Philippe Tunamsifu Shirambere, Illegal Trafficking of natural resources by the UN peacekeepers in the Eastern Part of the DR Congo
Illegal trafficking of natural resources by the UN peacekeepers in the eastern part of the DR Congo Philippe Tunamsifu Shirambere* Introduction Since 1996, the Democratic Republic of Congo (DRC) has been the theater of armed conflicts in which were involved neighbor countries such as Rwanda and Uganda. In July 1998 when the President LD Kabila decided to withdrawal the foreign armies from the DRC, the Rwandan and Ugandan Armies backed a new rebellion against the government of Kabila started in the eastern provinces by three major groups.1 In consequence the conflict becomes the threat to the regional peace and security that demanded an urgent response by the parties to the conflict with the support from the international community. Thus, as provided by the article 24 of the UN Charter, on behalf of the UN’s Members States, the United Nations Security Council (UNSC) has the primary responsibility for the maintenance of international peace and security. According to that, as the UNSC was concerned by the situation in the eastern part of the DRC, it called for a ceasefire and the withdrawal of foreign forces, and urged states not to interfere in the country’s internal affairs. Following the signing of the Lusaka Ceasefire Agreement between the DRC and five regional States involved in the conflict (Angola, Namibia, Rwanda, Uganda and Zimbabwe), in July 1999 the Security Council established the United Nations Organization Mission in the DRC (Mission de l’Organisation des Nations Unies en République Démocratique du Congo, MONUC2) by its resolution 1279 of 30 November 1999.
Indeed, the tasks discharged by peacekeeping operations are the maintenance of ceasefires and separation of forces; preventive deployment; protection of humanitarian operations and *
Lecturer of law at the Faculty of Law, ULPGL Goma/ DRC, Honors in Public International Law at the ULPGL Goma/DRC, MA in International Law and the Settlement of Disputes, UPEACE/ Costa Rica 1 The 27 July decision of the President Kabila to send Commander James and his Rwandan comrades-in-arms back home, apparently to preempt a coup d’état, was the immediate cause of the rebellions that shook Goma and Kinshasa six days later. Read more G., Nzongola-Ntalaj|a, Op. Cit., p. 96 2 The MONUC is not the first international military intervention for peacekeeping and peace enforcement in the DRC. The first UN mission in the DRC was named ONUC (Opération des Nations Unies au Congo) from 1960 to 1964.
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implementation of a comprehensive peace settlement3. However, since the establishment of the UN Forces in the DRC, the blue-helmets have committed acts of gross misconduct. The relevance of this paper is to analyze the involvement of the UN peacekeepers in gold trading and possible provision of arms and ammunition, among others, in the eastern part of the DRC.
Thus, I wish to make it clear that this study is not meant to be exhaustive or complete. It try to brief the establishment and the mandate of the UN mission in the DRC; the involvement of peacekeepers in illegal trafficking of natural resources; and a legal analysis of the case of UN Employee Caught Smuggling Minerals.
Establishment and mandate of the UN mission in the DRC Through the UNSC resolution 1279 of 30 November 1999, the initial mandate of MONUC was the observation of the ceasefire and disengagement of forces and maintain liaison with all parties to the Ceasefire Agreement. Later in a series of resolutions, the Council expanded the mandate of MONUC to the supervision of the implementation of the Ceasefire Agreement and assigned multiple related additional tasks. In 2000, the Security Council adopted resolutions 1291 to expand MONUC’s mission. The mission was tasked with overseeing the Lusaka Ceasefire Agreement of 1999. The mandate was expanded in 2004 to include Chapter VII of the UN Charter, which enables the mission to use force to protect civilians. The mission was extended by Resolution 1925 in May 2010 and to reflect the new phase reached in the country and the mission’s name was changed to become the United Nations Organization Stabilization Mission in the Democratic Republic of Congo (MONUSCO).
Under Resolution 1925 (2012), the new mission was to use all necessary means to carry out its mandate relating, among other things, to the protection of civilians, humanitarian personnel and human rights defenders under imminent threat of physical violence and to support the Government of the DRC in its stabilization and peace consolidation efforts, and authorized to concentrate its military forces in eastern DRC, including a reserve force capable of redeploying
3
United Nations Department of Public Information, Basic Facts About the United Nations, New York, United Nations, 2000, p. 76
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rapidly elsewhere as needed. Recently, under the Resolution 2053 (2012), the UNSC extended the MONUSCO’s mandate to June 30, 2013.
Unfortunately, regarding the implementation of those resolutions, the protections of the civilian population have been far from the expectation because atrocities and human rights violations, mass rape were continue to be committed. However, peacekeepers and civilian staffs of MONUC/MONUSCO were involved in rape of young girls and women. 4 That is why the UN Assistant Secretary-General for peacekeeping operations, Mr Atul Khare, declared clearly to the UNSC that the UN failed to protect population.5 According to those allegations, the UN former Under Secretary General in charge of the Department of Peacekeeping Operations, Jean Marie Guehenno said that: "The fact that these things happened is a blot on us. It's awful. What is important is to get to the bottom of it and fight it and make sure that people who do that pay for what they have done". While the UN former SG Kofi Annan declared that "I am afraid there is clear evidence that acts of gross misconduct have taken place”.
However, raping girls was not the only misconduct of the UN peacekeepers in the DRC, they were also involved in illegal trafficking of natural resources.
Involvement of peacekeepers in illegal trafficking of natural resources The DRC located in Central Africa, is the second largest country in Africa by area after Algeria. It shares borders with nine other countries. It has economically enormous wealth in natural resources located in all the parts of the country. Due to its potentialities, the DRC has been envied by its neighboring countries as well as major powers regarding their strategic interest. That is why it is not an accident that since 1996 rebellions have took place in mineral-rich areas of the eastern provinces of North and South Kivu and Orientale. It is better also to mention that 4
For more, read P. Tunamsifu Shirambere, Tolérance zéro et cas d’abus sexuels commis par les casques bleus de la MONUC/ MONUSCO en RDC, in Montréal, N° 19 - 06/2012, http://www.congonova.org/revue/index.php?option=com_content&view=article&id=386:tolerance-zero-et-casdabus-sexuels-commis-par-les-casques-bleus-de-la-monuc-monusco-en-rdc&catid=55:articles-numero19&Itemid=171 5 Atul Khare, the UN Assistant Secretary-General for Peacekeeping acknowledged the failure of the UN by stating: “our actions were not adequate, resulting in unacceptable brutalization of the population of the villages in the area. We must do better.” ICRtoP, Crisis in the Democratic Republic of Congo. Retrieved 20 August 2011 from http://www.responsibilitytoprotect.org/index.php/crises/crisis-in-drc
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mineral resources have historically financed both local and foreign-armed groups in that areas since conflicts have started.
To address this issue, on 22 December 2008 through the Resolution 1856, the UNSC gave the MONUC a mandate to coordinate operations with the Armed Forces of the DRC (Forces Armées de la RDC, FARDC) […] to prevent the provision of support to illegal armed groups, including support derived from illicit economic activities; but also to use its monitoring and inspection capacities to curtail the provision of support to illegal armed groups derived from illicit trade in natural resources.6
Nevertheless, since the establishment of the UN mission in the DRC, the UN peacekeepers have not been the exception of having interest in Congolese natural resources. Among allegations, there are slaughter of elephant and illegal trafficking of natural resources. For that, many evidences have been expressed to denounce the involvement of the UN peacekeepers in the illegal exploitation of Congolese natural resources. Is the case of the Officer of the National Park in the eastern and the assistant director of the UN’s Office. For the Officer of the National Park 7, the UN peacekeepers of the UN Mission in the DRC could be involved in the slaughter of elephants in the National Park of Virunga with the complicity of the Democratic Liberation Forces of Rwanda’s elements (Forces démocratique pour la liberation du Rwanda, FDLR), -the Rwandan militias led by some of the perpetrators of the 1994 genocide- in exchanging arms and ammunitions with ivory-point. Moreover, according to Basanisi, the assistant director of the UN’s Office of Internal Oversight resigned and denounced to the press the involvement of UN peacekeepers in trafficking and the cover-up measures taken.8 In the East of Congo, several affairs involving the trafficking of raw
6
S.C. Res. 1856, U.N. (2008) adopted by the Security Council at its 6055th meeting, on 22 December 2008 Miroza & Tuliche (August 2011), “Un chauffeur de la MONUSCO aux arrêts pour exportation frauduleuse de la cassitérite”, in Le peuple Souverain, Bimensuel d’Information générale, Goma, 15e année n°97 du 31/08/2011, p. 4 8 M., Basanisi, « Who Will Watch the Peacekeepers? », New York Times, 23 mai 2008. Cited by Th. Vircoulon, How to reform peacemaking in the Democratic Republic of Congo: When peace processes become international "systems of organized action", Note de l’Ifri, Programme “Afrique subsaharienne”, February 2009. Retrieved 20 7
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materials have damaged the image of the Indian and Pakistani contingents. While these have been accused of smuggling gold back to their home countries, with the aid of Indo-Pakistani trade networks existing in the Great Lakes region, no sanctions were ever applied to the contingents, to the great frustration of UN inspectors. The Pakistani case was especially serious, as it concerned “guns for gold”, benefiting one of the militias in Ituri. The UN’s internal auditors uncovered proof that Indian peacekeepers had been buying gold in Nord-Kivu.9 This has been reported by Human Rights Watch cited the Office of Internal Oversight Services (OIOS) investigation into alleged gold smuggling and arms trading by Pakistani peacekeepers working with the UN peacekeeping force in DRC. Moreover, two major trades in late 2005 benefiting from
significant
facilitation
from
Pakistani
peacekeepers
including accommodation,
transportation, security, and access to UN flights.10
However, this case study demonstrates how the UN peacekeepers and UN civil staffs are involving in the illegal exploitation of natural resources through the national staffs who work for the UN mission in RDC. Is the case of Julien Mukala who works for the UN mission in DRC with the service’s cardholder MONUSCO n° 50316. He was arrested on 21st August 2011 at 23h45 at the border crossing with Rwanda with 1,200 kilograms of cassiterite in his UN-marked vehicle plate n° 1727. This has been confirmed by the Government spokesperson through a press release. He has deplored the continuation of such illegal trafficking, which not only deplete the DRC, but also maintain the insecurity in this part of the national territory by helping to grow the illegal trade in blood minerals against which the DRC and international community to mobilize firmly.11
Indeed, the Special Representative of the Secretary-General and Head of MONUSCO, Roger Meece, stressed that the illegal exploitation and smuggling of natural resources from the DRC August 2012 from www.ifri.org/downloads/noteafriquevircoulonfinal1.pdf and www.ifri.org/?page=detailcontribution&id=5619&id...97 9 Th. Vircoulon, Op. Cit., pp.8-9 10 HRW, UN: Hold Peacekeepers Accountable for Congo Smuggling : Letter to Chief of UN Peacekeeping Urges Follow-Through, July 24, 2007. Retrieved 20 August 2012 from http://www.hrw.org/en/news/2007/07/22/un-holdpeacekeepers-accountable-congo-smuggling 11 L. Mende Omalanga, Communiqué du Gouvernement relatif à la saisie d’une cargaison de substances minérales dans un véhicule de la Monusco, 22 August 2011. Retrieved 15 February 2012 from http://www.occrdc.cd/article645.html
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are serious crimes, the prevention of which MONUSCO is tasked with and committed to support. In a statement, the Congolese government said that “the incident puts into question the compliance of some members of the UN Mission with the relevant resolutions of the United Nations Security Council governing their presence in the DRC and Congolese law.”12 However, public prosecutor’s office of Goma has initiated proceedings since in fragrance to shatter the whole truth about it.
Legal analysis of the case of UN Employee Caught Smuggling Minerals The case analyzed in this paper is about the 24 parcels of cassiterite transported by the MONUSCO’s vehicle plate n° 1727 that have been seizure by the Border Patrol to the Great Barrier of Goma on 21st August 2011 night. This case have been submitted to the court named Tribunal de Grande Instance of Goma in the proceedings of fragrance. Indeed, the legal bases are the Congolese Mining Code of July 2002, the Congolese criminal law and the Vienna Convention on Diplomatic Relations of 1961 as the UN Mission has immunity. Regarding the judicial decision RP 21 66513, there was evidence in the following allegations: the unlawful possession of mineral substances, the illegal transport of mineral substances, and the attempted export fraudulent of mineral substances. The above allegations are provided and criminalized by the Congolese Mining Code. Indeed, Article 303 of the Congolese Mining Code provides that “Whoever unlawfully detained minerals shall be punished imprisonment of up to two months and a fine whose amount in Congolese Francs equivalent of $2,000 to $20,000 or one of these penalties.”
14
According to
that, the court found that the accused was guilty of that violation in detaining mineral substances (cassiterite) and has been condemned for two months of imprisonment. Regarding the illegal 12
Congo News Agency (August 25, 2011), Case of UN Employee Caught Smuggling Minerals Not Unique. Retrieved 15 February 2012 from http://www.congoplanet.com/news/1872/united-nations-driver-caughtsmuggling-minerals-eastern-congo.jsp 13 TGI-GOMA, RP 21 665, affaire MP c/ Julien Mukala et Dodo Makuza 14 Translated from the original in French : Article 303 : De la détention illicite des substances minérales. Quiconque aura détenu illégalement des substances minérales sera puni d’une servitude pénale de deux mois au maximum et d’une amende dont le montant en francs congolais est l’équivalent de 2.000 USD à 20.000 USD ou d’une de ces peines seulement.
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transport of mineral substances, the article 304 of the Congolese Mining Code provides that “Whoever, without authorization, will be transported or is transporting mineral substances, is punishable by a prison term of two months and a fine of an amount in Congolese Francs equivalent of 2,000 to $ 20,000 or one of these penalties.” 15 According to this disposition, the court concluded that the accused have resolved intentionally to transport mineral substances. In consequences, the court has recognized the accused guilty of that violation with two months of imprisonment. For the export fraudulent of mineral substances, the article 305 of the Congolese Mining Code provides that “Any export or the attempted export fraudulent of mineral substances in contravention of the customs and excise duties under this Code is subject to penalties and almonds under the laws and customs [...]”.16 As the accused did not provides the proof to have accomplished all administrative formalities before crossing the border, the court has found the accused guilty of that violation and condemned him for three years in prison and a US$ 25,000 fine for trying to smuggle minerals to Rwanda. However, the issue was about the immunity which could have the driver of the MONUSCO’s vehicle plate n° 1727 which transported the 24 parcels of cassiterite. Often, the privileges and immunities of an international organization are defined in an agreement to this effect. Thus there is an agreement between the DRC and the UN on the status of the MONUC / MONUSCO (Accord entre l'ONU et la RDC concernant le statut de la Mission de l'Organisation des Nations Unies en RDC) which define the privileges and immunities. According to the paragraph 5117 of the agreement mentioned above, if a member of MONUC/MONUSCO has committed a criminal offense, the government informed the Special Representative in the shortest time and present him any piece of evidence in its possession 15
Translated from the original in French : Article 304 : Du transport illicite des substances minérales. Celui qui, sans autorisation, aura transporté ou fait transporter des substances minérales, est puni d’une servitude pénale de deux mois et d’une amende dont le montant en francs congolais est l’équivalent de 2.000 à 20.000 USD ou d’une de ces peines seulement. 16 Translated from the original in French: Article 305: De la fraude. Toute exportation ou tentative d’exportation frauduleuse des substances minérales en contravention du régime douanier et des accises prévu par le présent Code est soumise aux pénalités et amandes prévues par la législation douanière et accisienne en la matière. 17 Translated from the original in French: Paragraph 51: S'il estime qu'un membre de la MONUC a commis une infraction pénale, le gouvernement en informe le représentant spécial dans les meilleurs délais et lui présente tout élément de preuve en sa possession sous réserve des dispositions du paragraphe 26.
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subject to the provisions of paragraph 26. Indeed, Julien Mukala is belonging to the national staff of the UN mission to whom there is no immunity granted, but also as the case was submitted in a proceeding in fragrance it is not required any formalities to inform the Special Representative. However, the paragraph 2618 provides that the Special Representative, the Commander of the military component of MONUC/MONUSCO and the senior staff of the Special Representative have the privileges and immunities referred to the international law recognizes diplomatic agents.
Indeed, a Diplomatic agent is the head of a diplomatic mission or a member of its staff having diplomatic status. The latest is the status held by a member of the staff of a diplomatic mission who is classed as a diplomatic agent. Those enjoying it, also called the diplomatic staff, are thereby entitled to diplomatic privileges and immunities, and are included in the receiving state’s diplomatic list. It is for the sending state to propose that an individual be so classified, and for the receiving state to agree.19
Thus, as national staff, Julien Mukala could not be in the above three categories mentioned in the agreement between the DRC and the UN at the paragraph 26, and consequently Julien Mukala isn’t a diplomatic agent to enjoy privileges and immunity.
Conclusion As the situation in the DRC demanded an urgent response from the international community, the Congolese population welcomed the resolution 1258 (1999) which authorized the deployment of the United Nations military liaison personnel; the resolution 1273 (1999) which extended its the mandate; the resolution 1279 which created the MONUC; … the resolution 1925 (2010) which changed the MONUC to MONUSCO and currently the resolution 2053 (2012) which extended the MONUSCO’s mandate to June 30, 2013.
18
Translated from the original in French: Paragraph 26 : Le représentant spécial, le commandant de la composante militaire de la MONUC et les collaborateurs de haut rang du représentant spécial dont il peut être convenu avec le gouvernement jouissent du statut spécifié dans les sections 19 et 27 de la Convention, dans la mesure où les privilèges et immunités visés sont ceux que le droit international reconnait aux agents diplomatiques. 19 G. R. Berridge & A. James, A Dictionary of Diplomacy, 2nd Ed., New York, Palgrave Macmillan, 2003, pp. 70, 84
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Indeed, since 1999 the Congolese population has appreciated the presence of the UN Forces as an international support to reestablish peace in the DRC. However, the Congolese people did not yet satisfied by the work of the UN peacekeepers in protecting civilian population even under chapter VII of the UN Charter in the zone de combat. Clearly, regarding the masse violations of human rights in the area where the UN peacekeepers have been deployed and the presence of rebels groups demonstrated the structural ineffectiveness of the UN peacekeeping mission. In additional to that, the involvement of the UN peacekeepers in sexual exploitation and abuse, in illegal exploitation of Congolese natural resources and the gold smuggling and arms trading have damaged the image of the UN in the region and particularly in the DRC. That is why the Congolese people think that the UN peacekeeping mission in the DRC revealed the true nature of a moribund peace process because the international community had not been able to successfully reestablish peace in the DRC even to prevent the illegal trafficking of natural resources.
It is simply impossible to prevent all forms of abuse. But it should not be impossible to create effective accountability on peace operations.20 Thus, as the UN does not have the power to criminally prosecute its peacekeepers, it could provide a judicial system for accountability on international missions as the court-martial jurisdiction of military forces, lift their immunity, and prosecute them where they are serving.
To come up the conclusion, it remains an assumption that the mission, the duties and the conducts of the UN peacekeepers are well-understood and well known by contingents involved. Due to that, I support the Krauthammer’s believes that the only way to intervene is to occupy the country in question: “Take over a country, reorder the society, establish new institutions and create the basis for leaving one day. America did that in Germany and Japan after World War II
20
A. Ladley, “Peacekeeper abuse, Immunity and Impunity: The Need for Effective Criminal and Civil Accountability on International Peace Operations”, Politics and Ethics Review, Edinburgh University Press, 2005, p. 89
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and it worked… If you want to intervene, do it seriously”. “Occupy, or stay home,” is the advice.21
21
K. Rahmatullah, “United Nations Peace-keeping in Internal Conflicts”, in J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Kluwer Law International, Netherlands, 2000, p. 546. Retrieved 20 August from http://www.mpil.de/shared/data/pdf/pdfmpunyb/khan_4.pdf
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