Robert Dufresne

The International Court of Justice’s decision in the Armed Activities case is significant for its treatment of the claims that some of the resource exploitation that took place during the conflict in the DRC was illegal. This article argues that the Court’s approach is characterized by a commitment to doctrinal traditionalism, which succeeds in qualifying part of pendente bello resource exploitation as illegal, but which arguably sometimes leaves too much of it out of the sphere of unlawfulness. Based on the classical categories and doctrinal apparatus of international law, the Court defined a range of resource exploitation practices, by state officials as well as by private actors, as in some circumstances engaging a state’s responsibility. This approach is constructed on the basis of two branches of international law that provide the primary obligations, i.e. the jus in bello and the law of occupation, made operative through the mechanism of state responsibility. However, the Court refused to uphold the innovative claim that Uganda violated the DRC’s sovereignty over its resources.
For one concerned with resource-fueled conflicts, the Court’s judgment provides only a partial legal appraisal of a larger problématique. This article argues that some of the most interesting, difficult, and pressing questions remain unaddressed in the judgement, notably the lawfulness of pendente bello resource exploitation by non-state actors and the forms of responsibility and sanctions that the contravention to existing norms can entail. The article also suggests directions that legal policy could take on such issues.