Court/Judicial body: International Court of Justice
Date: December 19, 2005 CRC
Provisions: Article 19: Protection from abuse and neglect Article 38: Armed conflicts Optional Protocol on the Involvement of Children in Armed Conflict
Other international provisions:Hague Convention respecting the Laws and Customs of War on Land, Articles 25, 26, 28, 43, 46, 47Geneva Conventions: Protection of civilians in times of war (Fourth Convention, Articles 27, 32, 53; First Protocol, Articles 48, 51, 52, 57, 58, 75)International Covenant on Civil and Political Rights, Article 6: Right to lifeAfrican Charter on Human and Peoples’ Rights, Article 4: Right to life, Article 5: Protection against exploitation
Background: During a period of extensive ethnic and military conflict in the region, sometimes known as the Second Congo War, the Ugandan army invaded portions of the Democratic Republic of Congo. The DRC later filed a lawsuit against Uganda for armed aggression, exploitation of its natural resources, and various other human rights abuses.
Issue and resolution: Children in armed conflict. The Court found Uganda to be guilty of serious violations of international human rights law and international humanitarian law.
Court reasoning: There is credible evidence that the Ugandan army committed great atrocities in the DRC, including torture, killings, and widespread bombing and destruction of civilian targets. It also appears clear that the army incited ethnic conflicts in certain regions and set up training camps for child soldiers. Because the Ugandan army is an arm of the state, the Ugandan government must be held responsible for its actions.
Excerpt citing CRC and other relevant human rights 210. The Court finds that there is convincing evidence of the training in UPDF training camps of child soldiers and of the UPDF’s failure to prevent the recruitment of child soldiers in areas under its control. The Fifth report of the Secretary–General on MONUC (doc. S/2000/1156 of 6 December 2000, para. 75) refers to the confirmed “cross–border deportation of recruited Congolese children from the Bunia, Beni and Butembo region to Uganda”. The Eleventh report of the Secretary–General on MONUC (doc. S/2002/621 of 5 June 2002, para. 47) points out that the local UPDF authorities in and around Bunia in Ituri district “have failed to prevent the fresh recruitment or re–recruitment of children” as child soldiers. MONUC’s special report on the events in Ituri, January 2002–December 2003 (doc. S/2004/573 of 16 July 2004, para. 148) refers to several incidents where Congolese children were transferred to UPDF training camps for military training. … 219. In view of the foregoing, the Court finds that the acts committed by the UPDF and officers and soldiers of the UPDF (see paragraphs 206–211 above) are in clear violation of the obligations under the Hague Regulations of 1907, Articles 25, 27 and 28, as well as Articles 43, 46 and 47 with regard to obligations of an occupying Power. These obligations are binding on the Parties as customary international law.
Uganda also violated the following provisions of the international humanitarian law and international human rights law instruments, to which both Uganda and the DRC are parties:— Fourth Geneva Convention, Articles 27 and 32 as well as Article 53 with regard to obligations of an occupying Power;— International Covenant on Civil and Political Rights, Articles 6, paragraph 1, and 7;— First Protocol Additional to the Geneva Conventions of 12 August 1949, Articles 48, 51, 52, 57, 58 and 75,paragraphs 1 and 2;— African Charter on Human and Peoples’ Rights, Articles 4 and 5;— Convention on the Rights of the Child, Article 38, paragraphs 2 and 3;— Optional Protocol to the Convention on the Rights of the Child, Articles 1, 2, 3, paragraph 3, 4, 5 and 6. 220. The Court thus concludes that Uganda is internationally responsible for violations of international human rights law and international humanitarian law committed by the UPDF and by its members in the territory of the DRC and for failing to comply with its obligations as an occupying Power in Ituri in respect of violations of international human rights law and international humanitarian law in the occupied territory. 221. The Court finally would point out that, while it has pronounced on the violations of international human rights law and international humanitarian law committed by Ugandan military forces on the territory of the DRC, it nonetheless observes that the actions of the various parties in the complex conflict in the DRC have contributed to the immense suffering faced by the Congolese population.
The Court is painfully aware that many atrocities have been committed in the course of the conflict. It is incumbent on all those involved in the conflict to support the peace process in the DRC and other peace processes in the Great Lakes area, in order to ensure respect for human rights in the region. Declaration of Judge Koroma 6. Not only are the international Conventions violated by Uganda binding on it, but they are intended to uphold the rule of law between neighbouring States and constitute the foundation on which the existing international legal order is constructed. They oblige States to conduct their relations in accordance with civilized behaviour and modern values — to refrain from the use of military force, to respect territorial integrity, to solve international disputes by peaceful means, and to respect human rights, human dignity, and international humanitarian law. Under the international humanitarian law and international human rights instruments mentioned above, Uganda was obliged to refrain from carrying out attacks against civilians, to ensure humane treatment of them and even of combatants caught up in military conflict, and to respect the most basic of their rights, the right to life… In other words, in the course of a military conflict, civilians should be spared unnecessary violence, including massacres and other atrocities such as those allegedly perpetrated by the UPDF.
Furthermore, according to Article 3 of the 1989 Convention on the Rights of the Child, to which Uganda is also a party, in all actions concerning children, the primary consideration must be the best interests of the child. Article 19 provides that States parties agree to take all appropriate measures to protect the child from all forms of physical and mental violence, while Article 38 of the Convention provides that States parties undertake to respect and to ensure respect for the rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child. States parties to the Convention must take all feasible measures to ensure that persons who have not attained the age of 15 years do not take part in direct hostilities. Yet, according to the evidence before the Court, these obligations were wantonly flouted during the UPDF’s military campaign in the Congo, as children were recruited as child soldiers to take part in the fighting.
Follow up:In the spring of 2009, Uganda began withdrawing the last of its troops from the DRC.
CRIN comments:CRIN supports this decision as holding the government of Uganda responsible for its extensive violations of children’s rights under the CRC, the Optional Protocol on Armed Conflict, and other human rights instruments.
Citation: ICGJ 31 (ICJ 2005)
Link to full judgement: http://www.icj-cij.org/docket/files/116/10455.pdf