At the end of 2024, Volterra Fietta lawyers Robert Volterra and Florentine Vos published an article on the reparations judgment of the International Court of Justice (the “ICJ”) in the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) case (the “Armed Activities case”). The article is titled “How (not) to Compensate for State Responsibility in Armed Conflict: The DRC v Uganda Reparations Judgment and the International Law of Reparations”. It is published in the Global Community Yearbook of International Law and Jurisprudence by Oxford University Press and can be accessed here.
The article’s conclusion is that the ICJ awarded an unjustifiably low amount of compensation in this case. The article also offers a critique of the Court’s conceptual approach to the determination of damages. Volterra Fietta was counsel to the Democratic Republic of the Congo (the “DRC”) for the quantum phase of the case but the views expressed in the article are those of the authors.
A tale of two judgments
On 9 February 2022, the ICJ handed down the much-anticipated reparations judgment in the Armed Activities case.
It followed the ICJ’s 2005 liability judgment in the same case. In the liability judgment, the ICJ held that Uganda was liable for significant breaches of public international law for acts committed against the DRC during the Great African War between 1998 and 2003.
In its 2005 liability judgment, the ICJ held that Uganda was obliged to make reparations to the DRC. However, at the request of the parties, the Court left the determination of such reparations to be negotiated between the DRC and Uganda. After those negotiations failed, in 2015, the DRC requested the ICJ to reopen the case and determine the amount of reparations owed.
In the subsequent 2022 reparations judgment, the ICJ ordered Uganda to pay the DRC a total of USD 325 million in compensation. This sum comprises the following three subtotals: (i) USD 225 million for damage to persons, including loss of life, injury, rape, and displacement of populations; (ii) USD 40 million for damage to property; and (iii) USD 60 million for damage related to natural resources.
The Court did not award damages for several of the DRC’s claims, including for macroeconomic damage which was the DRC’s biggest claim. Neither did it order any pre-judgment interest payments or payment of the DRC’s costs. The Court offered Uganda a payment plan, with yearly instalments of USD 65 million and a delayed start of around six months after the judgment.
A low penalty under public international law for invading a neighbour
The article examines the quantum of damages awarded by the ICJ as reparation for Uganda invading, occupying and pillaging its neighbour – in an extremely violent manner – over a period of half a decade or so. It compares the ICJ’s determinations as to reparations in the Armed Activities case with its previous practice, as well as with that of other international courts and tribunals. It also compares the reasoning of the ICJ in this case against relevant public international law principles.
The article is unable to identify in the judgment any explanation for the significantly lower damages amount awarded to the DRC in this case, when compared to awards by other international courts and tribunals adjudicating claims about violations of the public international law of State responsibility. In addition, the article calculates the discount given to Uganda by the Court’s decision not to award (pre-judgment) interest or costs and by deferring payment through a five-year payment plan.
The ICJ’s message to future victims of invasion: keep good records whilst you are being invaded and occupied, if you want to be compensated
The article concludes that, despite formally adopting the correctly flexible standard of proof and a non-exacting method to assess war damages, at the critical stage of assessing the DRC’s claim, the ICJ did not allow for imperfect evidence or for the use of estimates, inferences and other less exacting evidentiary methodologies. Unlike other international courts and tribunals (for example investment treaty arbitration tribunals that also determine compensation for violations of State Responsibility), the Court did not appear to factor in the obvious link between an imperfect evidentiary record and the conduct of the offending party. Instead, the Court was critical of the quality of the quantum-related evidence presented to it, searching for precise figures derived from high-quality evidence.
Such an abstract and theoretical approach to evaluating evidence ignored the realities of war and military occupation. It also rewarded the party whose misconduct was the cause itself of the imperfect evidentiary record.
“Global sums” approach = calculating damages is hard work
The Court adopted what it called a “global sums approach”. It awarded compensation “as part of a global sum for all damage” for three broad categories: damages to persons; property; and natural resources. Unfortunately, this “global sums approach” is not a coherent quantum methodology for calculating damages. The judgment does not satisfactorily explain on what legal basis the Court relied, when it decided to use this theory. The Court’s approach to war reparations quantum has been widely criticised as ‘not fit for purpose’.
Missed opportunity
The ICJ failed to seize its chance to refine the international law of reparations. It did not advance a methodology for calculating (war) damages. Nor did it provide clarity on the standard of evidence to support such claims. Such directions would have benefitted parties and tribunals addressing issues of international law compensation for acts of armed conflict.
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