Philippe Tunamsifu Shirambere, International Humanitarian Law violations in the armed conflict in eastern part of DR Congo: the case of the National Congress for the Defense of People.
International Humanitarian Law violations in the armed conflict in eastern part of DR Congo: the case of the National Congress for the Defense of People. Philippe Tunamsifu Shirambere * Introduction More than six decades since the adoption of the Geneva Conventions of 1949, mankind has experienced an alarming number of armed conflicts affecting almost every continent. During this time, the four Geneva Conventions and their Additional Protocols of 1977 have provided legal protection to people not or no longer participating directly in hostilities (the wounded, sick and shipwrecked, persons deprived of their liberty for reasons related to an armed conflict and civilians). Even so, there have been numerous violations of these treaties, resulting in suffering and death which could have been avoided if International Humanitarian Law (IHL) was better respected1. For more than two decades, the African Great Lakes Region has been characterized by intense political violence which has resulted in various violations of serious international crimes including genocide, crimes against humanity and war crimes. The Democratic Republic of Congo (DRC), former Republic of Zaïre, located in Central Africa, is the second largest country in Africa by area after Algeria. After 32 years of dictatorship of Mobutu’s presidency (1965-1997), the country entered into various internal armed conflicts. Indeed, the North-Kivu situated on the DRC’s border with Uganda and Rwanda, where armed conflicts began, is among the most strategic area of the DRC’s provinces, whose security concerns, as well as economic and political interests, have twice tipped the DRC into disastrous armed conflicts since 1996. It is a Province known for its biodiversity and in which there are various natural resources among them Coltan which is a rare mineral used in the manufacture of mobile phones. This article will focus on the third armed conflict (2004-2009) under the leadership of General Nkunda and Colonel Mutebusi’s rebellions. The presentation or article begins with a brief overview of the preceding Congolese conflicts in order to set the background for the
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Chef de Travaux (Lecturer) à l’Université Libre des Pays des Grands Lacs « ULPGL-Goma » Honours in Public International Law from ULPGL-Goma MA in International Law and the Settlement of Disputes From the UN mandated University for Peace/Costa Rica 1 Henckaerts Jean-Marie, “Study on customary international humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict”, pp. 175-176, in International Review of the Red Cross. Retrieved December 17, 2010 from http://www.icrc.org/eng/assets/files/other/icrc_002_0860.pdf
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Philippe Tunamsifu Shirambere, International Humanitarian Law violations in the armed conflict in eastern part of DR Congo: the case of the National Congress for the Defense of People.
third conflict. The article will then discuss the violations of international humanitarian law during the third conflict making a case for the need to prosecute perpetrators. Overview of the Congolese Conflicts For more than a decade (1996-2009), the Democratic Republic of Congo has gone through three armed conflicts in which the neighboring countries were involved. 2 The first conflict began in the eastern part of the former Republic of Zaïre in 1996 with the Alliance of Democratic Forces for the Liberation of Congo-Zaire (AFDL). The AFDL was a coalition movement created in October 1996 that successfully overthrew the government of Mobutu in 1997 in a military coup backed by the neighboring countries of Burundi, Angola, Rwanda, and Uganda. In eight months, October 1996-May 1997, the AFDL took over the country. Laurent-Désiré Kabila, spokesperson for the coalition, came into power on 17 May 1997. He changed the country’s name to the Democratic Republic of Congo while the President Mobutu fled to Morocco. In July 1998, President Laurent-Désiré Kabila decided to withdrawal the foreign armies from DRC. The Rwandan and Ugandan Armies opposed this measure and consequently, in August 1998, they turned against him and backed a new rebellion. This was the beginning of the second conflict army with two main rebel’s movements. The Congolese Rally for Democracy (CRD) occupying the Kivu provinces with the support of Rwanda, and the Movement for the Liberation of Congo (MLC) the Equateur province supported by Uganda. The main motive to oppose the government for the CDR and MLC was that the President Kabila failed to reconcile people by introducing more people of his indigenous tribe in the government, while the claims of the continuing presence of Rwandan and Ugandan forces in DRC was justified by their security. However, a report of the UN Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth in the Democratic Republic of Congo (April 2001) 3 findings that the conflict in the DRC has become mainly about access, control and trade of five key mineral resources: coltan, diamonds, copper, cobalt and gold. The wealth of the country is appealing and hard to resist in the context of
Are the case of the interference in the internal affairs and the illegal exploitation of Congolese natural resources and acts of looting, etc. 3 UN SC, (2001), Letter dated 12 April 2001 from the Secretary-General to the President of the Security Council: 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, p. 41. Retrieved December 29, 2010 from http://www.globalsecurity.org/military/library/report/2001/357e.pdf 2
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Philippe Tunamsifu Shirambere, International Humanitarian Law violations in the armed conflict in eastern part of DR Congo: the case of the National Congress for the Defense of People.
lawlessness and the weakness of the central authority. Exploitation of the natural resources of the Democratic Republic of the Congo by foreign armies has become systematic and systemic. Plundering, looting and racketeering and the constitution of criminal cartels are becoming commonplace in occupied territories. On the afternoon of January 16, 2001, President Kabila was shot to death by one of his bodyguard, Rashidi Kasereka 4, who was then killed before he left the president’s office. The killing was part of a failed coup attempt by rebel groups. Ten days after the assassination, Kabila’s son Joseph became the President of the Democratic Republic of Congo. During his reign, Joseph Kabila changed the policy and tried to negotiate peace with all parties and countries which were involved in conflicts. On 16 December 2002, a meeting was held in Pretoria (Republic of South Africa) where various elements/ groups and entities involved in the Inter-Congolese Dialogue (ICD) signed a Global and Inclusive Agreement on Transition in the Democratic Republic of Congo 5. The Parties to that Agreement having armed forces, agreed to combine their efforts and to safeguard the sovereignty and territorial integrity of the DRC. The Global and All Inclusive Accords of 2002, established the objective of an integrated national army, meant to include all the previously hostile forces. Unfortunately, Laurent Nkunda, who was one of the commanding officer of the Congolese Rally for Democracy, refused the offer to become a general under the new army because he would like to provide more protection to his indigenous tribe “Banyamulenge”. He got the support of several soldiers under his command. In 2004, Nkunda created his own movement, the National Congress for the Defense of People (CNDP) 6 and began to fight against the Transitional Government in June; which marked the beginning of the third armed conflict. The following section will discuss how the Nkundan rebellion was involved in grave breaches of the Geneva Convention and other violations of International Humanitarian Law in the eastern part of Democratic Republic of Congo.
Top 10 World Changing Assassination & Influential Deaths, (2009). Retrieved December 29, 2010 from http://www.listzblog.com/world_changing_assassinations_influential_deaths.html 5 Signatories of Inter-Congolese Dialogue, Global and Inclusive Agreement on Transition in the Democratic Republic of the Congo: Inter-Congolese Dialogue - Political negotiations on the peace process and on transition in the DRC, (2002). Retrieved November 29, 2010 from http://www.reliefweb.int/rw/rwb.nsf/db900SID/MHII-65G8B8?OpenDocument 6 The original name in french is Congrès National pour la Défense du Peuple « CNDP ». 4
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Philippe Tunamsifu Shirambere, International Humanitarian Law violations in the armed conflict in eastern part of DR Congo: the case of the National Congress for the Defense of People.
Conflict analysis under International Humanitarian Law Before the legal reasoning, the first point tries to analyze the facts while the third point shows the necessity to prosecute the perpetrators. Facts According to Amnesty International, 7 a serious confrontation occurred in Bukavu in late May year when Colonel Mutebutsi8 and combatants loyal to him took up arms against General Mbuza Mabe Commanding officer of the national Armies Forces of DRC in Bukavu; named “commandant region militaire du Sud-Kivu”. Mutebutsi’s force was immediately supported by General Laurent Nkunda. Mutebutsi and Nkunda’s forces embarked on a campaign of looting, raping of women and killing in the city. According to the United Nations Group of Experts investigating breaches of the DRC arms embargo, they were supported by the Rwandan government 9. Nkunda’s forces withdrew from Bukavu on 10 June 2004 and Mutebutsi’s withdrawals took him south of Bukavu and into Rwanda while they had just burned down the central market of Bukavu. Both sets of forces committed human rights abuses during their withdrawal. A MONUC investigation 10 which was done later, estimated military and civilian casualties in Bukavu to be more than 100, the majority being victims of troops belonging to Mutebutsi and Nkunda. In additional to the Bukavu crisis, the Institute for War and Peace Reporting wrote that, “We recorded war crimes and crimes against humanity such as targeted mass killings, sexual violence, [and] the destruction of economic infrastructures including the looting and burning of the Kadutu market in Bukavu 11.” Indeed, according to Human Rights Watch 12, during 2006 and 2007 soldiers of Laurent Nkunda’s forces had committed numerous rapes in North Kivu, as documented by local
AMNESTY INTERNATIONAL, Democratic Republic of Congo, North-Kivu: Civilians pay the price for political and military rivalry, 28 September 2005. Retrieved December 29, 2010 from http://asiapacific.amnesty.org/library/Index/ENGAFR620132005?open&of=ENG-RWA 8 Colonel Mutebusi is one of the former soldiers of the former rebellion Congolese Rally for Democracy who was integrates the National Army based in Bukavu town. Moreover, the General Nkund a and Colonel Mutebutsi belong to the same indigenous tribe (Banyamulenge or Tutsi), but the former is for the North Kivu while the latter is for the South Kivu province. 9 Jesinyou, Military integration and military crisis: civilians pay the price: The Bukavu crisis, (2006). Retrieved December 29, 2010 from http://jeyou.blogspot.com/2006/04/military-integration-and-military.html 10 Id. 11 INSTITUTE FOR WAR & PEACE REPORTING, Rebel General Insists on Amnesty Deal, (2008) reported by Jack Kahorha, Taylor Toeka and Lisa Clifford on 18 Mar 08. Retrieved December 29, 2010 from http://iwpr.net/fr/node/11322 12 Human Rights Watch, Renewed Crisis in North Kivu, (2007), p. 34. Retrieved December 29, 2010 from http://www.hrw.org/en/node/10625/section/8 7
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Philippe Tunamsifu Shirambere, International Humanitarian Law violations in the armed conflict in eastern part of DR Congo: the case of the National Congress for the Defense of People.
health centers, organizations that helped victims of sexual violence, and MONUC investigators. Therefore, according to MONUC (2007) as cited by Human Rights Watch 13, 40 percent of all human rights violations recorded by its human rights division throughout the country in the second half of 2006 were perpetrated by FARDC soldiers including summary executions, beatings and rape. On November 13, 2007, the Nkundan rebellion had targeted the camps of internally displaced persons. The governor of North Kivu Province, Julien Paluku, deplored the CNDP attack and had described it as an act of sabotage against civilian populations 14. Aya Shneerson, the head of the World Food Program in North and South Kivu Province said, "once again displaced people are getting re-displaced, fleeing for their lives, because they fear for their security 15". Recruitment of child soldiers was another violation of human rights that can also be pointed out in this case. According to Agence France-Presse, several testimonies confirmed that after a recruitment by force, children were undergoing military training and were sent to the frontline in the heart of the fighting, while others were used for var ious logistical tasks or as sex slaves16. In September 2008, a CNDP officer said to Syfia Grands Lacs17 that "we need more men, and for that we appeal to young people." Previously, in June 3rd, two children of between 14 and 16 years old were killed while they were running away from forced recruitment of CNDP in Masisi territory, more than 80 km west of Goma. Moreover, on Thursday November 6, 2008, the residence and commercial houses of one of the local people called “Nande” of Kiwanjan city were targeted by the Nkundan rebellion. The latter had looted, burnt 18 and killed civilians; the young people were increasingly targeted 19. According to the Red Cross, the provisional toll of the massacre in Kiwanja city was 186 dead 20.
Idem., pp. 42-43 Radio Okapi, Goma : l’attaque de Mugunga attribuée aux nkundistes, (2007). Retrieved December 29, 2010 from http://radiookapi.net/sans-categorie/2007/11/13/goma-l%E2%80%99attaque-de-mugunga-attribuee-auxnkundistes/ 15 Noel King, Renewed Fighting in Congo Displaces 25,000, (2007). Retrieved December 29, 2010 from http://www.globalsecurity.org/military/library/news/2007/11/mil-071113-voa03.htm 16 Agence France-Presse, Congo - De nombreux enfants soldats ou esclaves sexuels au Nord-Kivu, (2007). Retrieved December 29, 2010 from http://fr.excelafrica.com/showthread.php?t=6875 17 Patient Ndoole, Nord-Kivu : l’enrôlement des enfants soldats s’intensifie, 18-09-2008. Retrieved December 29, 2010 from http://www.syfia-grands-lacs.info/index.php5?view=articles&action=voir&idArticle=1128 18 It is the case of the Hotel GREFAMU of Mr. Mutsanga which was bombed 19 Rigobert Kanduki, Nkunda massacre des nande, (2008), Retrieved December 29, 2010 from http://www.benilubero.com/index.php?option=com_content&view=article&id=1227:nkunda-massacre-desnande-iwanja&catid=16:vie-nationale&Itemid=99 20 Id., Bilan du Massacre de Kiwanja: 186 morts, (2008), Retrieved December 29, 2010 from http://banacongo.afrikblog.com/archives/2008/11/10/11303224.html 13 14
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Philippe Tunamsifu Shirambere, International Humanitarian Law violations in the armed conflict in eastern part of DR Congo: the case of the National Congress for the Defense of People.
Legal reasoning Before focusing my attention to the facts mentioned above, it is better to establish the nature of the conflict which took place in the Eastern part of the Democratic Republic of Congo. Indeed, the conflict was between the Armies Forces of the Democratic Republic of Congo and the National Congress for the Defense of People of the General Nkunda. According to that, the nature of conflict was a Non-International Armed Conflict. The relevant humanitarian law instruments that regulated war conduct during internal armed conflict include: the violations of the Article 3 common to the Geneva Conventions of 1949, the four Geneva Convention relative to the protection of civilian persons in time of war and the Additional Protocol II will be more examined. Indeed, the aim of the Internationa l Humanitarian Law is to protect persons who are not or who are no longer taking part in hostilities. Thus, International Humanitarian Law bids the Armies Forces of the Democratic Republic of Congo as well as the National Congress for the Defense of People. As mentioned in Article 13 of the Additional Protocol II, civilians protected are: 1.
The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances.
2.
The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.
3.
Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities.
Unfortunately, Nkundan rebellion had been involved in the grave violation of International Humanitarian Law (IHL) under the following provisions: -
Sexual violence or rape as a weapon of war: Rape is prohibited by the article 4 paragraph 2(e) and article 27 of the fourth Geneva Convention. Consequently, Girls and women who had been raped often found it difficult to get married, and married women who were raped were often abandoned by their husbands.
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Acts of killing (murder) and torture of civilian population: are prohibited by the article 32 paragraph 1 of the fourth Geneva Convention.
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Destruction of economic infrastructures including looting and the attack of civilian camps: The Kadutu central market in Bukavu (South Kivu Province) and the Hotel
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Philippe Tunamsifu Shirambere, International Humanitarian Law violations in the armed conflict in eastern part of DR Congo: the case of the National Congress for the Defense of People.
Grefamu of Kiwanja (North Kivu Province) which were burnt are considered as civilian objects. By destroying them, Nkundan rebellion failed to protect the objects indispensable to the survival of the civilian population which is provided by the article 14 of the Protocol Additional II. It failed also to protect the cooperative organizations under article 53 of the fourth Geneva Convention. The attacks which targeted the Mugunga camps of internally displaced persons showed the deliberate intention not to distinguish between the civilian population and combatants and between civilian objects and military objectives as provided by the article 48 of the Protocol Additional I. They are further protected by the rules on the conduct of hostilities, including “the civilian population as such, as well as individual civilians, shall not be the object of attack” (art. 13 Add Prot II). It is clear that, the rebellion led indiscriminate attacks which are prohibited by the article 51 of the Protocol Additional I. -
Recruitment of child soldier: which is the violation to the children’s right to education and the right to express their views. By recruiting children, the rebellion failed under the article 77 of the Additional Protection I and the article 4 paragraph 3 (c) of the Additional Protocol II. Moreover, it is also the violation of the article 38 of the Convention on the Rights of the Child and article 71 of domestic law for the protection of child. 21
Necessity to prosecute The Democratic Republic of Congo is a State, party to the four Geneva Conventions which were ratified on 24.02.1961; to the Additional Protocol I ratified on 03.06.1982 and the Additional Protocol II ratified on 12.12.2002. It had ratified also the Rome Statute of the International Criminal Court of 17 July 1998 on 11.04.2002. Thus, the International crimes have been included in domestic legislation particularly in the Military Criminal Code 22. The latter has incorporated the Crime of Genocide (article 164) in the same words of definition of the Rome Statute of the International Criminal Court, the Crime against humanity (articles 165-172) with the death penalty of the perpetrators if the victim dead or if the acts cause serious harm to his/her body and the War crimes in the articles 173-175. Loi n°09/001 du 10 Janvier 2009 portant protection de l’enfant ; Journal Officiel de la République Démocratique du Congo, n° spécial du 12 Janvier 2009. 22 Loi n°024/2002 du 18 novembre 2002 portant Code pénal militaire ; Journal Officiel de la République Démocratique du Congo, n° spécial du 20 Mars 2003. 21
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Philippe Tunamsifu Shirambere, International Humanitarian Law violations in the armed conflict in eastern part of DR Congo: the case of the National Congress for the Defense of People.
Indeed, the Nkundan rebellion committed the crimes against humanity under the article 7 of the Rome Statute of the International Criminal Court by killing civilian population –murder(paragraph 1, a), torturing (paragraph 1, f) and raping girls and women (paragraph 1, g) and by conducting the direct attack against displaced camps of civilian population (paragraph 2, a). The Nkundan rebellion committed also the war crimes under the article 8 of the Rome Statute of the International Criminal Court by intentionally directing attacks against civilian objects like the displaced camps of Mugunga and the Kadutu central market in Bukavu (paragraph 2, b, ii), by bombarding buildings which are not military objectives like Hotel Grefamu (paragraph 2, b, v) and by looting them – pillage - (paragraph 2, b, xvi). Conclusion International humanitarian law protects a wide range of people and objects during armed conflict. The Geneva Conventions and their Additional Protocols protect the sick, wounded and shipwrecked not taking part in hostilities, prisoners of war and other detained persons, as well as civilians and civilian objects. Parties to a conflict are prohibited to target civilians and are required to take all feasible precautions to avoid attacks that result in civilian casualties. They are also required to avoid defensive measures that put civilians in danger. Civilians may not be used as protective shields or forcibly displaced. Unnecessary attacks on their means of livelihood such as farms, housing, transport and health facilities are forbidden. International Humanitarian Law also mentions specific groups among civilians such as women, who are protected from sexual abuse, and children, whose special needs must be taken into account by combatants 23. It is clear that the General Nkunda with his rebel movement the National Congress for the Defense of People and the Colonel Mutebusi violated t he International Humanitarian Law. They are both currently living in the Republic of Rwanda which is under the international obligation to extradite or prosecute them. We are very confident that they cannot be peace without justice especially for the most crimes under international. And then, because currently Rwanda and the DRC are working together to bring peace in the African Great Lakes Region, is very important to underling that victims of those crimes perpetrated by all warlords, in case of General Nkunda and Colonel Mutebutsi, needs justice. That is why the European Union has stated, that it “remains convinced that peace and justice are not contradictory aims. On the contrary, in our view lasting peace cannot be achieved without a ICRC, Persons protected under IHL, (2010). Retrieved December 29, 2010 from http://www.icrc.org/eng/war-and-law/protected-persons/overview-protected-persons.htm 23
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Philippe Tunamsifu Shirambere, International Humanitarian Law violations in the armed conflict in eastern part of DR Congo: the case of the National Congress for the Defense of People.
suitable response to calls for individuals to be held accountable for the most serious international crimes.”24 The end of impunity must coincide with the extradition of General Nkunda and Colonel Mutebutsi in DRC or their transferred to the International Criminal Court. According to that, I do believe that the Prosecution application for a warrant of arrest for Nkunda and Mutebutsi appears necessary at this stage because there are reasonable grounds to believe crimes have been committed under their command.
24
HRW (December 2010), Seductions of « Sequencing » : The Risks of Putting Justice Aside for Peace, p. 1. Retrieved May 25, 2011 from http://www.hrw.org/en/news/2011/03/18/seductions -sequencing
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