About the author(s):
Joshua Joseph Niyo
Dr. Joshua Joseph Niyo has recently completed a Swiss National Science Foundation Visiting Research Fellowship at the University of California Los Angeles (UCLA) School of Law. He was also formerly a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights and Assistant Lecturer at Uganda Christian University School of Law. He recently completed his PhD in International Law (magna cum laude) at the Graduate Institute of International and Development Studies in Geneva, Switzerland, with a research project focused on the normative, conceptual and contemporary considerations in defining the control of territory by armed non-state actors in armed conflict.
Introduction
The situation in the eastern part of the Democratic Republic of the Congo (DRC) continues to present complexity, both in the arena of international law, and of politics. Eastern DRC has witnessed largely sustained armed violence for the better part of two and a half decades, with the cyclical disappearance and re-emergence (and arguably, re-incarnation) of different armed non-state actors (ANSAs). However, the other major factor in the recurrent violent episodes in this region, has been the involvement of states – purportedly, directly and (or) indirectly. Certainly, it is difficult – in many instances – to distinguish between (armed) activities and the control of territory by ANSAs on their own, and ANSAs as agents of states. One would assert, that it is this phenomenon of “proxy engagement” that describes the nature of the involvement of the “March 23 Movement” – also known as the “M23” – in eastern DRC. Still, a counter argument would be that the M23 is a sufficiently organised entity to hold its own, and should not, therefore, be relieved from critical discussions (for example, about legal responsibility) when it comes to direct conduct attributable to them – particularly in areas they control.
This inherent tension is the focus of this two-part socio-political and legal commentary on the recent resurgence of violence in eastern DRC, generally attributed to the M23. With a primarily historical lens, Part I engages with the socio-political questions brought to the fore by the development of the M23 and its predecessors. Part II picks up the discussion with a focus on the current formation of the M23, and shifts to a legal evaluation of the situation, seeking to define the nature of proxy engagement, and its impact on the dynamics of compliance and accountability. Indeed, within the context of the M23 insurgency, the question about “who” is responsible seems interwoven in a labyrinth of re-incarnated identities of the group itself, as well as its ostensibly close affiliation with foreign states in the region.
Broader Historical and Socio-Political Context: The Congo Wars, Foreign States’ Involvement and the Upsurge of the M23 Forerunners
At the onset of the independence of the DRC in 1960, the country was plunged into a period of conflict and political instability known as the “Congo Crisis”, which lasted until 1965 when Joseph-Désiré Mobutu (Mobutu Sese Seko) ascended to the presidency. However, largely characterised as a period of economic decline, corruption, internal strife, and ethnic tensions – especially in the eastern part of the country, the subsequent Mobutu era kindled the establishment of multiple ANSAs, many in opposition to his leadership. (See, McNulty, 53-57) Of particular significance, was the Rwandan genocide in 1994, which had an even more adverse impact on the stability of eastern DRC. Essentially, it was the allegation by the post-1994 Tutsi-led Rwandan government that the genocide perpetrators – especially, independent Hutu extremist ANSAs known as Interahamwe – had found haven in eastern DRC, with the ostensible support of Mobutu. This informed the Rwandan invasion of the DRC in 1996, sparking-off the “First Congo War”, with the supposed support and involvement of Uganda, Burundi, and the “Alliance des Forces Démocratiques pour la Libération du Congo-Zaïre” (AFDL), among others – the latter being an ANSA formed in eastern DRC and led by Laurent-Désiré Kabila. (See also, McKnight, 2-3)
Consequently, with the defeat and overthrowal of Mobutu, and the ascension of Laurent Kabila to the presidency in 1997, it is argued that the hovering presence of both Rwanda and Uganda, presented a challenge for the new president’s legitimacy. Accordingly, when Laurent Kabila eventually revoked the DRC’s consent to Rwanda and Uganda (and other foreign forces) being in the country in July 1998 – a matter which informed the DRC’s case against Uganda in the International Court of Justice (ICJ) – a Tutsi-led rebellion erupted in eastern DRC. It is asserted that this rebellion was supported by Rwanda and Uganda and developed early in August 1998, into a new ANSA known as the “Rassemblement Congolais pour la Démocratie” (RCD). (Stearns, 32) With the inclusion of Burundi – as well, the RCD took control of a large part of the eastern DRC, basing its operations in Goma during what has been referred to as the “Second Congo War”. However, with the Lusaka Ceasefire Agreement signed by regional warring states in 1999, and several peace agreements in 2002 (two being bilateral between states) – especially the Global and All-Inclusive Agreement (which included ANSAs), a transitional government was put in place in 2003, under a new leader, Joseph Kabila (Laurent Kabila – his father – having been assassinated in January 2001). (See, as well, McKnight, 3)
Accordingly, three essential points can be distilled from the period running from the “Congo Crisis”, through to the two Congo wars: First, during this period, one witnesses the beginnings of the recurrent involvement of foreign states in conflict in the eastern part of the DRC. This involvement is somewhat multifaceted, because it ranges from direct involvement in armed conflict, to fighting alongside ANSAs with which they have similar motivations for conflict, to providing material support both to the development, and involvement of ANSAs in armed confrontations. Curiously, regional states also take prominence in the peace agreements involving conduct by ANSAs.
Second, this period unveils the unfortunate legacy of the 1994 genocide in Rwanda, which provides a continual motivation for the growth and evolution of ANSAs in the region. From the AFDL, to the RCD, the cause for the protection of Tutsi populations remained a central feature of the insurgency (among other motivations); an epoch of conflict that only seemed to change faces (AFDL to RCD; “First Congo War” to “Second Congo War”), but persisted in substance as the fundamentally the same, with the material support of the same foreign states.
Third, in addition to sustained conflict, the control of territory and establishment of bases by the ANSAs in the eastern part of the DRC, appeared to be a central feature in creating a buffer zone for the protection of Tutsi-populations, as well as for other related administrative and strategic interests of the ANSAs (and their backers). Notably, exploration of mineral wealth in Congolese soils, has been fronted as a major strategic interest for both the ANSAs and their foreign state benefactors – particularly Rwanda and Uganda. (See Final Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, S/2002/1146).
United Nations Photo is licensed under CC BY-NC-ND 2.0.
The Evolutionary Rise of M23 and its Control in Eastern DRC: Re-incarnation from RCD to CNDP to M23
The changing of faces, but persistence of the same objectives of insurgency, with – more or less – the same protagonists, became more apparent with the ANSAs established both from and after the RCD. With latent reluctance in some quarters towards the transitional arrangement and leadership under Joseph Kabila, a senior officer in the RCD, General Laurent Nkunda, established another ANSA known as the “Congrès national pour la défense du peuple” (CNDP) in the eastern DRC in December 2006. Unsurprisingly, the stated purpose for the insurgency now under CNDP, was to continue the fight on behalf of the Tutsi population, against the “Forces démocratiques de libération du Rwanda” (FDLR) – a Hutu-led ANSA active in the eastern DRC, allegedly opposed to ethnic Tutsi influence in the wider region, including in Rwanda. However, what was, conceivably, more unexpected, was that as an entity initially intended to be a brigade under the national forces, the CNDP rapidly developed into an independent outfit with significant territorial control in eastern DRC, eventually engaging in armed hostilities against the Congolese state forces, themselves. (See, Stearns, 25-31)
However, with new leadership subsequently (January 2009) under Bosco Ntaganda, CNDP was integrated into the Congolese state armed forces and continued the fight against the FDLR alongside Rwanda, who had been granted consent to pursue the ANSA in the DRC. (See, Stearns, 32-38) Pivotally, on March 23, 2009, the CNDP signed a peace treaty with the Congolese government, agreeing to become a political party in exchange for the release of its members detained by the state.
Yet, it is with the eventual fallout from this March 23 agreement with the CNDP, that we witness the emergence of the M23. On 4th April 2012, former CNDP fighters (now within the state forces of the DRC) mutinied against the government (as well as the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo, MONUSCO). As it were, this contingent of the state armed forces in the eastern DRC ruptured, for it was understandably arduous to maintain cohesion of various ANSAs of previous wars as part of the national army. Former CNDP fighters formed the “March 23 Movement” (M23), also known as the Congolese Revolutionary Army, apparently sponsored and supported by Rwanda and Uganda. The reasons cited for this mutiny were the allegedly poor conditions within the state armed forces, and the government’s ostensible unwillingness to implement the March 23, 2009, peace deal. The M23 took control of Goma in November 2012, effectively maintaining such control until it withdrew voluntarily at the beginning of December 2012. This negotiated withdrawal precipitated a United Nations brokered peace agreement on 24 February 2013 in Addis Ababa, among leaders of eleven African countries – including Rwanda and Uganda.
Nonetheless, M23 continued to engage in armed conflict, until it was defeated in November 2013, by the DRC armed forces aided by the deployment of a United Nations Security Council sanctioned “Intervention Brigade” within MONUSCO – with the mandate to carry out offensive operations against ANSAs like M23 in eastern DRC (See UNSC Resolution 2098/2013, paras. 9-12). With the end of the conflict at this stage, and the signing of peace declarations in Nairobi, Kenya on 12 December 2013 between M23 and the DRC government, many members of M23 found refuge in Uganda (unsurprisingly, in view of Uganda’s ostensible involvement in the conflict) – including the commander, Sultani Makenga.
Observably, what is particularly clear here, is that the ascension of the M23 as a re-embodiment of previous insurgency under the RCD and CNDP is indicative of the challenges involved in finding lasting solutions to: 1) The Hutu-Tutsi question in the wider great-lakes region of the continent; and, 2) The difficulty for the government in Kinshasa to maintain state cohesion, especially, where regional states still envision the need to be present in eastern DRC, directly or indirectly. Thus, the fissures that seem emblematic of the repeated attempts to merge members of ANSAs into the DRC state armed forces could, arguably, been seen as the mere outworking of these underlying dual challenges highlighted hereabove. This, as well, explains the fragility of the peace processes, which turn out to be breeding grounds for newer manifestations of older ANSA insurgencies, with apparently similar motivations for the resort to armed violence.
Conclusion
Certainly, the M23 is not the beginning of the story; it is – in a sense – only a continuation of some sort of tragic tale of re-incarnated evolutions. This broader context, consequently, brings to the fore the deeper and larger socio-political, as well as regional questions that the M23 represents. It is therefore important to “lift the veil” and examine these issues; an exercise which, ultimately, illuminates the especially committed involvement of foreign states – particularly, Rwanda and Uganda. It is, thus, inevitable, that proxy engagement will be the primary way in which conflict persists in eastern DRC, for as long as these deep-seated questions identified remain either partially, or wholly unresolved. In this regard, it is not surprising that we have witnessed the resurgence of violence by the M23; more surprising perhaps, is the fact that the face of this episode of the insurgency has remained the same – “M23” – and not some other formation or acronym, in keeping with historical trends. Part II of this two-part commentary addresses the current upsurge in more detail and focuses on the legal questions arising from the continual question in eastern DRC about proxy engagement.