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On 28 March 2013, the United Nations Security Council approved the mandate of an “Intervention Brigade” with the mandate of “neutralizing armed groups” in the Great Lakes Region of the DRC (see Security Council Resolution 2098 – S/RES/2098 (2013).
The creation of the new Intervention Brigade was widely heralded as being the first time that the Security Council has created a force with a specifically ‘offensive’ rather than defensive mandate. Hervé Ladsous, head of UN peacekeeping, who spoke to journalists following the meeting, said:
“This, of course, is a very new tool because it means for the first time that there will be a peace enforcement capacity which will carry out targeted offensive operations, either in support of the Congolese army or unilaterally, in order to neutralize the armed groups, the negative forces that have created so much suffering over the years.”
But the prospect of the Intervention Brigade succeeding in its mission to neutralize the armed groups in the region has been greeted with scepticism. Why? This post provides links to analysis of the situation by regional experts and explores the legal framework in which the Intervention Brigade will be operating within.
What relationship will the Intervention Brigade have with MONUSCO?
The United Nations peacekeeping operations in the DRC have evolved since 1999, progressively assuming more responsibilities and tasks. The UN mission in the DRC has been known as the United Nations Organization Stabilization Mission in the Democratic Republic of Congo (MONUSCO) since July 2010 (see MONUSCO’s website here for an account of how the UN peacekeeping presence in the region has evolved over the years).
The Security Council resolution on 28 March 2013 creating the Intervention Brigade extended the mandate of MONUSCO in the DRC until 31 March 2014. The resolution made clear that the Intervention Brigade will be a part of the MONUSCO mission and will be under the direct command of the MONUSCO Force Commander.
MONUSCO currently has 19,157 total uniformed personnel (including the Intervention Brigade), 505 military observers, 1,393 police, 985 international civilian personnel, 2,902 local civilian staff and 594 United Nations Volunteers.
The Intervention Brigade will consist of three infantry battalions, one artillery and one Special force and Reconnaissance company with headquarters in Goma. The bulk of the troops forming the 3069– strong Intervention Brigade will come from Tanzania, South Africa and Malawi.
What is expected of such an Intervention Brigade?
The mandate of the Intervention Brigade is to carry out targeted offensive operations in support of the DRC authorities, to:
(i) prevent the expansion of armed groups;
(ii) neutralize these groups; and
(iii) disarm them in order to contribute to the objective of reducing the threat posed by armed groups on state authority and civilian security in eastern DRC.
The Intervention Brigade is authorized by the Security Council to act either unilaterally or jointly with the army of the DRC (FARDC).
Which armed groups will the Intervention Brigade be targeting?
The Security Resolution states that the Intervention Brigade’s neutralization mandate will apply to “all armed groups”. That being so, it seems likely from the context against which the Intervention Brigade was created that its main initial focus will be the M23 (see here for a good background piece on the events which precipitated the creation of the Intervention Brigade).
But the Security Council resolution also names a number of other armed groups at work in the region, including, the Forces Démocratiques de Libération du Rwanda (FDLR), the Alliance des Patriotes pour un Congo libre et souverain (APCLS) and the Allied Democratic Forces (ADF) in North Kivu, the Mayi-Mayi Gedeon and the Mayi-Mayi Kata-katanga in Katanga province and the Lord’s Resistance Army in Orientale Province.
It has been suggested that the Intervention Brigade’s decision about where – and how – to focus its efforts will be key to its success. It has also been argued that an over-concentration on the M23 may be a dangerous strategy for the Intervention Brigade to adopt (see here).
What is the legal framework in the Great Lakes area of the DRC?
The international humanitarian law which applies to the Great Lakes Region of the DRC is likely common Article 3 and customary international law. Although several armed groups in the region (e.g. the FDLR and M23) have enjoyed an entrenched territorial presence in the region, there is little indication that any of the groups currently hold sufficient territorial control for the threshold of Additional Protocol II to have been met.
But even if the threshold of APII were to have been met, it is questionable whether APII would apply to the Intervention Brigade. Article 1 of APII states that it will only apply to non-international armed conflicts which take place between a State’s “armed forces” and “organized armed groups”. As the Intervention Brigade does not form part of the DRC army, there is a persuasive argument that it will not be bound by APII (see Rogier’s post on the French intervention in Mali for further discussion of this debate).
It is noteworthy in this regard that the fact that the members of the Intervention Brigade are from third States does not transform the legal framework to that of an international armed conflict (see Gill & Fleck, p132). The Intervention Brigade has been deployed with the full support of the DRC government (see Security Council discussion of resolution and contribution by DRC here).
It is however arguable that the armed conflict between the FARDC and the M23 is an internationalized conflict. Since the M23 came into existence in April 2012, there have been numerous reports that Rwanda has been providing it with a high level of support in the form of weapons, recruitment, direct assistance and training (see blog post here for discussion of this finding by the UN Group of Experts on the DRC). If these reports are true, the level of control which it was alleged that Rwanda had over the M23 in the latter part of 2012 may have met the ‘overall control’ test set out by the Appeals Chamber in the Tadic case. Here, the Appeals Chamber of the ICTY said that an otherwise non-international armed conflict will be rendered ‘international’ in instances where a foreign State is exerting control of an overall character over the non-State actor. It clarified that overall control must comprise more than the mere provision of financial assistance or military equipment or training (see here, para 145).
But despite Rwanda’s support for the M23 in the 2012, there has been speculation that its assistance to the armed group may have waned in recent months. Such speculation was especially triggered when when Bosco Ntaganda (former leader of the M23) handed himself in to the US Embassy in Rwanda in March 2013. This puzzling act was widely interpreted as a sign that Rwanda had withdrawn its support for the M23 and was not prepared to provide him with a safe haven (see blog post here). Certainly, it is unclear what level of support Rwanda is currently offering the M23, if any.
What is the status of the Intervention Brigade under international humanitarian law?
Another interesting question to consider is whether the members of the Intervention Brigade will have civilian status in the same way as ordinary peacekeeping personnel.
The general position is that members of peace keeping operations are deemed to be accorded the same protection as civilians, for as long as they do not take direct part in hostilities (see ICRC study on customary international humanitarian law Rule 33 and commentary on p112). In cases where peacekeeping forces become involved in hostilities, the principles and rules of international humanitarian law will be applicable for the duration of their occurrence (Gill & Fleck, p141).
However, forces engaged in peace-enforcement operations are thought not to enjoy civilian protection (see ICRC study on customary international humanitarian law, Rule 33 and commentary on p114). On the basis that the members of the Intervention Brigade are in effect a ‘peace enforcement’ wing attached to an otherwise peace-keeping mission it seems reasonable to conclude that they will not enjoy civilian status.
Does the Intervention Brigade have any hope of success?
The authorization and formation of the Intervention Brigade in the Great Lakes region has been greeted with scepticism.
This scepticism comes mainly from analysts who ask how the Intervention Brigade is really going to make a difference. They point out that the MONUSCO troops were already operating under a Chapter VII mandate in the region which was capable of being interpreted to allow proactive military action designed to disrupt rebel activity (see here and here for analysis of their mandate).
Analysts also point out that if MONUSCO – with its 17,000 troops – was unable to prevent Goma from falling to the M23 in November 2012 (see here for this news story and here for MONUSCO’s unsuccessful attempt to stop their progress), why should the 3000-strong Intervention Brigade be able to make any difference? A better step, it has been suggested, might be to analyse how and why the MONUSCO mission has been failing in its mission to protect the civilians on the ground (see here).
The challenges facing the new Intervention Brigade are clearly legion. It has also been commented that the ability of MONUSCO – and the Intervention Brigade – to succeed in its mandate to bring peace to the region is severely constrained by its ability to rely on the DRC army as a ‘force for good’ in the region. The FARDC has repeatedly been criticized for low troop discipline and human rights violations against the civilian population (see here for analysis and here for a recent BBC story alleging that FARDC soldiers were ‘ordered to rape’ by their superior officers during their offensive against the M23).
Analysts also fear that military operations by the Intervention Brigade may provoke retaliatory attacks on civilians by the armed groups that they are targeting (see here). It has been noted in this regard that Uganda’s attempts to neutralize the LRA in 2008 resulted in violent reprisals against the civilian population (see here).
Interviews with local residents in Goma show that they fear the same. One is quoted as saying:-
“We have lost so much, lost our belongings and our children already. If the new [UN] force arrives we’ll just lose even more, we will die,” said a woman who would not give her name for fear of reprisals by M23. “We have an African proverb: when two elephants fight, the grass gets trampled”.
Human rights organisations have urged MONUSCO to take extra steps to protect the civilian population from the increased risks it will face as a result of the Intervention Brigade’s operations (see here).
Meanwhile, the M23 is gearing up for a fight saying that it is going to respond with “full force” against the UN’s Intervention Brigade. What will happen next is anyone’s guess…
The Handbook of the International Law of Military Operations, edited by Terry D. Gill and Dieter Fleck, OUP, 2010