Extraterritorial responsibility of states for human rights violations under international jurisprudence: case study of DRC v. Uganda.

• Author: Liwanga, Roger-Claude

1. 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)

   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 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 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.

2. 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 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 Id's compulsory jurisdiction. (15) As a result, the DRC was forced to re-submit another 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?

3. DOCTRINE OF STATE EXTRATERRITORIAL RESPONSIBILITY FOR HUMAN RIGHTS VIOLATIONS

   1. 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 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)

      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?

   2. 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...