DRC Vs Congo Westlaw

EXTRATERRITORIAL RESPONSIBILITY OF STATES FOR..., 39 Suffolk Transnat’l L....
39 Suffolk Transnat’l L. Rev. 329
Suffolk Transnational Law Review

Summer 2016
Article
Roger-Claude Liwangaa1
Copyright (c) 2016 Suffolk University; Roger-Claude Liwanga
EXTRATERRITORIAL RESPONSIBILITY OF STATES FOR HUMAN

RIGHTS VIOLATIONS UNDER INTERNATIONAL JURISPRUDENCE:
CASE STUDY OF DRC V. UGANDA
I. INTRODUCTION
Despite the recognition of the universal nature of human rights, the concept of State responsibility for violation of
international human rights was restrictively interpreted in the past century. States were held responsible only for violations of
human rights that occurred in their own territories against their own citizens. 1 Thereby, it was obvious that individuals should
claim the violation of their rights against their own state. Since the second half of the twentieth century, the question has been
raised as to whether States should be held responsible for their violations of international human rights committed outside of
their national borders.2 This question of extraterritorial state responsibility for human rights violations met with difficulties
because international human rights treaties remained silent as to when and under what situations States might violate
international human rights law.3 Nevertheless, the international jurisprudence from the last few decades acknowledged that
State entities can be held liable for their extraterritorial human rights violations under some circumstances. 4

*330 This Article aims to understand the doctrine of extraterritorial application of human rights law, while also exploring the
conditions under which a State can be held accountable for violating human rights outside of its territory. By analyzing the
International Court of Justice’s (ICJ) 2005 ruling in the DRC v. Uganda case, this Article posits that the doctrine today is that
the extraterritorial responsibility of a given State for human rights violations applies in the circumstance of armed conflict,
international or not, including the situation of occupations. 5 This means that the State violator, known as the occupying State,
should have an “effective control” over the territory where the human rights violations occurred, known as the occupied
State.6 This Article also suggests that the effective control of the territory by the occupying State simply implies an effective
overall control of the occupied territory rather than control of every square meter of that territory. 7 In this regard, this Article
*331 emphasizes that the threshold of proof for ascertaining the effective control of the occupying State should not be very
high, as it would be enough for the occupied State to establish the presence of the occupying State’s organs on its territory
and their involvement in committing human rights violations. In addition, the occupied State may also prove that the
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1

occupying State and its organs provided military and other logistic supports to the nonstate agents to commit human rights
abuses on its territory.

This Article is structured as follows: Part II highlights the historical background of the DRC armed conflict Case. Next, Part
III focuses on understanding the doctrine of State extraterritorial responsibility for human rights violations. Finally, Part IV
analyses the applicable laws for a State’s extraterritorial violations of international obligations, focusing on the rapport
between the human rights law and humanitarian law.

II. HISTORICAL BACKGROUND OF THE DRC ARMED CONFLICT CASE
The Democratic Republic of Congo (DRC) Armed Conflict cases before the ICJ and the African Commission on Human and
People’s Rights (the African Commission) relate to the war that occurred on the territory of the DRC from 1996 through
2003.8 It is estimated that over three to four million people died as a result of conflict, three million people were displaced
within the DRC, two million fled the country to seek asylum in neighboring States, and several hundred thousands were
subjected to *332 inhuman treatments and destruction of property. 9 Also known as the Great African War or African World
War, approximately nine African countries and twenty armed groups were involved in this deadly conflict. 10 On one side, the
armed forces of the DRC and its allies Angola, Chad, Namibia, Sudan, and Zimbabwe fought against a coalition comprised of
the national armies of Burundi, Rwanda, and Uganda. 11 The conflict split the DRC’s territory into three parts: the DRC
government controlled the western region of the country, while Burundi, Rwanda, Uganda, and their supported proxy rebel
groups occupied the eastern and northeastern parts of the DRC.12

In June 1999, the DRC lodged a complaint before the ICJ 13 claiming that it was the victim of an armed aggression perpetrated
by Burundi, Rwanda, and Uganda. The DRC also claimed that the armed forces of Burundi, Rwanda, and Uganda committed
human rights violations against its population during the occupation beginning in August of 1998. 14 The DRC’s claims against
Burundi and Rwanda (DRC v. Burundi and DRC v. Rwanda) were dismissed based on procedural reasons because neither of
those States recognized the ICJ’s compulsory jurisdiction. 15 As a result, the DRC was forced to re-submit another *333
separate case against Uganda in 2002. In its 2005 judgment on Case Concerning the Armed Activities on the Territory of the
Congo (DRC v. Uganda), the ICJ ruled that Uganda was extraterritorially responsible for “massive human rights violations”
committed by its armed force against the Congolese civilian population. 16 As a result, the ICJ ruled that Uganda should not
repeat the violations,17 should participate in the peace process, 18 and should pay reparations to the DRC. 19 Nonetheless, the
question posed is: what does the doctrine of State extraterritorial responsibility entail? Under which conditions can a State be
held accountable for wrongdoings committed abroad?

III. DOCTRINE OF STATE EXTRATERRITORIAL RESPONSIBILITY FOR HUMAN RIGHTS VIOLATIONS
A. Unpacking the Concept of State Extraterritorial Responsibility
The idea of State responsibility for the breach of international obligations posits that States should be held accountable for the
acts or omissions of their organs, such as executive, legislative, judiciary and others, that violate international law. 20 The
doctrine of State extraterritorial responsibility for the violation of human rights is a corollary of this concept. A State’s
responsibility for the breach of international obligations is not territorially confined, but rather an obligation transcending the
borders of the States.21 This extraterritorial doctrine also implies that the home States should not only protect human rights,
but also punish the illegal conducts of their organs and nationals that violate the fundamental rights of individuals abroad. 22

Numerous international and regional human rights instruments define the *334 geographical scope of responsibility of States
to protect human rights. For instance, Article 2 (1) of the International Covenant on Civil and Political Rights (ICCPR)
provides: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory
and subject to its jurisdiction the rights recognized in the present Covenant . . . .” 23 The Convention against Torture, 24 the
Convention on the Rights of the Child, 25 the Convention for the Protection of Human Rights and Fundamental Freedoms, 26
and the Inter-American Convention on Human Rights 27 also refer to the protection of human rights transcending territorial
borders.28

*335 It is unclear whether these instruments address extraterritorial misconduct because these instruments only address State
responsibility for violations of human rights that occur “within its territory and subject to its jurisdiction” of the concerned
State.29 An unanswered question is whether the expression “within the territory and/or jurisdiction of State” can be stretched
to encompass territory outside of the national borders of the State at issue. Because of this “unclear” formulation on the
geographical coverage of these international instruments, the United States as well as other countries have, for instance, opted
for a “strict territoriality” reading of Article 2 (1) of the ICCPR. 30 According to U.S. interpretation, the ICCPR provisions lack
an extraterritorial application. Article 2(1) of the ICCPR only imposes the State parties to guarantee the protection of
fundamental rights of “individuals who are both within the territory of a State Party and subject to that State Party’s sovereign
authority.”31 This restricted reading of ICCPR jurisdiction means that the United States cannot be held accountable for acts of
torture committed outside of its territory and against foreign nationals. 32 DRC v. Uganda raised the question of interpreting
the geographic scope of the ICCPR provisions. 33 How did the ICJ and other judicial bodies interpret the provision of Article
2(1) of the ICCPR, particularly in DRC v. Uganda?34 What are the criteria for a State to be held extraterritorially accountable
for human rights violations?

*336 B. Judicial Interpretation of Article 2(1) of the ICCPR: DRC v. Uganda Case
1. Jurisdiction of State

Under international law, the jurisdictional competence of a State is principally territorial. 35 In other words, international law
does not prevent State X from exercising its jurisdiction on the territory of State Y under certain limits defined by the
sovereign territorial rights of the State Y. 36 State Y can consent or invite State X to exercise its jurisdiction within the territory
of State Y in the situation of diplomatic and consular relations. 37 Nevertheless, State X can also exercise its jurisdiction on the
territory of State Y without the consent or invitation of the former if the latter is acting as an occupying State. 38 In sum, a State
can either lawfully exercise its extraterritorial jurisdiction with the consent of the hosting State, or it can “unlawfully”
exercise its extraterritorial jurisdiction by means of military occupation.39

The case on Armed Activities on the Territory of the Congo (DRC v. Uganda) raised the issue of the DRC’s consent or non-
consent to the presence of the Ugandan troops in its territory. 40 The question posed was whether the DRC’s invitation of
Ugandan troops prior to August 1998, through bilateral Protocols, was an open-ended agreement for the presence of the
Ugandan army in its territory. 41 In addition, the Court considered whether there were particular formalities required for the
withdrawal of consent by the DRC to the presence of these troops. 42 In its ruling, the ICJ held that the DRC’s earlier consent
was chronologically and geographically limited, and that *337 the DRC could have withdrawn its consent to the presence of
the Ugandan troops in its territory even by a mere declaration from the DRC’s government as it had done in August 1998. 43
This means that the DRC’s withdrawal of its consent to the presence of Ugandan troops immediately changed the status of
the Ugandan army from that of “invited forces” to that of “occupation forces,” as numerous Ugandan soldiers remained in the
DRC after August 1998 without the DRC’s authorization.


As an occupying and uninvited force, Uganda was thereby exercising its jurisdiction on the part of the DRC territory
occupied by the Ugandan army. Accordingly, in interpreting Article 2(1) of the ICCPR, the ICJ concluded that the provisions
of the ICCPR and those of other human rights instruments, such as the Convention on the Rights of the Child and the African
Charter on Human and People’s Rights, should be applicable extraterritorially. 44 The ICJ had previously adopted similar
conclusions on the extraterritorial application of human rights through its Advisory Opinion on the Legal Consequence on the
Construction of a Wall in the Occupied Palestinian Territory, where it ruled that Israel should guarantee the respect of human
rights both within and outside of its territory.45

*338 Like the ICJ, other quasi judicial human rights bodies have also interpreted the provisions of human rights instruments
as being applicable beyond a State party’s national borders. The United Nations’ Human Rights Committee (HRC) has noted:
States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons
who may be within their territory and to all persons subject to their jurisdiction. This means that a State party
must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of
that State Party, even if not situated within the territory of the State Party.46

This conclusion of the HRC is a replication of its earlier communication in Sergio Euben Lopez Burgos v. Uruguay,47
concerning the Uruguayan authorities’ illegal detention of the complainant, a trade union leader. In this case, the HRC held
that State parties to the ICCPR can engage the State party’s responsibility for violations of rights committed by their agents
*339 on the territory of another State, whether or not they have the acquiescence of the government of that State. 48 Criticizing
the United States’ reading of Article 2(1) of the ICCPR and supporting the HRC’s interpretation, the former legal advisor of
the United States Department of State Harold Koh explained that the term “respect,” as mentioned in Article 2(1) of the
ICCPR, refers to the obligation of the State itself and its organs not to violate the Covenant rights, while the term “ensure”
entails the State’s obligation to affirmatively guarantee the protection of Covenant rights abroad and within its territory. 49

Likewise, regional human rights bodies have adopted similar positions as the ICJ and HRC. For instance, in Issa v. Turkey,50 a
case involving the Turkish security forces’ alleged extrajudicial killings of Iraqi Kurds in Iraq, the European Court of Human
Rights (ECtHR) ruled that:
[A] State may also be held accountable for violation of the Convention rights and freedoms of persons who are
in the territory of another State but who are found to be under the former State’s authority and control through
its agents operating - whether lawfully or unlawfully - in the latter State.51

The Inter-American Court of Human Rights (ACtHR) 52 and the African Commission53 recognize that States can engage their
responsibilities for human rights violations committed outside of their national borders.

One can make two observations from the international and regional jurisprudence on the extraterritorial application of human
rights. First, while establishing the notion of State territorial jurisdiction is a principle under international law, the judicial
*340 bodies have also recognized that there are some exceptional situations where States’ actions performed outside of their
national territories can constitute the exercise of their jurisdiction under the provisions of the ICCPR and regional human
rights instruments. Second, by recognizing that the protection of human rights should be guaranteed both inside and outside
of a State’s national borders, international and regional human rights bodies recognize thereby that all human rights are part
of international customary law.54 As part of customary international law, the rights guaranteed under the relevant provisions in
the ICCPR produce erga omnes effects, meaning that all States, including those States which are not parties to the ICCPR,

are bound to protect ICCPR guaranteed rights within their national boundaries and abroad. 55

2. Criteria for Extraterritorial Application of Human Rights

In light of the above, the provisions of human rights instruments are applicable extraterritorially only under certain
exceptional situations. There are specific requirements that must be met to engage a State’s responsibility extraterritorially.
The concerned State should be an occupying State with effective control over the occupied territory, and the unlawful actions
or omissions committed by the State’s organs on the occupied territory should be attributable to that State. 56

a. Attributable Accountability for Actions of State’s Agents Acting Abroad

Attributable State responsibility is the corollary of the international law principle that all illicit acts of a State that violate
international law should involve the responsibility of that State. 57 The accountability of a State for actions or omissions of its
organs is based on the elementary fact that a State cannot act in itself as being a juristic person. 58 States can only perform by
*341 and through their organs and representatives.59 The States’ organs include members of government, parliamentarians,
judicial officers, and others such as soldiers and police. 60 Therefore, any international wrongdoings of these organs acting on
behalf of the State would be attributed to the latter.

In DRC v. Uganda,61 the ICJ also examined “the question as to whether acts and omissions” of the Ugandan army and its
officers and soldiers acting in the DRC could be attributed to Uganda.62 The ICJ confirmed that:
The conduct of the UPDF [Uganda People Defense Forces] as a whole is clearly attributable to Uganda, being
the conduct of a State organ. According to a well-established rule of international law, which is of customary
character, ‘the conduct of any organ of a State must be regarded as an act of that State.’ The conduct of
individual soldiers and officers of the UPDF is to be considered as the conduct of a State organ. In the Court’s
view, by virtue of the military status and function of Ugandan soldiers in the DRC, their conduct is attributable
to Uganda. The contention that the persons concerned did not act in the capacity of persons exercising
governmental authority in the particular circumstances, is therefore without merit.63

The ICJ ruled that the conduct of the Ugandan army was attributable to Uganda because of the status of the Ugandan army as
a State organ.64 But the Court also established a distinction between two categories of individuals: (1) individuals having the
status of de jure organs of Uganda, such as the Ugandan army; and (2) individuals not having the status of de jure organs of
Uganda despite being militarily equipped and trained by Uganda, such as local rebel groups supported by *342 Uganda in the
DRC.65 The Court noted that the conduct of members of the Movement for the Liberation of Congo (MLC), an anti-DRC
government insurgent party receiving military training and support from Uganda, could not be attributable to Uganda because
it lacked the quality of a State organ. 66 This position of the ICJ is identical to its previous ruling in Case Concerning Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), where the Court declared that
the conduct of individuals lacking the legal status of an organ of the State cannot be imputed to the State. The nuance
between the ICJ’s rulings in the DRC v. Uganda case and the Nicaragua case is that in the latter, the ICJ distinguished among
individuals who lacked the legal status of organs of the United States but were still acting on its behalf. 67 The Court made a
distinction between: (1) those individuals fully dependent on the United States in terms of logistics, finance, planning, and
direction (the Unilaterally Controlled Latin Assets, UCLAs); 68 and (2) those who only received logistics and finance from the
United States but conserved a certain level of autonomy in their actions (the contras).69 Moreover, the ICJ upheld that the
United States was extraterritorially responsible for the conduct of UCLAs 70 rather than for the actions of the contras.71


It appears that the ICJ’s position is inconsistent regarding the relationship between a “sponsoring State” and the non-State
agents acting on behalf of the State. The Court has not clarified *343 under which condition the State could become
accountable for the conduct of non-State’s organs. The next section will discuss this issue in depth. It is important to
emphasize that the conduct of the State’s organs would still be attributable to the State even if the organ exceeded its
authority or contravened the instructions received. 72 In other words, the disobedience of the State’s organs to the orders of
their authorities is irrelevant as a defense for the State to escape engaging its international responsibility. 73

Likewise, regional human rights bodies have adopted the same view as the ICJ. In DRC v. Burundi, Rwanda and Uganda,74
the African Commission held the respondent States responsible for “grave and massive violations of human and peoples’
rights committed by the armed forces of the Respondent States” in the DRC’s territory. 75 Equally, in Loizidou v. *344
Turkey,76 the ECtHR ruled that, “the responsibility of Contracting States can be involved by acts and omissions of their
authorities which produce effects outside their own territory.” 77 The ACtHR also concluded the same way in the Velasquez
Rodriguez case concerning the Honduran government’s practices of targeting forced disappearance against the complainant. 78

The State’s attributed responsibility implies that the conduct of the State’s organs is in violation of international law. After
establishing that the conduct of the Ugandan army was attributable to Uganda in the Armed Activities on the Territory of the
Congo (DRC v. Uganda) case,79 the ICJ also examined if the conduct of the Ugandan army constituted a breach of
international law.80 In DRC v. Uganda, the ICJ emphasized that conduct attributable to the State must also constitute a breach
of an international obligation of that State in order to demonstrate the existence of an internationally wrongful act. 81 Before
the existence of the ICJ, the Permanent Court of International Justice (PCIJ) adopted identical positions in the Factory at
Chorzow case, opposing Germany against Poland regarding certain German interests in Polish Upper Silesia, 82 and the *345
Phosphates in Morocco case, opposing Italy against France concerning the phosphates in Morocco. 83 It may be inconceivable
for a State to engage its international responsibility if the conduct of the State’s organs complied with international laws.

Unlike the ICJ and the PCIJ, the African Commission on Human and People’s Rights (African Commission) did not examine
the question of State responsibility for internationally wrongful acts by emphasizing the existence of a State’s attributable
responsibility for acts of its organs, and the breach of international obligations by the conduct of the State’s organs. In
assessing the human rights violations in DRC v. Burundi, Rwanda and Uganda, the African Commission directly concluded
that the actions of the respondent States’ armed forces were a violation of human rights 84 inconsistent with international and
regional human rights standards.85 The African Commission skipped answering the question if the conduct of the respondent
States’ armed forces were in fact attributable to the concerned States. It appears that the African Commission did not doubt
that the armed forces that perpetrated human rights violations in the DRC were regular national armies acting on behalf of the
respondent States.86 Consequently, the attribution of the armies’ acts to their home States was not an issue, as the respondent
acknowledged the presence of their respective armed forces in places where the atrocities were committed. 87

b. Belligerent Occupation and Effective Control

Another factor to determine the extraterritorial jurisdiction of State X is when State X exercises effective control on the
territory of State Y because of military occupation of that territory. 88 The requirement of the existence of occupation and
effective control for State extraterritorial responsibility also raises a question. For instance, how does one consider whether
the occupying State, i.e., State X, has effective control over the occupied territory, i.e., State Y?

*346 Indeed, in both DRC v. Uganda and DRC v. Burundi, Rwanda and Uganda, the ICJ and African Commission also
adjudicated the issue of occupation and effective control of the respondent States’ armed forces. 89 Unlike the African
Commission,90 the ICJ observed that a “territory is considered to be occupied when it is actually placed under the

authority of the hostile army, and the occupation extends only to the territory where such authority has been
established and can be exercised.”91 In other words, the ICJ established the principle that, for State X to be qualified
as the “occupying Power,” (1) the armed forces of State X should be in fact established in the territory of State Y; and
(2) the parts of the territory of State Y should be under the authority of the army of State X. 92 The Court previously
held a similar position in its Advisory Opinion on the Construction of a Wall in the Occupied Palestine.93 This means that
the foreign army should not only be stationed in parts of the territory of the other State, but also substitute for *347
the authority of the national government in the places of its location.94

In ascertaining whether Uganda met the definition of an occupying power with effective control, the ICJ first noted that
Ugandan troops were stationed in the DRC territory. 95 Second, the Court observed that the commander of the Ugandan army
in the DRC’s region of Ituri had established another administration by creating a new “province of Kibali-Ituri” and
appointing a governor of that province in June 1999. 96 Such an appointment of the governor implies the substitution of the
local DRC authorities by the Ugandan army,97 thereby placing the DRC territory of Ituri under the authority of the Ugandan
army. Accordingly, the ICJ ruled “that Uganda was the occupying Power in” the DRC’s region of Ituri. 98 The Court stressed
that Uganda, as the occupying power, had the obligation to enforce the respect of human rights and protect the inhabitants of
the occupied territory against acts of human rights abuses, including those perpetrated by a third party, such as rebel groups
acting on their own account.99

In DRC v. Uganda, the DRC also requested the Court to declare Uganda as an occupying power in areas outside of Ituri, such
as in Kisangani. Nevertheless, the ICJ adopted another approach in ascertaining Uganda’s occupation and effective control in
the DRC’s city of Kisangani. The Court first observed that there is a distinction between the conduct of: (1) the Ugandan
armed forces; and (2) those of the armed groups militarily equipped and trained by Ugandan army. 100 Subsequently, the Court
ruled that Uganda did not meet the definition of an “occupying power” in areas outside of the DRC territory of Ituri,
particularly in Kisangani.101 The ICJ justified its position by emphasizing that the Ugandan army in Kisangani had merely
*348 exercised an “administrative control” of the city’s airport 102 rather than an effective control of the city. The ICJ further
noted that only the Congolese rebel groups, including those receiving direct support from the Ugandan army, were
administering and controlling the DRC territory of Kisangani 103 and that there was no clear evidence that those rebel
movements were themselves “‘under the control”’ of Uganda.”104

In making their determination, the ICJ did not address the meaning of the term “administrative control.” 105 Additionally, there
is the issue of the level of State involvement for the actions of private actors, i.e., non-State agents, for the former to engage
its extraterritorial responsibility. Was “administrative control” the lower level of involvement for which the Ugandan army
could illegally exercise with impunity in the territory of another State, and which is different from the required “effective
control” for State extraterritorial responsibility? What does “effective control” imply: the control of each square meter of the
occupied territory or the State’s active control and direction of the private actors’ activities? In Cyprus v Turkey, the ECtHR
held that “‘effective control’ does not mean control over every act or part of the territory, but effective overall control over a
territory.”106 In this context, the State’s exercise of the overall control over a rebel group may include “state finances, arms,
and [training of] the group as well as generally participating in planning and supervision of the group’s activities . . . .” 107

It is regrettable that the ICJ set a higher burden of proof for injured States by requiring them to provide evidence that the
foreign State gave specific instructions or directions to the rebel groups to commit human rights violations to establish the
foreign State’s level of control over such groups. 108 The fact that the ICJ ruled that the Ugandan army in the DRC’s city of
Kisangani had only “administrative control” rather than being *349 an “occupying Power” with effective control was
dangerous.109 Such a ruling sets a negative precedent, whereby States can evade engaging their extraterritorial responsibilities
through using a group of individuals, rather than State official agents, to destabilize other States and undertake conduct that

violates human rights abroad. 110 It is likely that the MLC rebel group, who received military support and training from the
Ugandan army, was acting according to the plan designed by the latter, even if the former might have had a certain degree of
independence. For instance, Uganda avowed that “it gave ‘just enough’ military support to the MLC to help Uganda achieve
its [[military] objectives” in another DRC region. 111 Such an acknowledgment may have been sufficient for the Court to
conclude that the Congolese rebel movement MLC was a de facto organ of Uganda, thereby holding Uganda responsible for
the human rights violations that occurred in the city of Kisangani. Nevertheless, the ICJ’s viewpoint in this case is not novel
to the extent that the Court reached a similar conclusion in its previous judgment in Case Concerning Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). In the Nicaragua case, the
complainant (Nicaragua) approached the ICJ against the United States alleging that the United States was responsible for
illegal military and paramilitary activities in and against Nicaragua. The ICJ rejected Nicaragua’s allegation, stating that:
United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying
and equipping of the contras, the selection of . . . targets, and the planning of the whole of its operation, is still
insufficient in itself . . . for the purpose of attributing to the United States the acts committed by the
contras . . . . For this conduct to give rise to legal personality of the United States, it would in principle have to
be proved that that State had effective control of the military or paramilitary operations in the course of which
the alleged violations were committed.112

The parallel between the conduct of the United States in Nicaragua and that of Uganda in the DRC’s city of Kisangani is
*350 that the ICJ acknowledged that the two States used and supported anti-national government insurgents, rather than their
own agents or organs, to perpetrate internationally wrongdoing acts in the host countries. Those insurgents effectively
functioned as proxy armies, executing the tasks that the violating States assigned them to perform. Despite this evidence, the
ICJ refused to recognize the quality of de facto organs to these insurgents, a quality that would have led to the attribution of
the insurgents’ acts to their foreign masters.

The ICJ’s position in assessing the concepts of belligerent occupation and effective control appears very inconsistent in the
DRC v. Uganda case. On one hand, the Court says that if it were proven that the Ugandan army in the DRC territory of Ituri
had participated in the planning, support and executions of acts, then it would be sufficient for Uganda to be responsible for
its army’s actions. On the other hand, the Court says that if the DRC could prove that the Ugandan army in the DRC territory
of Kisangani had participated in the financing, support and training of the rebel groups who subsequently executed acts
planned by the Ugandan army, it would be insufficient for Uganda to engage its responsibility for its army’s actions.

Unlike the ICJ, the International Criminal Tribunal of the Former Yugoslavia (ICTFY)’s Appeals Chamber seems to offer a
different approach in assessing the State’s effective control in Tadic case.113 In Tadic, the ICTFY stated that:
The principles of international law concerning the attribution to States of acts performed by private individuals
are not based on rigid and uniform criteria. . . . [I]f it is proved that individuals who are not regarded as organs
of a State by its legislation nevertheless do in fact act on behalf of that State, their acts are attributable to the
State. The rationale behind this rule is to prevent States from escaping international responsibility by having
private individuals carry out tasks that may not or should not be performed by State officials, or by claiming
that individuals actually participating in governmental authority are not classified as State organs under national
legislation and therefore do not engage State responsibility.114

*351 Like the ECtHR,115 but unlike the ICJ, the ICTFY emphasized that the required effective control “[goes] beyond the
mere financing and equipping of such [armed] forces and involving . . . participation in the planning and supervision of

military operations.”116 Nevertheless, the overall control of the foreign State cannot be extended “‘to the issuance of specific
orders or instructions relating to single military actions . . . .”’117

The ICTFY’s position is that the threshold of proof for ascertaining the effective control of a State acting illegally in the
territory of another should not be very high. 118 The occupied State should not be required to establish that the occupying State
instructed the insurgents acting on its behalf in the occupied territory. 119 It is sufficient for the occupied State to prove that the
occupying State and/or its organs have financed, equipped, supervised and planned the private actors’ actions. 120 This
requirement of a reasonable degree of evidence would easily be met by the injured State, and would facilitate holding States
responsible for the actions of individuals acting on their behalf abroad, including for persons having the legal status of organs
of the State.

IV. APPLICABLE LAWS FOR STATE’S EXTRATERRITORIAL VIOLATIONS OF INTERNATIONAL

OBLIGATIONS: HUMAN RIGHTS LAW VS. HUMANITARIAN LAW
The provisions of human rights law and humanitarian law have the same objective, consisting of protecting individuals
against those who would like to destroy them. 121 Even though the atrocities of the second World War led to the development
of humanitarian law through the adoption of the 1949 Geneva Conventions, and human rights law through the adoption of the
1966 ICCPR and ICESCR, the relationship between these two branches of law has always been unclear. 122 Until recently, the
*352 different positions adopted by international or quasi, judicial bodies exposed the ambiguity on the relationship between
these two branches of international law.123 The traditional reading treated human rights law as lex generalis, meaning law of
general application, implying it should be applicable only during peacetime. 124 In contrast, humanitarian law is described as
lex specialis, i.e., meaning law of special application, a law of armed conflict, and thus applicable during wartime, “to the
exclusion of human rights law.”125

The supporters of the parallel lines between humanitarian law and human rights law also argue that the latter governs the
rapport between States and their own citizens while the former deals with the relationship between States and the citizens of
non-combatant enemies.126 In its 2003 Resolution 2003/84 relating to the coalition occupation of Iraq, the HRC requested that
“all parties to the current conflict in Iraq “. . . abide strictly by their obligations under international humanitarian law, in
particular the Geneva Conventions and the Hague Regulations including those relating to the essential civilian needs of the
people of Iraq.”127 This formulation may insinuate that the HRC stood for the exclusive application of humanitarian law
during war time. In addition, this appears to be in contravention of the HRC’s earlier Resolution 1991/67 on the Iraqi
occupation of Kuwait in 1991, where the Commission condemned Iraq’s violation of international human rights instruments
during its occupation of Kuwait.128 Of course, the proponents of a modern *353 approach on the relationship between human
rights law and humanitarian law thought that “[t]he conventional division between the law of war and the law of peace is no
longer tenable. . . . [T]he law of war no longer automatically excludes the application of the law of peace.” 129 This not only
means that the protection of human rights applies during both peacetime and wartime, 130 but also that human rights
instruments absorb humanitarian law instruments.131

Considering this doctrinal confusion, the ICJ was also called to address the issue of the applicability of human rights during
wartime in the DRC v. Uganda case.132 After establishing that the conduct of the Ugandan army was attributable to Uganda
and that “this conduct constituted a breach of Uganda’s international obligations[,]” 133 the ICJ needed to answer if that
conduct was a violation of international human rights law or international humanitarian law. The ICJ noted that:
The protection offered by human rights conventions does not cease in case of armed conflict, save through the
effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil

and Political Rights. As regards the relationship between international humanitarian law and human rights law,
there are thus three possible situations: some rights may be exclusively matters of international humanitarian
law; others may be exclusively matters of human rights law; yet others may be matters of both these branches
of international law.134

This ICJ’s ruling is similar to its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory on the applicability of human rights *354 law in armed conflicts.135 Likewise in DRC v. Burundi,
Rwanda and Uganda case, the African Commission supported the modern theory of the applicability of human rights law in
case of armed conflict upholding that:
[T]he series of violations alleged to have been committed by the armed forces of the Respondent States fall
within the province of humanitarian law . . . covered by the Four Geneva Conventions and the Protocols
additional to them. [[In addition,] the [African] Commission having found the alleged occupation of parts of the
provinces of the Complainant State by the Respondents to be in violation of the [African] Charter cannot turn a
blind eye to the series of human rights violations attendant upon such occupation.

The combined effect of Articles 60 and 61 of the African Charter enables the [[African] Commission to draw inspiration from
international law on human and peoples’ rights. . . . [T]he Four Geneva Conventions and the two Additional Protocols
covering armed conflicts constitute part of the general principles of law recognized by African States, and take [the] same
into consideration in the determination of this case.136

*355 Two observations can be made on the ICJ and the African Commission’s rulings in the DRC v. Uganda and the DRC v.
Burundi, Rwanda and Uganda cases: (1) the application of human rights can suffer from no derogation even during war time,
and (2) there are three feasible scenarios where the rights of individuals can be protected during war time.

A. Non-Derogability of Human Rights
Article 4(2) of the ICCPR provides that the right to life, the right not be subjected to torture or cruel, inhuman or degrading
treatment or punishment, the right not be subjected to slavery, and the right not to be punished for a crime not existing in the
time of its commission can suffer from no derogation during both peace and war times. 137 This also implies that certain other
rights, which are not listed in Article 4(2) of the ICCPR, can be derogated in the case of war or public emergency. 138 The
European Convention on Human Rights (ECHR)139 and the American *356 Convention on Human Rights (ACHR)140 also
forbid derogation for some rights, including the right to life, the right not to be subject to slavery or degrading treatments,
while authorizing derogation for other rights in the context of war and/or public emergency. Nevertheless, unlike the ICCPR,
the ECHR, and the ACHR, the African Charter does not contain a derogation clause because the existence of emergencies and
special circumstances cannot limit the protection of human rights. 141 Likewise, the 1989 U.N. Convention on the Rights of the
Child and the 1990 African Charter of the Rights and Welfare of the Child lack derogation clauses. Nevertheless, even in the
case of derogation, there are two procedural requirements that should be met in order for the derogation to be considered
lawful under international law. This means that the State willing to apply derogation(s) should: (1) declare officially the
right(s) that will be subjected to derogation and the date of termination of that derogation, and (2) inform other States of such
derogation.142 Nevertheless, open questions remain as to what would happen if a State fails to comply with procedural
requirements during a war situation, and whether that State would be held accountable for the protection of all human

rights.143 In Isayeva v. Russia144 on the bombardment of Katyr-Yurt (Chechnya), the ECtHR noted that Russia has declared,
“No martial law and no state of emergency in Chechnya, and no derogation has been made under Article 15 of the
Convention. The operation in question therefore has to be judged against a normal legal background.” 145 From this ruling, it
appears that the Court would hold the State accountable for the protection all human rights in the case of the State’s failure to
comply with the procedural requirements *357 relating to the derogation of human rights during the war situation. In other
words, some derogable rights can become nonderogable if the States fail to execute their international obligations on the
issue of derogability.

B. Complementary Relationship Between Human Rights Law and Humanitarian Law
The ICJ described three feasible scenarios whereby the rights of individuals can be protected during war time: (1) some rights
are exclusively protected under international humanitarian law; (2) other rights are exclusively protected under international
human rights law; and (3) some rights are protected under both branches of international law. 146 Even though the ICJ did not
specify what kinds of rights are respectively protected by each of the two branches, the Court’s formulation of their judgment
reflects the complementary relationship between the provisions of international human rights law and international
humanitarian law.147 As in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory case,148
the ICJ upheld that the third scenario is applicable in DRC v. Uganda by stating that “both branches of international law,
namely international human rights law and international humanitarian law, would have to be taken into consideration.” The
Court further concluded that international human rights instruments are applicable “in respect of acts done by a State in the
exercise of its jurisdiction outside its own territory,” particularly in occupied territories.” 149

It is unclear if the ICJ and the African Commission’s option for simultaneous application of human rights law and
humanitarian law imply that each of these two branches of law may be incapable by itself to offer full protection to
individuals during the period of war. This is possibly true, because each of the branches of law may have some gaps that
render the protection of civilians legally incomplete if applied alone in the context of *358 armed conflicts. The comparison
of the provisions of the ICCPR and the 1977 Protocol Additional to the Geneva Conventions of August 12, 1949, on the
protection of the right to life can serve as an illustration. In this scenario, assume that a military camp of State Y is situated in
villages close to civilians, and that State X has only targeted against this military objective within the territory of State Y, but
that the attack of State X also killed civilians who lived near that military camp. The question is what would happen under
international law?

Under the 1977 Protocol Additional to the Geneva Conventions, the killing of these civilians within State Y is not really
prohibited to the extent that it is perceived as “collateral damage” because it was inevitable. 150 The 1997 Protocol Additional
only forbids the collateral damage expected from an attack that is excessive when compared with the military advantage
anticipated.151 Under the provisions of the ICCPR and regional human rights instruments the killing of civilians in State Y
constitutes an arbitrary deprivation of the individuals’ right to life whether the killing was intentional or not. 152 In light of this
hypothetical example, the sole application of the humanitarian law, the Protocol Additional, would leave the civilian victims
unprotected because the attack under which they suffered was “allegedly” proportional. Therefore, to increase the protection
of civilians during a war situation, the provisions of humanitarian law should be applied jointly with those of human rights
law.

This novel approach of the ICJ and the African Commission to simultaneously apply both humanitarian law and human *359
rights law is called “‘the belt and suspenders’ approach.” 153 This means that humanitarian law is perceived as “the belt” and
human rights law as “suspenders” in terms of protecting the civilians, described as “pants,” during wartime. 154 If the “belt”

breaks, meaning the case of inconsistency of humanitarian law, then the “suspenders” would hold up the pants, meaning
human rights law would fill the gap of humanitarian law in offering protection to civilians. The ICJ opted for a cautious
approach, avoiding a risk where a category of individuals might be unprotected if it had only applied one branch of
international to the exclusion of the other. The rationale behind the combined application of both branches of international
law is that this approach is not only more attractive, but also offers better protection to the individuals. 155

V. CONCLUSION
In conclusion, State entities can no longer evade engaging their responsibilities for human rights violations committed
domestically or abroad, or during peace or wartime. The DRC v. Uganda case is one of the prototype of situations where a
State was extraterritorially held accountable for human rights abuses perpetrated outside of the national borders. The merit of
this case is that the ICJ clarified some existing ambiguity within the provisions of international human rights instruments on
the issue of the protection of the fundamental rights of individuals wherever they are located. Despite this, the ICJ did not
resolve all the problems regarding State extraterritorial responsibility for human rights violations, particularly relating to the
case where a State used non-state organs to violate human rights abroad. In this regards, the ICJ’s position has been
inconsistent, as it appears to use an à-la carte approach in applying international legal standards.

Footnotes
a1
Fellow at Harvard University’s FXB Center for Health and Human Rights; Lecturer of International Law of War at Suffolk
University Law School; S.J.D. (Suffolk University); L.L.M. (University of Cape Town); and Licence en Droit (Université
Protestante au Congo). This article is an adaptation of a paper presented as part of a directed study at Suffolk University Law
School in 2015.
1
Mark Gibney et al., Transnational State Responsibility for Violations of Human Rights, 12 HARV. HUM. RTS. J. 267, 267 (1999).
2
Noam Lubell, Challenges in Applying Human Rights Law to Armed Conflict, 87 INT’L REV. RED CROSS 737, 739 (2005).
3
Cordula Droege, The Interplay Between International Humanitarian Law and International Human Rights Law in Situations of
Armed Conflict, 40 ISR. L. REV. 310, 325 (2007).
4
Id. See also Armed Activities on the Territory of Congo (Dem. Rep. Congo v. Uganda), Judgment, 2005 I.C.J. 168, P 217 (Dec.
19); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, P
107-08 (Jul. 9) [hereinafter Legal Consequences of the Construction of a Wall]; U.N. Human Rights Comm., Sergio Euben Lopez
Burgos v. Uruguay, Communication No. R.12/52 (Jun. 6, 1979), U.N. Doc. Supp. No. 40 (A/36/40) P 176 (1981) [hereinafter
Sergio Euben Lopez Burgos]; Issa v. Turkey (Judgment), App. No. 31821/96, Eur. Ct. H.R., P 71 (2004); Velasquez Rodriguez v.
Honduras, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4, P 170 (July 29, 1988); Dem. Rep. Congo v. Burundi, Rwanda and Uganda,
Decision 227/99, Afr. Comm’n H.P.R., P 69-89 (2003) [hereinafter Dem. Rep. Congo v. Burundi, Rwanda and Uganda].
5
Droege, supra note 3, at 325.
6
See U.N. Human Rights Comm., General Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States

Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13, P 10 (May 26, 2004) [hereinafter The Nature of the General Legal
Obligation]. The Committee noted:
States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within
their territory and all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid
down in the Covenant to anyone within the power or effective control of that State Party.... This principle also applies to those
within the power or effective control of the force of a State Party acting outside its territory, regardless of the circumstances in
which such power or effective control was obtained....
Id. See also Issa, App. No. 31821/96, Eur. Ct. H.R P 71. In this case, the European Court of Human Rights upheld:
[A] State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of
another State but who are found to be under the former State’s authority and control through its agents operating - whether lawfully
or unlawfully - in the latter State.
Id.
7
“Effective... control” implies an overall control over a territory rather than the control over every act or part of the territory. See
Cyprus v. Turkey (Judgment), App. No. 25781/94, Eur. Ct. H.R. P 77 (2001); see also Armed Activities on the Territory of the
Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. P 173. The International Court of Justice (ICJ) ruled that “the Ugandan armed
forces in the Democratic Republic of the Congo (DRC) were not only stationed in particular locations but also that they had
substituted their own authority for that of the Congolese Government.” Armed Activities on the Territory of the Congo (Dem. Rep.
Congo v. Uganda), 2005 I.C.J. P 173. In this context, the ICJ concluded that Uganda was the occupying power that had effective
control of Ituri (a district of the DRC). Id. P 178. See also Droege, supra note 3, at 328.
8
Andrew Mollel, International Adjudication and Resolution of Armed Conflicts in the Africa’s Great Lakes: A Focus on the DRC
Conflict, 1 J. L. & CONFLICT RES. 10, 14-15 (2009); see also Paul T. Zeleza, Introduction: The Causes & Costs of War in Africa:
From Liberation Struggles to the ‘War on Terror’, in THE ROOTS OF AFRICAN CONFLICTS: THE CAUSES AND COSTS 9
(Alfred Nhema & Paul T. Zeleza, eds., 2008); Democratic Republic of Congo, WORLD WITHOUT GENOCIDE,
http://worldwithoutgenocide.org/genocides-and-conflicts/congo (last visited Jul. 8, 2015).
9
Zeleza, supra note 8, at 9; Timothy M. Shaw & Pamela K. Mbabazi, Two Africas? Two Ugandas?: An African ‘Democratic
Developmental State’? or Another ‘Failed State’?, in THE ROOTS OF AFRICAN CONFLICTS: THE CAUSES AND COSTS
228 (Alfred Nhema & Paul T. Zeleza, eds., 2008).
10
Virgil Hawkins, Stealth Conflicts: Africa’s World War in the DRC and International Consciousness, J. HUMANITARIAN
ASSISTANCE (2004), available at https://sites.tufts.edu/jha/archives/71.
11
Mollel, supra note 8, at 16. See generally U.N. Sec. Council, Final Report of the Panel of Experts on the Illegal Exploitation of
Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo , U.N. Doc. S/2002/1146 (Oct. 16, 2002).
12
Mollel, supra note 8, at 16.
13
The DRC’s complaint before the ICJ is justified by the fact that it wanted Burundi, Rwanda, and Uganda to be mostly condemned
for their acts of armed aggression. Therefore, the ICJ is the unique court internationally mandated to adjudicate such acts of
aggression committed by a state against another rather than African Commission for Human Rights.
14
Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Burundi), Order, 2001 I.C.J. 111 (Jan. 30). In January 2001,

the DRC withdrew the proceedings against Burundi and Rwanda because neither of these two countries had accepted the
compulsory jurisdiction of the ICJ. Id. Nevertheless, the Dem. Rep. Congo v. Uganda case continued. See generally Armed
Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J..
15
Mollel, supra note 8, at 18.
16
Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. P 207.
17
Id. PP 225-57.
18
Id. P 221.
19
Id. PP 259-60.
20
Rep. of the Int’l Law Comm’n, 53rd Sess., Apr. 23-June 1, July 2-Aug. 10, 2001, art. 17, U.N. Doc. A/56/10; GAOR, 56th Sess.,
Supp. No. 10 (2001) [hereinafter Report of the ILC].
21
Robert McCorquodale & Penelope Simons, Responsibility Beyond Borders: State Responsibility for Extraterritorial Violations by
Corporations of International Human Rights Law, 70 MOD. L. REV. 598, 602 (2007).
22
Vassilis P. Tzevelekos, Reconstructing the Effective Control Criterion in Extraterritorial Human Rights Breaches: Direct
Attribution of Wrongfulness, Due Diligence, and Concurrent Responsibility, 36 MICH. J. INT’L L. 129, 131 (2014).
23
International Covenant on Civil and Political Rights art. 2 P 1, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter the ICCPR].
24
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. Doc.
A/RES/39/46 (Dec. 10, 1984) [hereinafter Convention Against Torture]. “Each State Party shall take effective legislative,
administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” Id. art. 2, P 1.
25
Convention on the Rights of the Child, G.A. Res. 44/25, U.N. Doc. A/RES/44/25 (Nov. 20, 1989).
States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without
discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion,
political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
Id. art. 2, P 1.
26
Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221 (entered into force
Sept. 3, 1953) [[hereinafter European Convention of Human Rights]. “The High Contracting Parties shall secure to everyone
within their jurisdiction the rights and freedoms defined in Section I of this Convention.” Id. art. 1.
27
Organization of American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123
[hereinafter American Convention on Human Rights].

The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons
subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race,
color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social
condition.
Id. art. 1, P 1.
28
Like the International Covenant on Economic, Social and Cultural Rights (ICESCR), the African Charter on Human and People’s
Rights (ACHPR) does not have any explicit reference on the State’s extraterritorial application of human rights. See OLIVIER DE
SCHUTTER, INTERNATIONAL HUMAN RIGHTS LAW: CASES, MATERIALS, COMMENTARY 124 (2010). According to
Olivier De Schutter, such a silence, of the ICESCR and the ACHPR, on the notion of territorial or extraterritorial application of
human rights may imply that the States have obligations to apply human rights “irrespectively of the place where the alleged
violation takes place.” Id.
29
See ICCPR, supra note 23, art. 2, para. 1 (emphasis added); European Convention of Human Rights, supra note 26, art. 1;
American Convention on Human Rights, supra note 27, art. 1, para. 1.
30
Harold Hongju Koh, Legal Adviser, U.S. Dep’t of State, Memorandum Opinion on the Geographic Scope of the International
Covenant on Civil and Political Rights 1 (Oct. 19, 2010), https://www.documentcloud.org/documents/1053853-state-department-
iccpr-memo.html [hereinafter U.S. Dep’t of State].
31
Hum. Rts. Comm., Consideration of Reports Submitted by State Parties Under Article 40 of the Covenant, Third Periodic Reports
of States Parties Due in 2003: United States of America, Annex I, U.N. Doc. CCPR/C/USA/3 (Nov. 28, 2005) (emphasis in
original); Hongju Koh, supra note 30, at 1-2.
32
Hongju Koh, supra note 30, at 2.
33
34
Id.
35
DE SCHUTTER, supra note 28, at 148; see also RUDOLF BERNHARDT & PETER MACALISTER-SMITH,
ENCYCLOPAEDIA OF PUBLIC INTERNATIONAL LAW 55-59 (1997); IAN BROWNLIE, PRINCIPLES OF PUBLIC
INTERNATIONAL LAW 287-314 (6th ed. 1998); ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL
LAW AND HOW WE USE IT (Oxford Univ. Press 1995); NGUYEN QUOC DINH, DROIT INTERNATIONAL PUBLIC 500
(6th ed. 1999).
36
DE SCHUTTER, supra note 28, at 148.
37
Id.
38
Id.

39
Hugh King, The Extraterritorial Human Rights Obligations of States, 9(4) HUM. RTS. L. REV. 521, 528 (2009).
40
See Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. P 213.
41
Id. P 52.
42
Id.
43
Id.
More pertinently, the Court draws attention to the fact that the consent that had been given to Uganda to place its forces in the
DRC, and to engage in military operations, was not an open-ended consent. The DRC accepted that Uganda could act, or assist in
acting, against rebels on the eastern border and in particular to stop them operating across the common border. Even had consent to
the Ugandan military presence extended much beyond the end of July 1998, the parameters of that consent, in terms of geographic
location and objectives, would have remained thus restricted.
Id.
In the event, the issue of withdrawal of consent by the DRC, and that of expansion by Uganda of the scope and nature of its
activities, went hand in hand. The Court observes that at the Victoria Falls Summit the DRC accused Rwanda and Uganda of
invading its territory. Thus, it appears evident to the Court that, whatever interpretation may be given to President Kabila’s
statement of 28 July 1998, any earlier consent by the DRC to the presence of Ugandan troops on its territory had at the latest been
withdrawn by 8 August 1998, i.e. the closing date of the Victoria Falls Summit.
Id. P 53.
44
Id. P 217. See also McCorquodale & Simons, supra note 21, at 605.
45
Legal Consequences of the Construction of a Wall, supra note 4, PP 107-08. The ICJ held similar position in its Advisory Opinion
on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory:
It remains to be determined whether the two international Covenants and the Convention on the Rights of the Child are applicable
only on the territories of the States parties thereto or whether they are also applicable outside those territories and, if so, in what
circumstances.
Id. P 107.
The scope of application of the International Covenant on Civil and Political Rights is defined by Article 2, paragraph 1, thereof,
which provides: ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory
and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’
Id. P 108.
This provision can be interpreted as covering only individuals who are both present within a State’s territory and subject to that
State’s jurisdiction. It can also be construed as covering both individuals present within a State’s territory and those outside that
territory but subject to that State’s jurisdiction.
Id.
46
The Nature of the General Legal Obligation, supra note 6, P 10.
47
Sergio Euben Lopez Burgos, supra note 4.
Article 2(1) of the Covenant places an obligation upon a State party to respect and to ensure rights ‘to all individuals within its

territory and subject to its jurisdiction,’ but [it] does not imply that the State party concerned cannot be held accountable for
violations of rights under the Covenant which its agents commit upon the territory of another State, whether with the acquiescence
of the Government of that State or in opposition to it.
Id. P 12.3
48
Id.
49
U.S. Dep’t of State , supra note 30, at 4; see also Peter Margulies, Extraterritoriality and Human Rights: Time for a Change in the
U.S. View?, LAWFARE BLOG (Mar. 8, 2014, 8:11 AM), https://www.lawfareblog.com/extraterritoriality-and-human-rights-time-
change-us-view.
50
Issa, App. No. 31821/96, Eur. Ct. H.R. P 71.
51
Id. (emphasis added).
52
See generally Velasquez Rodriguez, Inter-Am. Ct. H.R. (ser. C) No. 4.
This conclusion is independent of whether the organ or official has contravened provisions of internal law or overstepped the limits
of his authority: under international law a State is responsible for the acts of its agents undertaken in their official capacity and for
their omissions, even when those agents act outside the sphere of their authority or violate internal law.
Id. P 170.
53
Dem. Rep. Congo v. Burundi, Rwanda and Uganda, supra note 4, PP 69-89.
54
McCorquodale & Simons, supra note 21, at 605.
55
See id.
56
See Legal Consequences of the Construction of a Wall, supra note 4, PP 107-08; Issa,App. No.31821/96, Eur. Ct. H.R. P 71.;
Velasquez Rodriguez, Inter-Am. Ct. H.R. (ser. C) No. 4 P 170; Dem. Rep. Congo v. Burundi, Rwanda and Uganda, supra note 4, PP
69-89.
57
Report of the ILC, supra note 20, art. 35.
58
Id.
59
Id. See also German Settlers in Poland, Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 6, at 22 (Sept. 10).
60
Report of the ILC, supra note 20, art. 4.
1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises
legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its
character as an organ of the central Government or of a territorial unit of the State.

2. An organ includes any person or entity which has that status in accordance with the internal law of the State.
Id.
61
Armed Activities on the Territory of the Congo, Dem. Rep. Congo v. Uganda, 2005 I.C.J. P 213 (2005).
62
Id.
63
Id.
64
Id.
65
Id. P 160.
66
Id.
67
Antonio Cassese, The Nicaragua and Tadic Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia, 18 EUR. J. INT’L
L. 649, 652 (2007).
68
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. 14, P 84 (June); see also
Cassese, supra note 67, at 652.
69
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. PP 105-06; see also Cassese, supra note
67, at 652.
70
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. P 86.
Although it is not proved that any United States military personnel took a direct part in the operations, agents of the United States
participated in the planning, direction, support and execution of the operations. The execution was the task rather of the ‘UCLAs’,
while United States nationals participated in the planning, direction and support. The imputability to the United States of these
attacks appears therefore to the Court to be established.
Id.
71
Id. P 115.
72
73
Id. See also Report of the ILC, supra note 20, art.7.
The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be
considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its
authority or contravenes instructions.
Id. The conduct of the State’s agents, which can be attributable to the State, can consist of active conducts (actions) or inactive
conducts (omissions). See id. Under international law, there is no difference between the two kinds of conduct in terms of being

attributable to the State. See id. There are cases where States were held responsible for the actions or omissions or both actions and
omissions of their organs. See JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE
RESPONSIBILITY: INTRODUCTION, TEXT AND COMMENTARIES 82 (2002). In the Corfu Channel case, ICJ held that “it
was a sufficient basis for Albanian responsibility that it knew, or must have known, of the presence of the mines in its territorial
waters and did nothing to warn third States of their presence.” Id. See also Report of the ILC, supra note 20, art. 35. In the United
States Diplomatic and Consular Staff in Tehran case, the ICJ held Iran responsible for the failure of its organ (Iran government) to
take appropriate steps in circumstances that required that such steps be taken. See United States Diplomatic and Consular Staff in
Tehran (U.S. v. Iran), Judgment, 1980 I.C.J. 3 PP 63, 67 (May 24). In the DRC v. Uganda case, the ICJ attributed the responsibility
to Uganda for both the actions and omissions, i.e., inactions, of its organs by holding that: “Uganda’s responsibility is engaged both
for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of human
rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their
own account.” Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. P 179.
74
Dem. Rep. Congo v. Burundi, Rwanda and Uganda, supra note 4, P 69.
75
Id.
76
Loizidou v. Turkey, App. No. 15318/89, 23 Eur. Ct. H.R. (1996).
77
Id. P 52.
78
Velasquez Rodriguez, Inter-Am. Ct. H.R. (ser. C) No. 4, P 170.
79
80
Id.
81
Id.
The Court, having established that the conduct of the UPDF and of the officers and soldiers of the UPDF is attributable to Uganda,
must now examine whether this conduct constitutes a breach of Uganda’s international obligations. In this regard, the Court needs
to determine the rules and principles of international human rights law and international humanitarian law which are relevant for
this purpose.
Id. Report of the ILC, supra note 20, art. 2 para. 9. According to the International Law Commission, there should not be an
exception to the principle elaborated in Article 2 of the Drafts Articles (State responsibility for internationally wrongdoing acts
consists of: State attributable responsibility for its organs’ conducts and Breach of international obligations by the State’s organs
conducts). Id.
The question is whether those two necessary conditions are also sufficient. It is sometimes said that international responsibility is
not engaged by conduct of a State in disregard of its obligations unless some further element exists, in particular, “damage” to
another State. But whether such elements are required depends on the content of the primary obligation, and there is no general rule
in this respect.
Id.
82
Factory at Chorzow (Ger. v. Pol.), 1927 P.C.I.J. (ser. A) No. 9, at 18 (July 26).

83
Phosphates in Morocco (It. v. Fr.), 1938 P.C.I.J. (ser. A/B) No. 74, at 28 (June 14).
84
Dem. Rep. Congo v. Burundi, Rwanda and Uganda, supra note 4, P 69.
85
Id. P 68.
86
Id. P 72.
87
Id.
88
King, supra note 39, at 528; see also DE SCHUTTER, supra note 28, at 125.
89
See Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. P 172; see also Dem. Rep. Congo v.
Burundi, Rwanda and Uganda, supra note 4, PP 72, 76-77.
90
In DRC v. Burundi, Rwanda and Uganda, the African Commission has only disapproved the occupation of the DRC territory
without defining occupation of territory. See Dem. Rep. Congo v. Burundi, Rwanda and Uganda, supra note 4, PP 72, 76-77. It also
failed to describe its criteria of assessment to ascertain that the respondent States were in fact occupying powers. See id. Equally,
the African Commission recognized that the respondent States had effective control of some parts of the DRC territory, but it did
not elaborate on what constituted effective control. See id. P 76. “The [[African] Commission therefore disapproves of the
occupation of the complainant’s territory by the armed forces of the Respondent forces and finds it impermissible, even in the face
of their argument of being in the Complainant’s territory in order to safeguard their national interests....” Id.
It bears repeating that the [African] Commission finds the conduct of the Respondent States in occupying territories of the
Complainant State to be a flagrant violation of the rights of the peoples of the Democratic Republic of Congo to their
unquestionable and inalienable right to self-determination provided for by Article 20 of the African Charter.
Id. P 77. “[D]uring the period when the armies of the Respondent States were in effective control over parts of the territory of the
Complainant State, there were lootings of the natural resources of the Complainant State.” Id. P 91.
91
92
Id. P 173.
93
Legal Consequences of the Construction of a Wall, supra note 4, P 78.
94
95
Id. PP 173-74.
96
Id. PP 173-79.
97
Id.

98
Id. P 178.
99
Id. P 178.
100
101
Id. P 177.
102
Id.
103
Id.
104
Id.
105
Id.
106
Droege, supra note 3, at 328; see also Cyprus, App. No. 25781/94, Eur. Ct. H.R. P77.
107
René Värk, State Responsibility for Private Armed Groups in the Context of Terrorism, XI JURIDICA INT’L 184, 189 (2006).
108
See id.
109
110
See Cassese, supra note 67, at 654.
111
112
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), P 115.
113
See Prosecutor v. Tadic, Case No. IT-94-I-A, Judgment, P 117 (Int’l Crim. Trib. for Former Yugoslavia Appeals Chamber July 15,
1999); see also Värk, supra note 107, at 189.
114
Tadic, Case No. IT-94-I-A, P 117.
115
See supra note 107 and accompanying text.

116
Tadic, Case No. IT-94-I-A, P 145; Värk, supra note 107, at 189.
117
Värk, supra note 107, at 189.
118
Tadic, Case No. IT-94-I-A, P 117.
119
Id.
120
Id.
121
JEAN PICTET, HUMANITARIAN LAW AND THE PROTECTION OF WAR VICTIMS 15 (1975).
122
Michael J. Dennis, AGORA: ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory: Application of
Human Rights Treaties Extraterritoriality in Times of Armed Conflict and Military Occupation, 99 AM. J. INT’L. L. 119, 119
(2005).
123
Id. at 119-20.
124
William A. Schabas, Special Issue: Parallel Applicability of International Humanitarian Law and International Human Rights
Law: Lex Specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the
Conundrum of Jus ad Bellum, 40 ISR. L. REV. 592, 597 (2007).
125
John Cerone, Jurisdiction and Power: The Intersection of Human Rights Law and the Law of Non-International Armed Conflict in
an Extraterritorial Context, 40 ISR. L. REV. 72, 76 (2007); see also Schabas, supra note 124, at 593.
126
See PICTET, supra note 121, at 15; see also Dennis, supra note 122, at 119-20.
127
U.N. Comm’n on Human Rights Res. 2003/84, Situation of Human Rights in Iraq, E/CN.4/RES/2003/84, P 2 (Apr. 25, 2003).
128
The U.N. Commission on Human Rights has:
condemn[ed] the Iraqi authorities and occupying forces for their grave violations of human rights against the Kuwaiti people and
nationals of other States and in particular the acts of torture, arbitrary arrests, summary executions and disappearances in violation
of the Charter of the United Nations, the International Covenants on Human Rights, and other relevant legal instruments.
U.N. Comm’n on Human Rights Res. 1991/67, Situation of Human Rights in Kuwait under Iraqi Occupation,
E/CN.4/RES/1991/67, P 1 (Mar. 6, 1991).
129
Dietrich Schindler, Human Rights and Humanitarian Law: Interrelationship of the Laws, 31 AM. U. L. REV. 935, 941-42 (1982);
Dennis, see supra note 122, at 120.
130
See Human Rights Comm., 72nd Sess., CCPR General Comment No. 29: Article 4: Derogations During a State of Emergency, P
10, U.N. Doc. CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001).

131
See Schindler, supra note 129, at 938.
132
133
Id. P 215.
134
Id. P 216.
135
Legal Consequences of the Construction of a Wall, supra note 4, P 106; see also Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, 1996 I.C.J. 226, P 25 (July 8).
The Court observes that the protection of the International Covenant of Civil and Political Rights does not cease in times of war,
except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national
emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of
one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the
applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus
whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life
contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced
from the terms of the Covenant itself.
Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. P 25.
136
Dem. Rep. Congo v. Burundi, Rwanda and Uganda, supra note 4, PP 69-70. Other regional human rights bodies have also reached
the same conclusion, including the European Court of Human Rights (ECtHR) and Inter-American Court of Human Rights
(IACtHR). For instance, in Juan Carlos Abella v. Argentina, the IACtHR noted:
International humanitarian law generally does not apply in peacetime, and its fundamental purpose is to place restraints on the
conduct of warfare in order to diminish the effects of hostilities. It is understandable therefore that the provisions of conventional
and customary humanitarian law generally afford victims of armed conflicts greater or more specific protections than do the more
generally phrased guarantees in the American Convention and other human rights instruments.
It is, moreover, during situations of internal armed conflict that these two branches of international law most converge and
reinforce each other.
Juan Carlos Abella v. Argentina, Case 11.137, Inter-Am. C. H.R., Report No. 55/97, OEA/Ser.L/V/II.95, doc. 7 rev. PP 159-160
(1997). The ECtHR applied the European Convention on Human Rights to the conflict in the Russian Federation in the Isayeva v.
Russia case. See Isayeva v. Russia, App. No. 57950/00, Eur. H.R., PP 195-200 (2005).
137
ICCPR, supra note 23, art. 4.
1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States
Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent
strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations
under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social
origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States
Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from
which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same
intermediary, on the date on which it terminates such derogation.

Id.
138
Id. art. 4, P 1.
139
European Convention of Human Rights, supra note 26, art. 15.
140
American Convention on Human Rights, supra note 27, art. 27.
141
Dem. Rep. Congo v. Burundi, Rwanda and Uganda, supra note 4, P 65. See also Media Rights Agenda v. Nigeria, Afr. Comm’n
H.R., Comm. Nos. 105/93, 128/94, 130/94 and 152/96, PP 67-68 (1998). “[T]he African Charter does not contain a derogation
clause. Therefore limitations on the rights and freedoms enshrined in the Charter cannot be justified by emergencies or special
circumstances. The only legitimate reasons for limitations to the rights and freedoms of the African Charter are found in Article
27.2....” Id. PP 67-68.
142
See ICCPR, supra note 23, art. 4, P 3; European Convention of Human Rights, supra note 26, art. 15, P 3; American Convention on
Human Rights, supra note 27, art. 27, P 3.
143
Droege, supra note 3, at 319.
144
Isayeva v. Russia, App. No. 57950/00, Eur. H.R., P 191.
145
Id.
146
147
Schabas, supra note 124, at 597.
148
Legal Consequences of the Construction of a Wall, supra note 4, P 106.
149
Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. P 216; see also Dem. Rep. Congo v.
Burundi, Rwanda and Uganda, supra note 4, PP 64, 70, 78.
150
151
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International
Armed Conflicts (Protocol I), art. 51, P 5(b), June 8, 1977,1125 U.N.T.S. 3 (entered into force Dec. 7 1978). “An attack which may
be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which
would be excessive in relation to the concrete and direct military advantage anticipated.” Id. See also Schabas, supra note 125, at
604.

152
See ICCPR, supra note 23, art. 6; see also European Convention of Human Rights, supra note 26, art. 2; American Convention on
Human Rights, supra note 27, art. 4. In Isayeva v. Russia, the European Court of Human Rights ruled that the protection of the
right to life “covers not only intentional killing but also the situations in which it is permitted to ‘use force’ which may result, as an
unintended outcome, in the deprivation of life.” Isayeva v. Russia, App. No. 57950/00, Eur. H.R., P 173.
153
154
Id. at 598.
155
Id.
39 SFKTLR 329
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EXTRATERRITORIAL RESPONSIBILITY OF STATES FOR..., 39 Suffolk Transnat’l L....

39 Suffolk Transnat’l L. Rev. 329

Suffolk Transnational Law Review

Copyright (c) 2016 Suffolk University; Roger-Claude Liwanga

EXTRATERRITORIAL RESPONSIBILITY OF STATES FOR HUMAN

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1

II. HISTORICAL BACKGROUND OF THE DRC ARMED CONFLICT CASE

III. DOCTRINE OF STATE EXTRATERRITORIAL RESPONSIBILITY FOR HUMAN RIGHTS VIOLATIONS

A. Unpacking the Concept of State Extraterritorial Responsibility

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IV. APPLICABLE LAWS FOR STATE’S EXTRATERRITORIAL VIOLATIONS OF INTERNATIONAL

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A. Non-Derogability of Human Rights

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B. Complementary Relationship Between Human Rights Law and Humanitarian Law

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