnessed in Afghanistan and Iraq is almost unforeseeable. Sadly, the proverbial sword of justice, as is wielded by the International Court, has been and will long remain blunt on one edge.

About the Author: Mathew Kihuithia Ngugi is a legal researcher at Kenya Law Reports.