In 2005, the International Court of Justice found that Uganda had committed serious violations of international law during the 1998-2003 war in the Democratic Republic of Congo (DRC).
The court found that Uganda had:
committed acts of killing, torture and other forms of inhumane treatment of the Congolese civilian population, destroyed villages and civilian buildings, failed to distinguish between civilian and military targets and to protect the civilian population in fighting with other combatants, trained child soldiers, incited ethnic conflict and failed to take measures to put an end to such conflict. (para 345)
That judgement concluded Uganda was liable for damage to the DRC. But it left the question of how much Uganda should pay up to the parties to decide.
These negotiations ultimately failed and the DRC took Uganda back to the court in 2015. The court has now determined that Uganda must pay the DRC US$325 million in reparations.
This award represents a mixed victory for the DRC. On the one hand, it is much less than the $11 billion it sued for. On the other hand, it’s a significant award, both in terms of money and policy. The International Court of Justice has not traditionally been asked to award reparations. Its determination that Uganda must pay the DRC $65 million annually over the next five years represents a significant avenue for recognition of violations of international law.
In analysing the judgement and its implications, international law scholars have focused on the rules of evidence. Of particular interest is how damages are calculated.
The case is also significant because states are turning to this court more frequently to try cases involving violations of international humanitarian law, the laws of war. But it also raises a broader question of what happens when a court that’s designed to keep international peace starts assigning crippling damage awards.
If participation in international law practice carries deep financial risks to states, they may be less willing to engage. This could carry risks for the peaceful resolution of disputes.
Late to the party
There is a legal truism: where there is a right, there is a remedy. If the legally recognised harm you have suffered is irreversible (death, destruction, or actions with long-term consequences), the remedy is usually financial: reparations. Domestic courts have developed methods and legal principles for calculating what harm and legal violations should “cost”.
Public international law, the law that governs states, has been slow to follow. As I argue in my book on international law in Africa, one reason is that international courts are based on consent. With few enforcement mechanisms, symbolism is frequently their most effective tool.
Indeed, Uganda argued that compensation was unnecessary because the court had vindicated the DRC’s claims.
This reasoning echoes rationales provided by the court itself in previous cases. For example, in its 2007 Bosnia v. Serbia judgment the court stated that its findings were satisfaction enough and Bosnia was not entitled to financial compensation from Serbia.
This is not because the idea of financial reparation does not exist in international public law. In 1928, the Permanent Court of International Justice established the principle of reparation and ruled that “reparation must, as far as possible, wipe out all consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.”
This strong standard has rarely been applied. In the 20th century, the International Court of Justice awarded reparations for interstate claims only once, in the 1949 Corfu Channel case. In the 21st century, prior to the Uganda reparations award, the court made only two reparations awards, each for very small sums ($95,000 to Guinea; $300,000 to Costa Rica).
Other international courts and court-like bodies, however, are developing reparations jurisprudence. The International Criminal Court has begun to focus on reparations to victims as a necessary element for giving the court’s work impact. Human rights courts, which hear claims of citizens against their governments, have substantial histories of awarding reparations, and a high rate of compliance with their decisions.
Outstanding questions
While reparations practices are growing in international courts covering many jurisdictions, challenges remain. The DRC-Uganda judgement highlights several of these.
First, there are questions of how to calculate damage and liability. While the court’s 2005 condemnation of Uganda was unequivocal, the 2022 reparations judgement rejects most of the DRC’s arguments regarding damages. It rejects future damages and arguments regarding long-lasting harm as well.
Next there is the question of punitive versus compensatory damages. Punitive damages are higher than mere compensation. They are awarded to hurt the party that committed the harm and discourage harmful behaviour.
The International Court of Justice does not award punitive damages, and restricts its compensatory damage scheme to those damages where a direct connection between the harm and the responsible state can be established. But many of the damages the court recognised in its 2005 judgement arose from harms recognised by international criminal law. International criminal law, which can sentence convicted individuals to jail, is certainly punitive.
There is thus an argument to be made that certain international law violations, such as those Uganda committed in the DRC, should carry the possibility of punitive reparations.
As I have argued elsewhere, international criminal law relaxes criminal law’s standards of evidence, so that war criminals will not benefit from the chaotic circumstances they helped create.
Applying punitive damages for violations of international humanitarian law could get around the problem of proving the DRC’s claims. It would put states at the same level of risk that their citizens already face from international criminal law.
Of course, many historians locate the seeds of World War II in the punitive reparations scheme of the Treaty of Versailles following World War I. This perhaps gives us pause as we consider how international courts should punish states, particularly as regards “crippling” damage awards.
Finally, there is the question of compliance. Uganda has been ordered to pay $65 million annually for the next five years. It says it cannot. As law professor Diane Desierto notes, the International Court of Justice does not even have the administrative capacity to follow whether Uganda is complying.
Kerstin Bree Carlson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
This article was originally published on The Conversation. Read the original article.
