Conspicuous by Absence: Why Did the DRC Receive No Compensation for Deforestation at the ICJ?

[Dr Justine Bendel is a Marie Skłodowska-Curie Fellow at the University of Copenhagen.]

[This project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Skłodowska-Curie grant agreement No. 101028622.]

This post will look at the recent decision delivered by the International Court of Justice (ICJ) regarding the case entitled Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) from 9 February 2022 (hereafter 2022 Judgment on Reparations) from an environmental perspective. In this decision, the court not only awarded reparations for the immense and grave human harms, but also for some ‘environmental’ harms committed during the armed conflict between the DRC and Uganda. I will show that, despite the fact that the court had the opportunity to do so, it did not award compensation for deforestation that occurred during the hostilities.

The Dispute and Its Environmental Context: The Second Largest Forest in the World

The award on reparations comes 17 years after the court had decided on the merits of the case. The ICJ first decided this case in 2005, when it concluded that Uganda committed a series of grave and serious violations of international law when it engaged in military activities on the DRC’s territory for five years, from 1998 to 2003. In 2022, the court decided that Uganda must pay US$330 million as compensation for the harms suffered by the DRC, including the loss of civilian lives and members of the armed forces, injuries and mutilations, rape and sexual violence, the use of child soldiers, and the large scale displacement of people (para. XX).

In addition, some of the harms compensated concern natural resources. However, deforestation was not considered a specific harm warranting designated compensation, despite the fact that the hostilities took place in territory that is is home to the important Ituri rainforest. Indeed, the DRC contains the “second largest block of tropical forests in the world … and harbours approximately half of the continent’s rainforests”. It is important to know that the Ituri region has a very high tree cover (covering around 87% of Ituri in 2000), and is a region that is considered one of the most important wilderness areas left on Earth. This highlights the environmental relevance of the ICJ’s judgment, and therefore the consequences that this missed opportunity represents for the efforts to combat deforestation and to acknowledge the impacts of war on the natural environment.

In order to reach the final monetary figure in its award on reparations, the court had to categorise different types of damage, and for each type, decide on a specific amount of money to be allocated, grounded in sound scientific evidence. This created methodological and evidential issues for the court, and as a result, it appointed an expert to support it in this task (paras. 25-27).

However, before calculating how certain damages translate into a monetary value as compensation, the court had to decide what damages it would take into account. This decision was based on the 2005 judgment on the merits (hereafter 2005 Judgment on the Merits), and lists a series of violations, including “acts of looting, plundering and exploitation of Congolese natural resources” committed by the Ugandan armed forces and the lack of prevention of those acts while it was acting as an occupying power (para. 345 (4)). In some ways, this constrained the court in its reparations judgment, as the definitive account from 2005 did not specifically mention harms to the broader environment, beyond natural resources. However, given the developments of the jurisprudence since 2005, and because of the environmental importance of the location where the hostilities took place, the ICJ had the means and the reasons to decide otherwise.

The Framing of Deforestation as Environmental Damage

Based on the 2005 Judgment on the Merits, the court had to focus on specific harms done to Congolese natural resources during the five years of hostilities. The focus by the parties and by the court on the looting, plundering or exploitation of natural resources, excluding the broader notion of environmental harm, shows a strong emphasis on understanding the environment through its economic value and potential for human exploitation, and not for the sake of the environment as a final goal. As a result, the court does not take into account ecological damage to biodiversity, for instance.

However, the court was able to construct a slightly broader category of harm that included damage to flora and fauna from the 2005 judgment on the merits, despite it not being directly mentioned. The court understood that it needed to expand the definition of natural resources, but did not follow through with it. Indeed, the court later said that “the terms of reference provided to the expert by the Court did not include damage to fauna and damage to flora through deforestation and that the expert therefore made no findings with respect to those forms of damage to natural resources (beyond commercial trade in timber).” (para. 279). The only head of damage tackled by the court in 2022 is commercial timber, as an economic activity, and not as biodiversity loss.

This anthropocentric approach to deforestation is at odds with developments in international environmental and climate change law, with a prime example in the 2018 Judgment on Compensation in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), where the court stated that “compensation is due for damage caused to the environment, in and of itself.” (para. 41).  And the ICJ knew this, as it specifically referred to this judgment in the 2022 Judgment on Reparations (paras. 348-350). However, contrary to its previous jurisprudence, it dismissed the existence of damage to the rainforest.

Evidentiary and Methodological Issues

The ICJ provides for two main reasons why deforestation was not considered as a compensable harm. Firstly, the DRC could have been clearer by raising “separate claims with respect to environmental damage” (para. 345), and could have submitted more evidence of the harm resulting from deforestation (para. 350) to make sure the court could tackle environmental damage separately. Secondly, the court-appointed expert only interpreted “the DRC’s claim for damage due to ‘deforestation’ as referring to ‘timber production’” (para. 347), and the court did not question this decision.

Despite the fact that the DRC could have made a stronger case regarding deforestation, the role of the court-appointed expert became crucial in the decision to exclude reparations to the DRC for deforestation. Indeed, it seems that the main reason for excluding deforestation rests on the interpretation of the expert, Mr Nest. The court simply noted that “Mr Nest understood the DRC’s claim for damage due to ‘deforestation’ as referring to ‘timber production’” (para. 347). However, the expert’s interpretation contradicts the court’s own jurisprudence. The court had the opportunity to ask the expert to revise his interpretation of the DRC’s claim that damage resulting from “deforestation” should be compensated, as the terms of reference clearly state that “the Court reserves the right to put further questions to the experts if it thinks fit”, but chose not to do so. Moreover, as it is not bound solely to the expert’s report, it could have relied on other sources of evidence. If the DRC had submitted stronger evidence concerning the damage that deforestation made during the conflict, it could have been a way to force the court to engage with environmental harm due to deforestation.

A lot of literature has discussed the relationship between scientific experts and judges, wondering how to navigate the impacts of the experts on the final legal judgment (here, here and here for instance), and this case is an example in which the role of the experts went further than necessary into the realm of judging. The line is fine between assessing evidence and providing support in understanding complex scientific or historical facts, and judging. This line seems to have been crossed in this instance, forcing the court to contradict itself in the law, rather than asking for further evidence.

Timber Production as Part of the ‘Global Sums’ Allocated by the Court

As a result, only timber was considered as a head of damage to natural resources, understood in a purely commercial way. The DRC argued for a calculation of the damage based on “the commercial value of exports and taxes of a specific timber company, DARA-Forest” (para. 262). But this evidence was considered inconclusive by the court (para. 340), which decided instead to use the expert’s findings, which were inconclusive themselves. It found that the “calculations in relation to timber are based on less precise information”. As a result, “the amount of compensation should … be considerably lower than his estimate” (para. 344).

Since the amount of compensation could not be precisely ascertained, the court created a category of ‘global sums’ for harms that were committed but insufficiently evidenced. It also included damage to fauna, to which the Court found that significant damage occurred (para. 362). This category of damage is a hotchpotch one, covering all harms to which the court could not attribute a specific sum. It is arguably better for the court to assign a ‘global sum’ than no compensation at all, but as Desierto pointed out, this practice can be seen as reducing the gravity or extent of those harms. Moreover, the court does not explain how it agreed on the final ‘global sum’, making it difficult to understand what was taken into consideration and what was not.

In conclusion, the court had practical and theoretical challenges in this case. Indeed, the basis for compensating environmental harm was not straightforward in this instance. Monetising the value of harmed biodiversity is never easy, especially when the harm occurred such a long time before the evidence was assessed by the court. However, the court in this instance had the means to engage more deeply with this issue. Unfortunately, despite the fact that the Judgment on Compensation in Costa Rica v Nicaragua provided the court the theoretical foundations to compensate ecological harm, the court decided otherwise. This decision represents a missed opportunity for the ICJ to acknowledge and remedy the negative impacts of armed conflict on the natural environment, and in this case, the rainforest.