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Comment
Last Updated: 07/31/2011
International Humanitarian Law Violations Committed by the Nkundan Rebellion in the Democratic Republic of Congo.
Philippe Tunamsifu Shirambere

University for Peace Great Lakes Program Fellow, Philippe Tunamsifu Shirambere, comments on violations of International Humanitarian Law committed by the Nkundan rebellion in the Democratic Republic of Congo, understood within the larger context of political violence in Africa's Great Lakes Region.


Introduction

More than six decades since the adoption of the Geneva Conventions of 1949, humankind 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 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 respected[1].

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), formerly the Republic of Zaïre, located in Central Africa, is the second largest country in Africa by area, after Algeria. After 32 years of the dictatorship of Mobutu’s presidency (1965-1997), the country entered into various internal armed conflicts. North-Kivu, situated on the DRC’s border with Uganda and Rwanda, where armed conflicts began, is one of the most strategic areas 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, a rare mineral used in the manufacture of mobile phones.

This report focuses on the third armed conflict (2004-2009) under the leadership of General Nkunda and Colonel Mutebusi’s rebellions. We begin with a brief overview of the preceding Congolese conflicts in order to set the background, before discussing 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, which 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 through 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 President Mobutu fled to Morocco.

In July 1998, President Laurent-Désiré Kabila decided to withdraw 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 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 for the CDR and MLC to oppose the government was that President Kabila failed to reconcile people by introducing more members of his indigenous tribe in the government, while the claims of the continuing presence of Rwandan and Ugandan forces in DRC was justified as concern for 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] found 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 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, 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 bodyguards, 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 policy and tried to negotiate peace with all parties and countries involved in conflicts.

On 16 December 2002, a meeting was held in Pretoria (Republic of South Africa), where various elements 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 officers of the Congolese Rally for Democracy, refused the offer to become a general under the new army because he sought to provide more protection to his indigenous tribe, the Banyamulenge. He attained 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.

Conflict analysis under International Humanitarian Law

Before presenting the legal reasoning, the first point offers an analysis of 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, when Colonel Mutebutsi[8] and combatants loyal to him took up arms against General Mbuza Mabe, commanding officer of the National Armed Forces of DRC in Bukavu; named “commandant region militaire du Sud-Kivu”. Mutebutsi’s forces were 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 withdrawal took him south of Bukavu and into Rwanda, where 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] carried out 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 addition to the Bukavu crisis, the Institute for War and Peace Reporting wrote: “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]

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 health centers, organizations that helped victims of sexual violence, and MONUC investigators. Therefore, according to MONUC (2007, as cited in 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 is another violation of human rights that can be pointed out in this case. According to Agence France-Presse, several testimonies confirmed that after 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 various logistical tasks or as sex slaves[16]. In September 2008, a CNDP officer said to Syfia Grands Lacs[17] that, “we need more men, and for that we appeal to young people.” Previously, on 3 June 2008, two children of between 14 and 16 years old were killed while they were running away from the forced recruitment of CNDP in Masisi territory, more than 80 km west of Goma.

Moreover, on Thursday, 6 November 2008, the residence and commercial houses of one of the local people, “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]

Legal reasoning

Before focusing our attention on the facts mentioned above, it is appropriate to establish the nature of the conflict that took place in the Eastern part of the Democratic Republic of Congo. Indeed, the conflict was between the Armed Forces of the Democratic Republic of Congo and the National Congress for the Defense of People, led by General Nkunda. According to that, the nature of the conflict was a Non-International Armed Conflict. The relevant humanitarian law instruments that regulate war conduct during internal armed conflict will be examined further, including: the violations of Article 3 common to the Geneva Conventions of 1949, the four Geneva Conventions related to the protection of civilian persons in time of war and the Additional Protocol II.

Indeed, the aim of International Humanitarian Law is to protect persons who are not, or who are no longer taking part in hostilities. Thus, International Humanitarian Law does not protect the Armed Forces of the Democratic Republic of Congo or the National Congress for the Defense of People.

As mentioned in Article 13 of the Additional Protocol II, civilian protection is as follows:

  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, the Nkundan rebellion had been involved in grave violations of International Humanitarian Law (IHL) under the following provisions:

- Sexual violence or rape as a weapon of war

Rape is prohibited by 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.

- Acts of killing (murder) and torture of civilian populations are prohibited by Article 32 paragraph 1 of the fourth Geneva Convention.

- Destruction of economic infrastructures, including looting and the attack of civilian camps.

The Kadutu central market in Bukavu (South Kivu Province) and the Hotel Grefamu of Kiwanja (North Kivu Province), which were both burnt down, are considered civilian objects. By destroying them, the Nkundan rebellion failed to protect the objects indispensable to the survival of the civilian population, which is provided by 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 that targeted the Mugunga camps of internally displaced persons showed the deliberate intention not to distinguish between the civilian population and combatants, or between civilian objects and military objectives as provided by Article 48 of Additional Protocol 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 of Additional Protocol II). It is clear that the rebellion led indiscriminate attacks, which are prohibited by Article 51 of Additional Protocol I.

- Recruitment of child soldiers, which is in violation of children’s right to education and the right to express their views. By recruiting children, the rebellion failed under Article 77 of the Additional Protection I and Article 4 paragraph 3 (c) of the Additional Protocol II. Moreover, this is also a violation of Article 38 of the Convention on the Rights of the Child and Article 71 of the domestic law for the protection of children.[21]

Necessity to prosecute

The Democratic Republic of Congo is a State party to the four Geneva Conventions, ratified on 24 February 1961; to the Additional Protocol I, ratified on 3 June 1982; and to the Additional Protocol II, ratified on 12 December 2002. It had also ratified the Rome Statute of the International Criminal Court of 17 July 1998 on 11 April 2002.

International crimes have been included in domestic legislation, particularly in the Military Criminal Code.[22] This Code incorporated the Crime of Genocide (article 164) in the same words as in the definition of the Rome Statute of the International Criminal Court, along with Crimes against Humanity (Articles 165-172), with the death penalty invoked for perpetrators if the victim is dead, or if the acts causes serious harm to his/her body; and finally, the inclusion of War Crimes in Articles 173-175.

Indeed, the Nkundan rebellion committed crimes against humanity under Article 7 of the Rome Statute of the International Criminal Court by killing civilian populations –murder- (paragraph 1a), torturing (paragraph 1f) and raping girls and women (paragraph 1g), and by conducting the direct attack against displaced camps of civilian populations (paragraph 2a).

The Nkundan rebellion also committed war crimes under 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 2b ii), by bombarding buildings that were not military objectives, like Hotel Grefamu (paragraph 2b v) and by looting –pillage- (paragraph 2b 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 who do not take part in hostilities, prisoners of war and other detained persons, as well as civilians and civilian objects.

Parties to a conflict are prohibited from targeting 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 General Nkunda, with his rebel movement, the National Congress for the Defense of People, and Colonel Mutebusi violated 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 there cannot be peace without justice, especially for the gravest crimes under international law. Additionally, because Rwanda and the DRC are currently working together to bring peace to the African Great Lakes Region, it is very important to underline that victims of crimes perpetrated by all warlords, including General Nkunda and Colonel Mutebutsi, need 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 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 transfer to the International Criminal Court.



[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

[2] There are cases of interference in the internal affairs and the illegal exploitation of Congolese natural resources, along with acts of looting, etc.

[3] United Nations Security Council. (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

[4] Top 10 World Changing Assassinations & 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 ».

[7] Amnesty International. (2005). 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 Nkunda 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

[13] Idem., pp. 42-43

[14] 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-aux-nkundistes/

[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] This is the case of the bombing of Hotel GREFAMU of Mr. Mutsanga.

[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-des-nande-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

[21] 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.

[23] 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

[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


Philippe Tunamsifu Shirambere is a Fellow of the University for Peace Africa Great Lakes Program. He is a recent Masters graduate from the programme of International Law and the Settlement of Disputes at the University for Peace.
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