The M23?s latest assault on Goma has an international legal consequence and constitutes a set of war crimes. The large-scale military assault launched by M23 on Goma, and the manner in which both Rwanda and M23 forces are fighting this war, raise numerous red flags regarding large scale violations of human rights and international humanitarian law (IHL). Such violations have long characterised the international legal framework in armed conflict; yet despite post-Cold War improvements in the enforceability of international criminal law, in the Congo context those who perpetrate human rights violations and war crimes seem largely immune to legal accountability.
The indictment of the Congo War Lord commonly known as Terminator has proved disastrous and difficult to enforce and the current UN Security Council sanctions against the M23 rebel leader Sultan Makenga is likely to suffer the same fate, yet the Rwandan leaders who have been supporting these conflicts in Congo for almost 2 decades seem not bothered by the continued death of innocent people. The International Community with the largest UN Peace keeping force in the world stationed in Congo, just looked on as the M23 forces matched into Goma without any resistance.
Certainly, international law offers no panacea for the death and destruction of war; nor does most media coverage of the Congo conflict devote more than the scantiest attention to the human rights implications of such violence. International law does, however, provide the most important standard against which the conduct of opposing sides can be judged. Such judgments have political currency, if not during the heat of battle then later. International human rights campaigner Raji Sourani described it in the midst of the current violence, human rights is the ?skin? to protect civilians from the all-out aggression of those who attack them.
International law impacts the present war in Congo in two key ways. One pertains to whether the violence deployed by each side complies with or violates IHL, in particular the Geneva Conventions of 1949 and their Additional Protocol I of 1977. The other, more complicated issue pertains to the assistance the Rwandan government is giving the rebel group M23.
Since the 1996 Rwanda has been involved directly or indirectly in the destabilization of Congo. Rwanda has been denying or giving vague excuses .However, the International Committee of the Red Cross, the official guardian and authoritative interpreter of IHL, has consistently maintained that the Fourth Geneva Convention will be applicable to countries or individuals who support not only rebels but rather all activities that result in the crimes against humanity. This view is endorsed by a vast preponderance of international legal opinion, including United Nations resolutions and the opinion of the International Court of Justice.
Rwanda under Kagame for his personal economic reasons also advances the novel interpretations of IHL in order to project the legitimacy of dubiously legal or patently unlawful practices in his involvement in Congo by arguing that Congo harbors the former militias who committed genocide in Rwanda in 1994. Rwanda?s consistent position over almost 2 decades that Congo harbors militias and as such, Rwanda has to go to Congo any time its coffers are dry, does not hold any legal water in the glass.
This extends to the interpretation that Rwanda?s own conduct is not tightly regulated by IHL when engaged in a war against what they call militias and sometimes terrorists. However, the Geneva Conventions are considered customary international law, and therefore apply any time and place and on any parties who use armed force to wage war on enemies.
The fundamental purpose of IHL is to protect civilians and minimize avoidable harm during armed conflicts. Under IHL, five core principles govern what conduct is lawful in armed conflict. Violations of these constitute grave breaches and thus can be considered war crimes. These principles are: civilian immunity (ie, the prohibition against intentionally targeting civilians or otherwise treating them as combatants); distinction (i.e., the imperative to distinguish between civilians and combatants in military operations, and for combatants to distinguish themselves as such through identifiable dress and insignia and by carrying arms openly); proportionality (ie, the requirement to use force in a manner that is proportionate to the military value of the target); necessity (ie, the obligation to restrict targets or tactics to those necessary to achieve legitimate military goals); and humane treatment (ie, the prohibition of torture, inhumane and degrading treatment of prisoners, and the imperative to guard the rights and interests of ?protected persons?, the legal term for civilians in captured territories)..
Unfortunately, there has been violation of these entire international legal obligations by the rebels in the territory they have captured. Reports have indicated massive killings, abductions of civilians, rape of women and disappearances. Ultimately, no matter how much Rwanda wants to use Rwanda militias in Congo as the political, legal and moral interference in the Congo affairs, its actions and legacy, are not far from those of other states which systematically use violence against civilians. This will be determined by its adherence to or violations of normative interpretations of international law. The longer Rwanda under Kagame continues to kill Congolese directly or by his rebel proxy M23 indiscriminately and with impunity, and the longer it maintains the military and financial illegal support of this notorious rebel group, the more such policies will face greater de-legitimation and opprobrium.
Jacqueline Umurungi
Brussels.
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