UN Warns of War Crimes in DR Congo

November 11, 2008

UN Warns of War Crimes in DR Congo

By Katherine Iliopoulos

The senior United Nations official in the Democratic Republic of Congo has accused both rebel forces and pro-government militias of committing war crimes during the recent escalation of violence in the country’s eastern region. The UN Secretary-General’s Special Representative and head of the UN Mission in Congo (MONUC) Alan Doss said on 8 November that targeted killings of civilians in the town of Kiwanja, near Rutshuru, by different armed groups were "war crimes that we cannot tolerate."

The UN’s charges come amid increasing concern about the wider impact of fighting in eastern Congo on civilians. The renewed violence in the region during the past three months has driven an estimated 250,000 people from their homes. Both the United Nations and the International Committee of the Red Cross have spoken out to remind parties to the conflict of their obligations under international humanitarian law.

Fighting in the region is attributable to a series of ethnic and political divisions that can be traced back through Congo’s 1998-2003 war to the 1994 genocide of 800,000 Tutsis in neighbouring Rwanda. Rebel General Laurent Nkunda, who launched the latest round of the conflict, claims that the Congolese government has not protected ethnic Tutsis from the Rwandan Hutu militia that escaped to Congo after the genocide.

Since General Nkunda began his offensive in August, he has driven back government forces and captured large swathes of territory in the region of North Kivu. Peacekeepers with MONUC have been struggling to keep Nkunda’s troops from the city of Goma. They have been caught up in renewed clashes in eastern part of the country after days of relative calm following a ceasefire declared in late October, the United Nations says.

Alan Doss characterized the aggression in Kiwanja, located 80km north of Goma, as “serious violations of human rights and international humanitarian law.” MONUC investigators on 7 November visited 11 graves in Kiwanja that witnesses claim contain 26 bodies, however they note that exact figures cannot be established. "We are getting reports of more than 50 dead, but we are still in the process of confirming that information," said Anneke Van Woudenberg, a researcher with Human Rights Watch.

International humanitarian law applies once there is an armed conflict, regardless of declarations or formal recognition from parties (jus in bello). It is distinct from the legal regime enshrined in Article 2(4) of the UN Charter governing the resort to force (jus ad bellum). According to the ICRC, many violations of international humanitarian law have occurred in the recent fighting in the DRC, including looting and rape, and attacks committed by combatants against civilians. The ICRC has reminded all parties to the conflict of the requirement to protect persons who are not, or no longer, directly participating in hostilities. The parties to the conflict are obliged by international humanitarian law to preserve the lives and health of the civilian population and of people wounded or captured during the hostilities. In addition, the parties to the conflict have an obligation to refrain from harming objects indispensable to the survival of the population such as foodstuffs, livestock and drinking water installations.

Those who are hors de combat (out of combat) are entitled to protection and humane treatment according to international humanitarian law. In the context of an internal armed conflict, such as the present armed conflict in the DRC, there are three main sources of protection under international humanitarian law: the Martens Clause, and Common Article 3 and Additional Protocol II of the Geneva Conventions. The Martens Clause provides that the parties to any armed conflict must act “in accordance with the principles of the law of nations derived from the usages established among civilized peoples, from the laws of humanity and the dictates of public conscience.” Common Article 3, declaratory of customary international law, provides that parties to “armed conflict(s) not of an international character” must apply certain minimum standards to “persons taking no active part in the hostilities”. It provides that such persons “including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely." The article prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.” Additional Protocol II, ratified by the DRC on 12 December 2002, provides additional protections.

The ICRC has advised that the parties must authorize and facilitate the safe and rapid passage of relief consignments being sent to the civilian population. According to the ICRC, customary law requires that armed forces protect and respect staff carrying out relief operations and any material or equipment being used for those operations.

According to UN spokeswoman Marie Okabe, UN Secretary-General Ban Ki-Moon has stated that “the intensification and expansion of the conflict is creating a humanitarian crisis of catastrophic dimensions and threatens dire consequences on a regional scale”. She said that Ban urged “all parties to immediately cease hostilities and to respect international humanitarian law” and that “he deplores the use of civilians as human shields and their deliberate targeting by belligerents”. The use of civilians, including a state’s own citizens, as human shields to protect military objectives from attack violates the customary international humanitarian law prohibition on the taking of hostages.

Article 8(2) of the Rome Statute of the International Criminal Court specifically provides for criminality over many acts committed in internal armed conflicts, including murder, rape, the taking of hostages and intentional attacks against the civilian population or those hors de combat and against personnel, installations, material, units or vehicles involved in humanitarian assistance or peacekeeping missions, which amount to war crimes.

At the International Criminal Court in The Hague on 4 November, prosecutor Luis Moreno-Ocampo expressed concern about the situation in the Kivus and recalled that his Office is closely monitoring information about attacks against civilian populations, forced displacement, murders, rapes, pillaging and looting that are reported to be taking place during these armed confrontations in North Kivu. The Prosecutor recalled that the ICC has jurisdiction to investigate and prosecute war crimes, crimes against humanity and genocide committed in the territory of the DRC or by Congolese nationals since 1 July 2002. “Crimes must stop. The people in the two provinces of North and South Kivu have already suffered too much. Rapes and massive displacements are serious crimes and will not go unpunished”, he said.

To date, the Prosecutor has charged four Congolese warlords with crimes in earlier conflicts in eastern Congo. One of the men charged is Bosco Ntaganda, the chief of staff of Nkunda's forces who have been fighting the Congolese government in the latest violence. Ntaganda, who remains at large, is accused of conscripting child soldiers in the Ituri region of eastern Congo from July 2002 to December 2003.

The ICC has set a provisional date of 12 January 2009 for a preliminary hearing to determine whether there is sufficient evidence for the trial of former Congolese rebel warlord and Vice-president Jean-Pierre Bemba. Bemba was arrested in Belgium in May. He first appeared before the Court in July when he was charged with leading Congolese rebels in a campaign of rape and torture in the Central African Republic in 2002 and 2003. He is the highest-profile suspect to date to be brought before the Court.

Related Chapters from Crimes of War: What the Public Should Know 2.0:

Congo, Democratic Republic of

Civilians, Illegal Targeting of

Child Soldiers

Related Links:

UN Press Release: DRC

United Nations

November 8, 2008

UN Accuses Rebels, Militia of War Crimes in Congo

The Associated Press

November 9, 2008

Arrest Warrant of Bosco Ntaganda