The International Court of Justice’s 2022 Reparations Judgment in DRC v. Uganda: ‘Global Sums’ as the New Device for Human Rights-Based Inter-State Disputes

On 9 February 2022, the International Court of Justice issued its much-awaited Reparations Judgment in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) [hereafter, “2022 Reparations Judgment”], awarding the Democratic Republic of the Congo (DRC) the global sum of US$330 Million as total compensation for damage caused by Uganda’s violations of international human rights law, international humanitarian law, and international law as declared in the Court’s 19 December 2005 Judgment on the Merits. The global sum that the ICJ awarded was just around 3% of the amount claimed by DRC against Uganda.

To recall, the DRC had requested the Court in May 2015 to reopen proceedings to determine the question of reparations, due to the failure of Court-ordered negotiations with Uganda. [2022 Reparations Judgment, para. 11].  For the damage resulting from the violations of international law found by the Court in 19 December 2005 Judgment on the Merits, the DRC claimed compensation from Uganda in a total amount over eleven billion US dollars (US$ 11,347,958,354), broken down into compensation claims for personal injury (US$4,350,421,800), damage to property (US$239,971,970), damage to natural resources (US$1,043,563,809), and macroeconomic damage (US$5,714,000,775).  The DRC also sought compensatory interest (4% rate payable from the date of filing of the Memorial on reparation) for heads of claim other than those for which the Court would award compensation, the sum of US$25 million to create a fund that would promote reconciliation between the Hema and Lendu in Ituri, and the sum of US$100 million for non-material harm suffered by the DRC.  The DRC further prayed that Uganda give satisfaction by conducting criminal investigations and prosecutions of the individuals involved in international law violations committed in Congolese territory between 1998 and 2003 for which Uganda has been found responsible. In the event Uganda were not to pay any amount awarded by the Court, the DRC asked for moratory interest at 6%.  The DRC also asked for reimbursement for all costs incurred in the litigation. [2022 Reparations Judgment, p. 21].  The DRC named the sum of US$982,797.73 as sufficient reparation on Uganda’s counter-claim for the injury resulting from the invasion, seizure and long-term occupation of Uganda’s Chancery compound in Kinshasa, which amount should be offset from the reparation owed to the DRC. [2022 Reparations Judgment, p. 22]. In response, Uganda argued that the DRC is only entitled to reparation in the form of compensation only upon proof of exact injury suffered resulting from specific actions of Uganda, and that the finding of Uganda’s international 2005 Judgment on the Merits itself already constituted an appropriate form of satisfaction. [2022 Reparations Judgment, pp. 22-23].

In this post, I summarize the Court’s new methodology, and outline its particular consequences for human rights claims that are espoused into inter-State disputes. The 2022 Reparations Judgment is doctrinally significant, in that the Court elaborated its own methodology for determining compensatory reparations for mass violations of human rights and humanitarian law, where so much time had already passed, and the needed evidentiary fact-finding in the reparations phase was unfortunately not joined to the judgment on the merits. While this bifurcation of the merits and the reparations judgments could be reasonably managed in a case involving an individual, as the Court did in Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of Congo) where the Court issued its Judgment on Compensation less than two years from its Judgment on the Merits, the unexpected gap of 17 years in DRC v. Uganda has evidentiary fact-finding consequences for estimating and determining appropriate and responsive reparations for the mass human rights and humanitarian law violations that the Court determined back in 2005.

Unlike the Inter-American Court of Human Rights that created its Supervision Unit in 2015, the International Court of Justice does not have a counterpart supervisory unit to monitor compliance by States with reparative judgments.  The DRC v. Uganda case might well provide the tipping point to revisit the implications of that lingering institutional gap in the International Court of Justice’s architecture.

Court’s Emphasis on Reparations primarily through Negotiations: Full Reparation as the Standard

At the outset, the Court regretted the failure of negotiations between DRC and Uganda, noting that it was “mindful of the fact that evidentiary difficulties arise, to a certain extent, in most situations of international armed conflict.  However, questions of reparation are often resolved through negotiations between the parties concerned.” [2022 Reparations Judgment, para. 67]. The Court maintained the Chorzow Factory standard of full reparation for injury caused by internationally wrongful acts [2022 Reparations Judgment, paras. 69, 100], and declared the customary international law status of Article 31 of the International Law Commission’s Articles on State Responsibility [cf. paras. 70, 101].  Applying both standards, the Court set out a three-part sequence to its reparations evaluation:  (1) distinguishing between different situations during the conflict in Ituri and other areas of DRC; (2) analysing the required causal nexus between Uganda’s internationally wrongful acts and the injury suffered by the DRC; and (3) examining the nature, form, and amount of reparation. [cf., para. 72].  Reparation cannot have a punitive character. [cf. para. 102].

The Court differentiated between Uganda’s legal obligations as an occupying power in Ituri (which triggered a legal duty of vigilance to prevent human rights and humanitarian law violations in the occupied territory as well as to prevent plunder and exploitation of the occupied territory’s natural resources, even by third parties to the conflict such as rebel groups), and damage outside Ituri (where Uganda had no such legal duty to third parties, but where Ugandan support for rebel groups as the cause of damage had to be proven on a case-by-case basis). [2022 Judgment on Reparations, paras. 80-84].  Thus, for all damage resulting from the conflict in Ituri where Uganda was the Occupying Power, Uganda had a sufficiently direct causal nexus to make reparation for all damage even for conduct of third parties, unless such injury was not caused by Uganda’s failure to fulfil its obligations as the Occupying Power. [2022 Reparations Judgment, para. 95].  The Court would go on to make individual assessments on a case-to-case basis for injury suffered in situations outside of Ugandan occupation in Ituri.

Reparation Wiping Out All Consequences of the Internationally Wrongful Act: Emphasis on Equity and Relative Burdens of Proof

The Court affirmed the Chorzow Factory standard’s elementary requirement that full reparation should wipe out all consequences of the internationally wrongful act [2022 Reparations Judgment, para. 106], and even where there is uncertainty as to the exact extent of damage caused, the Court may, “on an exceptional basis, award compensation in the form of a global sum, within the range of possibilities indicated by the evidence and taking into account equitable considerations.  Such an approach may be called for where the evidence leaves no doubt that an internationally wrongful act has caused a substantiated injury, but does not allow a precise evaluation of the extent or scale of such injury.” [cf., para. 106].  The Court then looked to the practices of other tribunals, specifically mentioning the Ethiopia-Eritrea Claims Commission, which have issued such global sums for cases of large group victims in situations of armed conflict. [cf. para. 107].

The Court also distinguished between burdens of proof.  For all reparations claims involving Ugandan occupation of Ituri, Uganda had the burden to prove that any injury suffered by the DRC was not caused by its failure to discharge the legal duties of an Occupying Power.  For claims outside of Uganda’s role as Occupying Power in Ituri, the DRC assumed the burden of proof. [cf. paras. 118-119].  The Court would again refer to the Ethiopia-Eritrea Claims Commission’s practices in evidentiary fact-finding and evidentiary standards when it came to reparation for mass violations in the context of armed conflict, without explaining its main comparative reference to that Commission and not any other tribunal or court that has deal with reparations for mass atrocities [cf. paras. 120-124].  (It did make some slight reference to documentary evidence practices at the International Criminal Court when it came to death certificates and hospital records, cf. para. 158). Ultimately, the Court simply declared, without explanation that “given that a large amount of evidence has been destroyed or rendered inaccessible over the years since the armed conflict…the standard of proof required to establish responsibility is higher than in the present phase on reparation, which calls for some flexibility.” [cf. para. 124]. The Court took into account evidence submitted by the parties, but also reports from United Nations organs, the Porter Commission Report, and a 2010 Report by the UN Office of the High Commissioner for Human Rights, seeking to also establish corroboration between sources on particular findings of fact. [cf. para. 126]

Specific Factual Inferences Related to Reparation Estimates

On the individual merits of each compensatory claim, the Court reached various findings from its assessment of evidence, which potentially undermined the Court’s commitment to apply the context of the armed conflict and long passage of time as a tempering factor or basis for equitable considerations.  For instance, the Court held that there was no evidence that Uganda owes reparation for 180,000 civilian deaths claimed by DRC because “the victim identification forms submitted by the DRC are few in number in comparison to the number of lives lost claimed by the DRC” [cf. para. 146], and such victim identification forms were also defective when they are “not accompanied by corroborating documentation” [cf. para. 147].  The Court also rejected mortality surveys presented by scientific experts, civil society and academic databases used to identify direct conflict deaths based on individual incidents, stating these “cannot contribute to the determination of the number of lives lost that are attributable to Uganda” [cf. para. 148] and such databases are “not designed to determine the legal attribution of deaths” due to their limited probative value when “based mainly on press reports and reports by non-governmental organizations” [cf. paras. 149-150].  What was ultimately authoritative for the Court were United Nations reports (such as that coming from the UN Special Mission to the DRC/MONUC) and documents prepared by independent reports by third parties such as the 2010 Mapping Report commissioned by the UN Office of the High Commissioner for Human Rights, [cf. paras. 152-162] where the Court was silent on any discussion of what lent greater authoritativeness or credibility to the provenance of data, data collection methodologies, or the probative value of the primary sources used for the cited UN reports and documents.  The Court thus fixed the number of deaths for which Uganda owes reparation as “fall[ing] in the range of 10,000 and 15,000 persons”. [cf. para. 162]

Restrained Valuation on Loss of Life and Damage to Persons due to Lack of Authoritative Evidence: Civilian Injuries, Armed Force Deaths, Rape and Sexual Violence, Child Soldier Recruitment, Population Displacement

The Court again emulated the Ethiopia-Eritrea Claims Commission (EECC) when it came to finessing applicable valuation standards.  The Court did not consider it “appropriate to assign a higher value to lives lost in a deliberate attack on civilians…the EECC considered that…large per capita awards for non-material damage, which may be justified in individual cases, would be inappropriate in a situation involving significant numbers of unidentified and hypothetical victims.” [cf. para. 164], and also dismissed DRC’s claim for compensation for the loss of 2000 members of its armed forces due to lack of evidence. [cf. para. 165].  The Court found that it was “unable to determine, with a sufficient level of certainty, even an approximate estimate of the number of civilians injured by internationally wrongful acts of Uganda” [cf. para. 179], and simply decided that the award of compensation for personal injuries would be part of the global sum to be awarded for all damage to persons. [cf. para. 181].  

The Court rejected the DRC’s compensation claim for 1,710 victims of rape and sexual violence in Ituri and 30 victims of such acts outside of Ituri, again stressing that “it is impossible to derive even a broad estimate of the number of victims of rape and other forms of sexual violence from the reports and other data available to it.  This absence of adequate documentation has also been recognized by various United Nations reports.” [cf. para. 190]. The Court instead determined that it would also award compensation for rape and sexual violence as part of a global sum for damage to all persons. [cf. para. 193]. Similarly, the Court rejected the DRC compensation claim for the recruitment of 2500 child soldiers by Uganda and armed groups supported by Uganda, declaring that “there is limited evidence supporting the DRC’s claims regarding the number of child soldiers recruited or deployed [cf. para. 200], again relying on UN reports that did not reach identical findings as the DRC, and thus referred this claim as part of the global sum for damage to all persons. [cf. para. 206].

Significantly, when it came to the DRC’s compensation claim for forced displacement of populations, the Court found that it was “unable to ascertain” the “methodology, accuracy, and probative value” of data estimates coming from the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) [cf. para. 217] that was also referred to by the UN Special Mission to the DRC/MONUC and Human Rights Watch.  Other reports, that appeared to have been based on eyewitness testimony collected by MONUC investigators and reports by the UN Office of the High Commissioner for Human Rights, were more persuasive in establishing the fact of “thousands” of displacements, with the Court concluding that the displacements appear to have been “in the range of 100,000 to 500,000 persons”. [cf. paras. 214-223].  This would also be awarded within the global sum for all damage to persons. [cf. para. 225].

Without explanation or reasoning whatsoever, the Court then announced that it was “appropriate to award a single global sum of US$225,000,000 for the loss of life and other damage to persons”.  The Court was completely silent on what legal principle animated the chosen sum, or whether it was equity, its mistrust of many non-UN evidentiary sources, the precedent of the Ethiopia-Eritrea’s own evidentiary practices, or the Court’s sense of moral justice that made this figure appropriate for all of the deaths and other damage to persons (rape and sexual violence, child soldier recruitment, and population displacement, civilian injuries), given the ranges of thousands of persons affected that the Court itself acknowledged from the evidence before it.

Restrained Valuation on Damage to Property: Expectations Placed on DRC

The Court almost applied a de facto presumption on the DRC as the party expected to be in possession of evidence, notwithstanding the context that the Court itself recognized with the long passage of time since the filing of the case and the DRC’s own post-conflict situation. The Court acknowledged that “given the extraordinary character of the conflict and the ensuing difficulty of gathering detailed evidence for most forms of property damage, the DRC cannot be expected to provide specific documentation for each individual building destroyed or seriously damaged during the five years of Uganda’s unlawful military involvement in the DRC…[but] more evidence could be expected to have been collected by the DRC since the Court delivered its 2005 Judgment, particularly in relation to assets and infrastructure owned by the DRC itself and of which it was in possession and control.” [cf. para. 242].  Again, the Court gave scant reliance to DRC’s evidence, preferring to base its assessment on UN reports [cf. paras. 246-257].  When the Court declared the value of damage to property as a global sum of US$40,000,000, it was again utterly silent on the legal principle that animated its choice of this particular sum.

Restrained Valuation on Damage to Natural Resources: The Use of Court-Appointed Expert

The Court again did not give credence to the DRC’s methodology in estimating damage to natural resources, instead drawing heavily from the methodology of its Court-appointed Expert. [cf. paras. 268 et seq.], finding that “the methodological approach taken by the expert report is convincing overall” [cf. para. 277], without indicating the specific criteria the Court applied in being convinced of the Expert’s methodology, other than noting its transparency about its limitations, and the differentiation of the methodology according to each resource and reliability of data for the Expert’s estimation.  The Court stressed that “the approach taken in the expert’s report, which is based on estimates derived from reliable economic data, scientific publications, and the case file, produces a more persuasive assessment and valuation of the damage”. [cf. para. 277]. The Court was also silent on whether it was necessary to draw from a range of expert reports, or have counter-verification and review by other independent Experts as to the scientific rigor and overall quality of the Expert Report, or whether it considered overall ecological risk assessment (ERA), and not just assessing damage to individual items of natural resources as enumerated by the Court (e.g. minerals such as gold, diamonds, coltan, tin and tungsten; flora such as coffee, timber; fauna and deforestation) [cf. paras. 273-363].  Thus, while the Expert Report and related UN reports were deemed by the Court to “offer the best possible estimate of the scale of the exploitation of natural resources under the circumstances, they do not permit the Court to reach a sufficiently precise determination of the extent or valuation of the damage.” [cf. para. 364].  The Court simply reiterated that it could “award compensation in the form of a global sum, within the range of possibilities indicated by the evidence, and taking into account equitable considerations” [cf. para. 365], and set the global sum for looting, plundering, and exploitation of natural resources in the amount of US$60,000,000.

Outright Rejection for Claim of Macroeconomic Damage: Emphasis on Causality

The Court disposed of the DRC’s claim of macroeconomic damage by stressing the requirement for a “sufficiently direct and certain causal nexus between the internationally wrongful conduct of Uganda identified by the Court in its 2005 Judgment and this head of damage.” [cf. para. 383] The Court did not find such “certainty” in the academic reports commissioned by the DRC, both from its local experts and from overseas experts, observing that the local expert study “is based on an econometric model that is designed to show general trends or verify certain hypotheses that may suffice for abstract scientific purposes or policy recommendations.  The Court is not convinced that the methodology used in the study is sufficiently reliable for an award of reparation in a judicial proceeding.” [cf. para. 383]. In this respect, the Court did not comment on how it distinguished between the persuasiveness of the Court-Appointed Expert’s report, and what it found so unpersuasive from local DRC experts and DRC-commissioned overseas experts.

Other DRC Claims Rejected, Costs, and Interest

Finally, without elaborate discussion, the Court deemed DRC’s claim for an order requiring Uganda to investigate and punish those individuals responsible for violations, as a form of reparation through satisfaction, to be unnecessary, since Uganda “is [already] required to investigate and prosecute by virtue of the obligations incumbent on it.” [cf. para. 390].  The Court considered the other DRC claims (e.g. the creation of a fund to promote reconciliation, the claim for non-material harm) to be subsumed within the global sums of compensation awarded by the Court. [cf. paras. 391-392].  The Court ordered each party to bear their own costs. [cf. paras. 393-396].  In the event of payment being delayed, postjudgment interest shall be paid at 6%. [cf. para. 402].

Conclusion

The 2022 Reparations Judgment is instructive as to the Court’s interpretation of the Chorzow Factory standard of full reparation in a case of historic injustices with complex fact-finding issues and decades that intervened since the conflict, to the DRC’s filing of its Application, to the Judgment on the Merits, to the Reparations Judgment.  The Court’s choice, based on the consent of the parties to this dispute, to bifurcate proceedings on the merits with reparations, especially in a case involving mass human rights atrocities, also yielded counterpart problems on evidence preservation and ensuring the integrity of reliable reports, the veracity of eyewitness testimonies, and the chain of custody for forensic evidence.  While the Court itself reaches findings of fact, it does not have a trial-like process characteristic of civil or criminal proceedings in many jurisdictions.  It relies heavily on certain sources – such as the United Nations – to establish facts from (arguably hearsay) reports, without establishing a standardized process for evaluating or testing the (equally variable and unstandardized) fact-finding processes used in UN organs, missions, special rapporteurs, and entities such as the UN Office of the High Commissioner for Human Rights.  The UN’s own fact-finding itself is not always sacrosanct, as others have already observed (see among others here, here, and here), and the less probative value given to civil society, State party, academic, or interdisciplinary sources in the 2022 Reparations Judgment suggests a particular policy preference by the Court when it comes to its own evaluation of evidence in inter-State disputes involving mass human rights atrocities. 

The fact that the Court lent so much comparative weight to the evidentiary practices of the Ethiopia-Eritrea Claims Commission was also not explained, given other international courts, tribunals, and treaty bodies that also have related experiences on handling evidence of historic injustices and complex mass human rights atrocities.  When the Court privileges the comparative practices of a few or gives credence only to institutional findings of certain entities in the international system, but excludes others, what is their actual criteria for ‘authoritativeness’ of evidentiary sources or comparative evidentiary practices?  Would human rights fact-finding reports only have judicial and evidentiary significance if they carry the official stamp of the United Nations, instead of human rights defenders and local civil society organisations closer to the ground?  Would the work of national courts in dealing with complex evidence gathering for historic injustices (such as the famous Rios Montt Trial in Guatemala’s national court, working in coordination with the Inter-American Court of Human Rights) have any relevance for the International Court of Justice?

Most importantly, in the particular case of reparations that the DRC espoused on behalf of survivors and their families in this case, the Court was deafeningly silent on any need to hear directly from survivors and/or their families themselves. Given the pendency of this case for many years, it was a surprising omission in the fraught history of this dispute. Creating the device or construct of a “global sum” may appear to be the handy new methodology when individualized claims in a mass atrocities claim cannot be established, but the factual, conceptual, and moral disconnect between an arbitrary figure or amount and the estimated ‘ranges’ of those affected reduces the harm caused – a death, an injury, a rape, sexual violence, a forced displacement, among multitudes of injuries to person and dignity – to just an unwieldy, and regrettably dehumanizing, symbolic aggregator of individual harms.  It suggests that the Court, even in cases of mass human rights atrocities, only addresses the States Parties to the dispute, and potentially overlooks its evolving judicial function in the interpretation of international law as a whole, which now includes persons as subjects of international law and not just traditional objects of international law.  In the same vein, one wonders how the Court will fare in the reparations aspect of any judgment in the pending Gambia v. Myanmar dispute, with five million displaced Rohingya throughout Asia likewise the object of the claims of protection by the Gambia through the Genocide Convention, but where testimonial evidence from all affected Rohingya communities have not yet been disclosed.

Interestingly, the Court relied heavily on its ability to draw on equitable considerations, but it was utterly silent on what it means for the Court do equity in the largest reparations claim possible in this case of mass human rights atrocities in the heart of Africa.  Perhaps, paraphrasing the words of my Notre Dame Law colleague Samuel Bray, it’s also ripe for the Court to start looking at equity and equitable remedies as part of an intentional and institutional system with managerial devices and constraints.  That system of equitable remedies for reparations for human rights and humanitarian law violations could, in many ways, benefit from potentially creating a Supervisory Unit (what Bray would term in his scholarship as an “equitable helper”, or officers of courts that investigate compliance with equitable remedies) that purposely monitors the status of State compliance with reparative judgments, much like what the Inter-American Court was constrained to do instead of relying solely and exclusively on inter-State negotiations to reach the needed human rights reparation.  From our end at the Notre Dame Reparations Design and Compliance Lab, tracking State compliance (and non-compliance) with Court-adjudicated or tribunal-devised reparations is a first step to understanding the conditions under which States will or will not comply, and a necessary part of our legal analysis to understanding how international human rights courts and tribunals could design human rights reparations towards both achieving the optimal compliance of States, but also in determining the appropriateness and ultimate responsiveness of reparations to the needs for justice of the survivors of human rights violations.  Human rights reparations are more than a global sum.