Thread by @mabecker17

A few points of note on the #ICJ’s order deciding to appoint experts on the question of #reparations in #DRC v #Uganda, which is available here: icj-cij.org/files/case-rel… 1/19

Recall that in its 2005(!) judgment, the Court found that Uganda bore responsibility for unlawful use of force, unlawful intervention, atrocities inflicted upon the Congolese that violated IHRL and IHL, and the unlawful exploitation of natural resources. #ArmedActivities 2/19

For its part, the DRC bore responsibility for attacks on Ugandan diplomatic premises and personnel and for other conduct in breach of #VCDR obligations (but this will not be the subject of the expert opinion). 3/19

The DRC and Uganda have ostensibly been negotiating a financial settlement for years, taking into account each party’s obligation to make reparation to the other. When this failed, the DRC asked the Court in 2015 to reopen the proceedings to decide the reparations question. 4/19

The parties spent over two years briefing the Court. A hearing was scheduled for March 2019, then postponed twice at the parties’ request as they tried to reach an agreement. When negotiations stalled, the Court decided in April 2020 to schedule a hearing for early 2021. 5/19

In July 2020, the Court decided that some of the estimates and figures submitted by DRC raised questions 'of a technical nature' that merited expert advice & that it would proceed under Article 50 of the Statute and Article 67 of the Rules to commission an expert opinion. 6/19

The expert opinion will address three heads of damage: (a) the extent of loss of life on DRC territory and compensation due; (2) loss of natural resources and its valuation; and (3) property damage by Ugandan forces and its valuation. Uganda’s own claims are not covered. 7/19

Uganda has objected to the Court’s proposal, arguing that it would relieve the DRC of having to prove its claims, and that there is no evidence for the experts to assess. Unsurprisingly, the DRC favoured the Court’s idea. 8/19

Note that Judge Sebutinde (from Uganda) wrote separately to object. In her view, the case doesn’t raise complex issues that require knowledge ‘outside the realm of normal judicial expertise’. Her opinion suggests a pretty narrow view of what constitutes technical knowledge. 9/19

The Court’s Order reiterates that arranging for the expert opinion does not prejudge the question of reparations and that the parties will have the chance to adduce and challenge evidence and examine the experts during an oral hearing. That should be very interesting. 10/19

The opinion will be entrusted to four independent experts (the number may be an effort to promote consensus). It remains unclear who these individual experts will be or what precise type of expertise the Court needs or seeks. The Court will hear from the parties on this. 11/19

The terms of reference pose specific questions: How many civilian deaths in DRC were caused by the armed conflict? What was ‘scale of compensation’ due for an individual death based on ‘prevailing practice’ in the DRC? One might ask why that should be the benchmark. 12/19

Next question: What quantity of natural resources (gold, diamond, timber, etc) was unlawfully exploited and what value should be assigned to the harm suffered by the DRC? This undoubtedly raises difficult questions, including what valuation methodology to adopt & apply. 13/19

Another question: What number and type of properties (homes, schools, hospitals) were damaged or destroyed by Ugandan forces in DRC and what is the approximate cost of rebuilding? Not clear if this means the cost now or then. 14/19

The Court directs the experts to address the quantification questions (how many deaths, how much gold) based on the case file, including UN reports mentioned in the 2005 judgment. Presumably, this means the experts cannot engage in additional fact-finding on those points. 15/19

In principle, this should address the concerns raised by Uganda & Judge Sebutinde that the Court is helping the DRC to meet its burden. Are the experts implicitly being asked to evaluate the DRC’s own counting methodology? This could justify outside expertise in my view. 16/19

In terms of valuation questions, on the other hand, the terms of reference seem to leave it open to the experts to look outside the case file (although they would presumably be addressing the parties’ valuation arguments). Compare Corfu Channel. 17/19

In sum, this is a fascinating #ICJ development. The parties would be well advised to recruit their own experts who can weigh in on the methodological choices of the Court’s expert panel, including where estimates and valuations may rely on stated and unstated assumptions. 18/19

The validity of objections by Uganda/J Sebutinde cannot really be assessed until DRC's arguments & calculations are made public. But, overall, the Court's approach may set an important precedent in how the ICJ & other courts deal with #reparation for mass atrocity, full stop. END

As @danielcpeat rightly points out, the Court's order also refers to publicly available documents, which suggests that there is scope for a degree of fact-finding by the experts on these questions.