Chapter 2: The armed conflicts in the DRC
2.3 Breaches of the rule of law
2.3.1 Breaches of the core principles of international law
One of most important characteristics of international law is its conventional aspect, however it is founded on a certain core of norms regarded as imperative (yus cogens) for all states. Amongst these sacrosanct principles of the law of nations are:
co-operation;
pacific settlement of disputes;
non-resource to force;
non-interference in the domestic affairs of a state; and
respect of territorial integrity.159
Those responsible for the conflict in the Congo seem to have ignored these principles, which everybody is presumed to know.
An analysis of the first war (1996-97) under the lens of international law reveals a flagrant violation of international law.
The wide engagement on Zairian territory of armies of foreign countries was obvious.
At first, it was hidden behind rebellion but later the presence of non-invited armies in the DRC was incontestable. The authors of the war took advantage of internal
158 A Mbata (note 114 above).
159 See articles 1 & 2 of Kellog-Briand Pact of 1929; Preamble and Article 2 (1)(3)(4) of the UN Charter, article 4 (b) (e) (f) (g) (i) (p) of the Constitutive Act of the African Union.
opposition to foment an aggressive war on behalf of a puppet rebellion. Therefore the integrity of the territory of a sovereign member of the UN was violated under the screen of an indifferent and politicized international community without any public condemnation or any official denunciation, even from the UN.160
That this was an act of aggression is clear. When the war erupted in 1996, Kabila did not appear to have his own independent, well-oiled resistance movement, which could deliver a plan for the political liberation of the entire country. The process which led him to take power was handled from outside. Most ordinary Congolese citizens didn‟t comprehend the different forces operating at regional level. The creation of the AFDL after the eruption of the war illustrates the involvement of external forces.161
General Kagame himself has admitted and boasted about the important role Rwanda played in the 1996-97 war.162
Essolomwa noted that the war was perceived initially and correctly as a Tutsi plot, as well as external aggression on the part of Rwanda, Burundi and Uganda supported by the Western powers.163
Even though internal opposition might have existed, external aggression played a significant role. There is a tendency in the countries of Great Lakes Region to consider that “their internal problems are generated by external interference.
However, what has occurred in the Congo is an invasion not just a case of interference”.164
The eruption of another war (1998-2002) of liberation or rectification a few months later clearly demonstrated the strategies of aggression and the unlawful nature of those wars.
160 T Ngoy (note 8 above; 173).
161 G Nzongola-Ntalaja (note 109 above; 225). He notes that the AFDL was created on 18 October 1996 at Lemera in South Kivu, roughly two months after the beginning of the attack from Rwanda.
162 G Nzongola-Ntalaja (note 109 above; 226).
163 T R Essolomwa (note 107 above; 5).
164 M Mamdani (note 147 above; 45-47).
Analyzing the complex reasons for Rwanda‟s engagement during the Second Congo War, Timothy Longman remarked on the sense of entitlement and invincibility, which marked the Rwandan military intervention. The blinding triumphalism within members of the RPF staff affected even Tutsi perceptions. Arrogance spurred the RPF to action, which resulted in horrendous consequences and fuelled the “anti-Tutsi sentiments, as well as for other Congolese who have supported the two rebellions.
This arrogance of power also contributed to the eventual break between Rwanda and Uganda, as ultimately RPF leaders could not usurp the role of puppet master that they rightly saw as their own”.165
Rwanda and Uganda argued that their motive was security of their borders. However, this argument cannot be advanced endlessly for, as Bahala166 notes, during the first war the Rwandan forces took control of all the Congo‟s territory, so that they could secure their borders if they really wanted to.
The legal argument of right of hot pursuit upon which Rwandan and Ugandan military intervention in the DRC was supposedly based is very debatable in international law and cannot justify such repetitive cross-border raids. Indeed the right of hot pursuit is related to law of the sea and not on the land. Article 111 (1) of the United Nations Convention on Law of the Sea of 10 December 1982 states: “The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State”. Arising from the violation of laws in maritime zones, the coastal States may rightly pursue and arrest that ship on the high seas. As Mbata asserts, the Rwanda and Uganda‟s use of „right of hot pursuit‟ was unfortunate and a misuse of the term.167 Dugard concludes that the right of “hot pursuit on land is not recognized by international law. If a state wishes to justify cross-border raids, it must do so in terms of the right of self-defence or possibly, reasonable reprisal action”.168 There is no use in analyzing in-depth reprisals because their illegality in international law is clear.
165 T Longman „The complex reasons for Rwanda‟s engagement in Congo‟ in J F Clark (ed The African stakes of the Congo war (2002) 129-139.
166 J B Bahala (note 148 above).
167 A Mbata (note 114 above; 241).
168 J Dugard et al. (note 48 above; 511).
As for the self-defence argument, or even so called „anticipatory self-defence‟, none of those arguments can “be used to justify the occupation of the Congolese territory, the exploitation of the Congolese natural resources, the commission of gross human rights violations and the establishment of a puppet government in Kinshasa under the false pretences of helping the Congolese people to establish democracy”.169
Indeed, with regards to the state of war in the DRC the UN Security Council adopted Resolution 1234 on 9 April 1999, in which it made a distinction between invited powers and non-invited powers and deplored the fact that combat was still going on.
The Resolution proclaimed that the presence of foreign states‟ armed forces in the DRC was incompatible with the principle of the UN Charter and requested those states to remove their forces, which were non-invited.
This UN Resolution did not use the term „aggression‟ to describe military action on the part of foreign armies against the DRC. However, the recognition that this was aggression was implicit in the Resolution. The use of foreign armies against the territorial integrity of a politically independent country was a flagrant violation of article 2 (2)-(4) of the UN Charter. Although the Security Council did not clearly recognize the aggression in terms of article 39 Chapter VII of the Charter, it remains evident that the element of aggression cannot be denied if we consider the relevant provisions of Resolution 3314 of the UN Assembly General of 14 December 1974.
Among the acts that this Resolution considered acts of aggression is the use by a State of its armed forces against the sovereignty, territorial integrity, or political independence of another state or in any other manner incompatible with the UN Charter.
The crime of aggression committed in the DRC by Rwanda, Uganda and Burundi‟s armed forces is obvious.
169 A Mbata (note 114 above; 241).
This was confirmed in the jurisprudence of the International Criminal Court in its recent decision relating to the DRC v Uganda case (ICJ, 2005), in which the Court condemned Uganda for its illegal military activity in the DRC.170
Aggression is a crime against peace and there is no doubt that it is the mother of all crimes. The collateral consequences of this illegal use of force are numerous and include inter alia grave violations of human right and international human rights law.