Bread and Butter of International Relations
Recently, the foreign minister for Uganda visited Kinshasa the capital city of the Democratic Republic of the Congo, in order to deal with growing tensions between the two neighbouring countries, stemming from discovered and potential oil deposits.
This has resulted in cross border attacks which have left several people, including a British oil worker, dead.
These meetings are the bread and butter of international relations, however this meeting has much more important undertones that could result in serious instability within Central Africa.
As a August 14th Reuters article noted,
…relations between Kampala and Kinshasa have been fraught for years, with Kampala regularly threatening to send troops across the border if no action is taken against a number of rebel groups based in lawless eastern DRC.
Unfortunately, if a conflict did start up between the DRC and Uganda it will only be a continuation of the strife that the DRC has faced in its recent past.
History of the Conflict
The DRC has been caught up in an almost perpetual state of conflict since 1997. At that time, the long standing President Mobutu, the only non-Colonial leader the country knew, was overthrown by the leader of a rebel group backed by Rwanda and Uganda, Laurent Kabila.
Since this event, many different armed groups, sometimes supported by a variety of the DRC’s neighbours, have sprung up to challenge the government, as well as take control of different key provinces within the country, especially those rich with mineral wealth.
While neighbouring countries cited security concerns to justify their invasion of the DRC, it is widely understood that their troops were used to gain control of key territories which would be provide economic benefits.
Lousaka Agreement Ceasefire
In 1999, the Lusaka agreement brought a ceasefire to the DRC, with all neighbouring countries pledging to remove troops and military support from the DRC.
A UN peacekeeping mission, under the name MUNOC, was then established to help keep the peace as the transitional government began its work of promoting stability within the country.
This mission has over 16,000 troops under its command, with its forces gathered from several different Asian and African countries (most notably Pakistan and India), and monetary support coming mostly from countries of the Western world (with the U.S. providing the most donor money).
By 2003, no country had officially sanctioned armed groups within the DRC. As well, in 2003, all groups submitted to the creation of a transitional government that would work to bring all rebel groups within the political system and oversee the creation of a new national army which would incorporate rebel commanders and troops.
First Elections in 40 Years
In 2006, the first free elections in 40 years were held, and many believed that this would be the first step towards the stability and peace within the DRC.
However, while certain rebel groups have been integrated within the ruling DRC regime, others have refused to submit. As well, foreign rebel groups operating within the country have caused renewed tension between the DRC and its neighbours.
This conflict has lead to over 3 million deaths, many of them children, and many of them caused by preventable disease exacerbated by the war. Current figures suggest that even though the level of conflict has decreased since the open war between 1998 and 2003, 1,000 deaths a day occur due to the tensions.
Women have, and remain, a predominate target for rebel groups and government forces, and are often mutilated or raped as a standard part of fighting. As well, large parts of the country remain undeveloped, especially in terms of government infrastructure, as money has mostly gone towards fighting rebel groups rather than improving the lives of civilians.
This lack of government money has lead to more conflict, as underfunded government troops have turned to attacking civilian populations for goods and materials, which has in turn prompted rebel groups to spring up to combat the corruption of government troops.
One such example is the Mayi Mayi uprising that occurred in 2003 in the province of Katanga.
Overall, despite the brief nature of this post, the situation within the DRC is complex. In the future, I hope to discuss the role that international law can, and should, play in dealing with the conflict as well as how the situation in the DRC shows the limits of International Law in dealing with conflict.
Finally, I hope to discuss what we, as Canadian citizens, can do to help the situation within the DRC. For now, even knowledge of the DRC is important, especially since the level of indifference is high surrounding the issue.
One of the only international instruments working in the DRC currently is the UN peacekeeping mission, MUNOC.
According the UN’s peacekeeping website, this is the largest current UN peacekeeping mission, costing over 1/5th of the $5 billion peacekeeping budget, and featuring 16,000 armed troops along with another several thousand civilian staff.
The MUNOC mission has, in some form, been in place since 2000, and has been at its current strength since 2004. In that time its mandate has changed from overseeing the 1999 Lousaka agreement cease-fire and engaging in human rights monitoring to maintaining an armed presence in key areas of volatility, protecting civilians in immediate danger, and facilitating arms collections from combatants.
Essentially, MUNOC has evolved from being a facilitator, helping domestic groups end the conflict through advice and expertise, to an active participant in shaping the country.
MUNOC and Corruption
With these facts taken into account, peacekeepers have been given an important role to play in ensuring that the future of the DRC is peaceful. However, recent events have shown that the MUNOC mission may be impeded by factors both within, and outside, of its control.
For example, there is some concerns over corruption within the mission. Peacekeepers within the MUNOC mission have been accused of gold and gun smuggling for armed groups. This was followed by an internal UN report, which confirmed some of the accusations, saying that some Pakistani peacekeepers had aided gold smugglers by protecting goods and personnel.
While I cannot speak to what motivated peacekeepers to help commit crimes they are supposed to stop, it does suggest a breakdown within MUNOC. Perhaps these peacekeepers were disillusioned by a perceived lack of progress on the ground, as, seven years after the ceasefire agreement, violence and instability remain in large parts of the country.
Or perhaps these peacekeepers entered into the MUNOC mission ready to act unethically, and the heads of the MUNOC mission failed to engage in proper oversight in order to root out unethical behaviour or prevent it from happening. This is supported by the rather lukewarm response by the UN towards those Pakistani peacekeepers.
Human Rights Watch has stated that the UN has decided that the report confirming the gold-smuggling accusations was its final action.
Whatever the case, it is clear that these gold smuggling accusations bear an ill omen towards the success of the mission.
Unfortunately, this corruption accusation may only be a sign the MUNOC mission faces serious difficulties.
MUNOC and the Limitations of Peacekeeping
Besides these accusations of corruption, the most serious difficulties facing the MUNOC mission are rooted in the particularities of UN peacekeeping in general.
The classical definition of peacekeeping is based on three principles: host-state consent, impartiality and minimum use of force (1).
These principles were established because peacekeeping was not designed as an international army, tasked with ending conflicts in the world, but to help enforce peace once it has already been established.
Peacekeepers are essentially third-party, multi-lateral, facilitators between two sides of a conflict who have decided to make a bid for peace.
However, the DRC, far from working for peace, is still embroiled in conflict. The MUNOC mission was established after the 1999 Lousaka agreement, which included a cease-fire between all participants in the war that occurred after Laurent Kabila’s assent to power. This cease-fire did not last, as several rebel and armed groups have maintained violent campaigns across the country.
n 2006, Human Rights Watch noted that the national army attempted to rout out members of an armed insurgency through the use of terror tactics on civilians in the provinces of Katanga, Ituri, and North and South Kivu.
The actions of the government are mirrored by insurgency campaigns such as the Mai Mai rebellion, and the rebel group attached Gen. Nkunda, As well, the DRC continues to have problems with foreign rebel groups, notably from Rwanda and Uganda, who base themselves within the country.
In other words, while war would be an inappropriate term for the situation in the DRC, the country is far from peaceful.
Rather than withdraw the MUNOC mission, which, of course, would be bad both morally and politically, the UN changed the mandate of the mission as the situation in the DRC changed.
In order to enforce peace, peacekeepers are now called upon to actively intervene in conflict in order to protect civilians. The most serious problem however is that by increasing the scope of MUNOC’s mandate beyond the classical definitions of peacekeeping, its required tasks and goals become murky.
MUNOC’s new mandate includes protecting civilians under immediate threat of violence. This brings up several questions.
Can MUNOC peacekeepers protect civilians under threat from the DRC national government?
Could it even maintain host-state consent if it attempted to do so?
Can an armed force of 16,000 realistic protect the millions of people still under threat from violence in the country?
Are peacekeepers really trained and equipped in order to complete its mandate?
Peacekeeping and the DRC: An Improper Solution?
These new difficulties threaten to destabilize the MUNOC mission, as well as attack its legitimacy as a positive force in the DRC.
Stories abound of attacks on civilians by armed groups close to MUNOC centres, and yet peacekeepers did not intervene.
Recent refugees in Uganda have noted that villagers in Eastern Congo rioted “while protesting the failure of U.N. peacekeepers to protect them from militias.
Could peacekeepers really be called to intervene in these situations? They are not an army per se, as they are trained under the principles of minimum use of force, and they would likely not be able to stop the violence even if they tried to intervene.
By intervening, these peacekeepers would, by necessity, be placing themselves on a certain side of the conflict.
If they intervened against the national government, they could face expulsion from the country.
If they intervened against the rebel and insurgent groups, then they would be forced to align with the national government or face increased attacks against their operations.
With only 16,000 troops this is a frightening prospect, and would likely mean that MUNOC would be forced out of the country. While it has been documented that UN peacekeepers have worked together to deal with armed insurgency groups, it cannot go too far down this path, otherwise it could face legitimacy issues, possibly being viewed across the country as a tool of the DRC government.
Therefore, once a cease-fire resumes within the country, the ability of the UN mission to fulfill the “classical” parts of its mandate may be hampered by distrust.
Not only is the MUNOC mission complicated by its shifting mandate, but the situation in the DRC is preventing peacekeepers from fulfilling the original parts of its mandate in the country, tasks that peacekeeping missions normally engage in.
One of the most important tasks of any peacekeeping mission is to facilitate the disarming and demobilization of excess soldiers on both sides of a conflict.
This is of great importance within the DRC due to the widespread use of child soldiers on all sides of the conflict. While MUNOC would be hard-pressed to take child soldiers from armed rebel groups, it also currently faces difficulty in obtaining child soldiers from the national military.
As part of its various cease-fire agreements, armed rebel groups were to be integrated into the national military in a process known as ‘mixage.’
As part of this agreement, these new army brigades were to give up their child soldiers. However, while MUNOC has been able to set up centres for child soldiers, peacekeepers have recently had difficulty in obtaining child soldiers from army commanders.
This inability to obtain child soldiers is directly related to the continuing threat of violence within the country, as army brigades in the eastern part of the country have prevented peacekeepers from collecting their child soldiers.
In one case, army commanders in the province of North Kivu to the east continued to recruit child soldiers citing the need to “maintain sufficient soldiers to protect Tutsi living in North Kivu and enable the return of thousands of Congolese Tutsi refugees living in camps in Rwanda.”
Since peacekeepers are having difficulty demanding the release of child soldiers, they must rely on either the kindness of army commanders, or the ability of child soldiers to break away from army brigades and find refuge within MUNOC centres on their own.
As well, AllAfrica.com has reported that UN peacekeepers have been having difficulty in fulfilling other aspects of their mission. Recently, peacekeepers were drawn into low intensity clashes while trying to investigate an assault on Congolese intelligence officers in North Kivu province.
If this trend continues, the MUNOC mission could easily face violence and conflict as it tries to complete even its most basic tasks.
Overall, it appears that the MUNOC mission in the DRC is in trouble. It simply boils down to the problem that the situation in the country does not match the optimal case for successful peacekeeping missions.
In order to create lasting peace in the DRC, it is the opinion of this particular writer that the MUNOC mission must be reevaluated.
Solutions and Summary
What is the solution?
Simply eliminating the MUNOC mission would also eliminate the most direct instrument that the international community has in effecting the outcome in the DRC.
What is necessary is a new type of force that can be called upon to take direct action to protect civilians and stop the violence in the country. While the UN should remain an important actor, it may be necessary to look towards other actors that can contribute.
For example, the UN mission to the Sudan is increasing its levels of armed troops, and the Organization of African Unity (OAU) has called upon its member states to provide the entire quota of 20,000 troops. This is part of a trend within Africa where regional powers, such as Nigeria, Senegal, and South Africa, take the lead in helping troubled neighbours.
Perhaps it is time for the DRC to embark upon an entirely “Made in Africa” solution. However, this solution may not be appropriate considering the simple fact that the DRC’s neighbours have been a significant part of its problems.
I don’t intend to find a solution here, but only suggest that the key to peace in the DRC will be complicated, and no single solution can cover every eventuality.
What is most necessary is that a frank dialogue is opened in order to find an appropriate solution. While peacekeeping itself is not necessarily a “broken” institution, it should not be relied upon in all situations.
(1) Mats Berdal, “Ten years of International Peacekeeping” in International Peacekeeping, 2003
In 2004, the International Criminal Court started to get involved in the situation in the Democratic Republic of the Congo, when it was referred to the Prosecutor of the court.
Since then the court has decided to prosecute a single man, Mr. Thomas Lubanga Dyilo, the leader of the “Union Patriotes Congolais” (UPC) and the “Forces Patriotiques pour la Libération du Congo” (FPLC), a rebel group operating in the early 2000s.
The ICC decided to prosecute Mr. Dyilo on three counts, the enlistment of children under the age of 15, the conscription of children under the age of 15, and the active use of children under the age of 15 in hostilities, all considered war crimes within the Rome Statute which established the ICC.
The Dyilo case gives us an opportunity to discuss the use of international criminal law as a part of conflict management.
- When is it appropriate to use the international criminal court instead of allowing state jurisdictions to take the lead in prosecuting war criminals?
- What are the difficulties of ICC activism in pursuing war criminals?
- Can, and should, international criminal law be used to help deal with conflict and violence?
- Or can it only be applied after a ceasefire or peace treaty has been established?
These are important questions not just for the DRC, but also for the use of the ICC in prosecuting war criminals in general.
What role does war crime prosecution play in dealing with conflict?
The stated purpose of the ICC is to ensure that “crimes of concern to the international community do not go unpunished.” However, much like courts at a national level, the ICC can become, through its work, a force for social change and activism.
Because of the nature of the crimes committed, the ICC’s work becomes part of the process through which a society or state comes to terms with conflict once peace and order has been established. The simple act of sorting out the guilty and innocent is widely seen as a part of the process through which order is created.
Both the ICTY and the ICTR were convened understanding that their work would help the process of restoration and reconciliation through the establishing the facts surrounding the conflict, as well as punishing those who deserve it. In the DRC, the use of prosecution could therefore become a part of national healing and possibly prevent future violence.
However, the default solution within the DRC when dealing with former conflicts and armed groups, has been to ignore the crimes committed by former rebel leaders and instead offer them positions in the national army in order to ensure their loyalty to the government.
The process is known as “mixage” and essentially means that rebel armed groups are subsumed wholesale into the national government.
The logic of this solution appears sound; the government gets a stronger army to deal with further threats and the assurance that former rebel groups are invested into upholding the government. For rebel groups, this allows leaders to keep their position of power.
Overall, it appears that everyone wins. However, this solution does not deal with the root problems, namely why exactly these rebel groups sought to destabilize the government.
As well, and more importantly, those dangerous people who have show that they are capable of committing war crimes are not punished or taken out of society.
Is security really increased when dangerous people not only remain a part of society, but retain positions of power?
Consider the case of Gen. Nkunda, a former rebel leader turned army commander after his uprising in early 2000. Nkunda has recently started his campaign against the national government using the national army troops under his command.
Just recently the situation within the eastern part of the conflict has been called a “state of war” as the DRC government engages with troops loyal to Gen. Nkunda.
While ‘mixage’ may be a quick solution that helps the DRC government end serious conflict, it is, unfortunately, not a completely stable solution.
It may not be necessary to try and prosecute all those involved in war crimes, in order to ensure a safe and stable environment, it should be seen as necessary to pursue war crime trials for significant actors in the general war between 1998 and 2003 as well as the during the low-intensity conflicts that have occurred since then.
This ensures that those capable of committing atrocities are taken out of society, and prevents latent anger from brewing amongst victims who may perceive a lack of justice. Often rebel groups in the DRC have formed when ordinary citizens feel abandoned by the government
Why the ICC?
There are several reasons why the ICC should take charge in prosecuting war criminals in the DRC.
In the first case, there is strong evidence that shows that the DRC government has committed war crimes at key points during both the 1998-2003 war, but also in its attempts to quash rebel movements after the war.
Human Rights Watch have accused national soldiers operating in Katanga in 2004 and 2005 of summary executions, torture, arbitrary arrest, and rape, all of which were used as part of a campaign against the Mai Mai insurgency.
It would be inappropriate to simply suggest, without proof, that, in order to protect its integrity, the DRC government would not attempt to prosecute its own national army units.
There is a strong likelihood that, through a variety of means, those people who have committed war crimes while affiliated with the government, will be protected from the full working of the law.
Therefore, by taking the the trial procedures outside of the hands of the government and the national judiciary, every accused, whether a member of the government or of an armed group, will receive an equitable trial and sentence.
Because the ICC is a multilateral third-party, its workings and decisions can be viewed as more legitimate to all parties in the DRC. The ICC has no special interest in the DRC besides ensuring that justice is served, violence and war crimes are punished, and order is established.
Disadvantaged groups may feel more comfortable approaching the ICC as witnesses because the court will be impartial, and therefore not marginalize any group.
Any analysis of the situation in the DRC will not be tainted by a history of regional and ethnic differences.
The limits of the ICC
First, the ICC has been legislated as a “court of last resort.” While this primarily means that war crime cases should be fleshed out at the national level first, it also means that only the most spectacular crimes are meant to be prosecuted at the ICC.
This is reflected in the design of the ICC, which only has 6 judges and is therefore unable to hear a large number of case at once. Overall, the ICC in its current form could not handle the sheer volume of war crime trials that would originate from the DRC in a policy of active prosecution at the international level was established.
Second, the Rome treaty established the principle that at all times the ICC must try and make its decisions in reference to the national laws and court system from which the crime, or criminal, is based.
While the ICC is not prevented from taking an opposing stance to the principles set in the country, there is some ambiguity surrounding how far the ICC can diverge from the state principles.
Would it even be possible to persecute war criminals at the ICC if the DRC refused at accept its decisions?
Despite these obstacles, there is a case to be made that the ICC remains an appropriate actor in the prosecution of war criminals in the DRC.
The Rome treaty provides the ICC the opportunity to take an activist stance in the prosecution of war criminals.
According to Article 13 Section c, the Prosecutor of the ICC is able to initiate an investigation without having to wait for the situation to be referred to them by a member state,
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:
…(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.
The Rome treaty recognizes that the ICC will operate when an issue is ignored by the national judiciary.
Article 18 states that cases presented to the ICC can only be admissible if it is not being pursued by a national court, or at least is not being pursued in good faith by a national court.
2. Within one month of receipt of that notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State’s investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation.
This Article allows an ICC investigation to be triggered prior to any investigations on the part of the state, rather than waiting for a state to recognize a problem and either choose to investigate or not.
The ICC is therefore given a framework for activism if a situation arises in the world that demands legal action.
There is nothing to prevent the ICC from increasing in size in order to handle an increased volume of trials. The ICC is still in its infancy, and nowhere has it been said that the ICC shall, or even should, remain at its current size.
In its prosecution of Thomas Dyilo, the special prosecutor noted that this would only be the first of many DRC war crime trials that will be heard at the ICC. While the ICC remains relatively small now, it is definitely looking to grow, or at least have the capability to handle a larger volume of trials.
As for the final obstacle, ensuring the consent of the DRC government to prosecute war criminals, this is a tricky issue that will continue to plague the ICC for the rest of its life span.
The ICC will continually be forced to strike a balance between independent activism on the one hand, and respect of state jurisdiction, as well as the consent of member states, on the other.
The end result is strongly tied to the will of the member state to work towards peace and stability within its borders at whatever cost, which will lead to a willingness to purge from itself all those who create violence and instability within the country.
Overall, despite the need for the ICC to maintain its own strong voice in pursuing war criminals, the relationship between the ICC and the DRC should be a partnership.
Both bodies are working towards the same goals, and both are, in the opinion of this writer, necessary for ensuring those goals become reality.