peacekeepers' failure to protect civilians i

This article was downloaded by: [Masako Yonekawa] On: 02 June 2014, At: 23:49 Publisher: Routledge Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK

Global Change, Peace & Security: formerly Pacifica Review: Peace, Security & Global Change Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/cpar20

Critical analysis of spoilers and neighbouring states for peace implementation: peacekeepers' failure to protect civilians in eastern DR Congo a

Masako Yonekawa a

Graduate School of Social Design Studies, Rikkyo University, Japan Published online: 30 Apr 2014.

To cite this article: Masako Yonekawa (2014) Critical analysis of spoilers and neighbouring states for peace implementation: peacekeepers' failure to protect civilians in eastern DR Congo, Global Change, Peace & Security: formerly Pacifica Review: Peace, Security & Global Change, 26:2, 159-176, DOI: 10.1080/14781158.2014.911159 To link to this article: http://dx.doi.org/10.1080/14781158.2014.911159

PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. Terms &

Downloaded by [Masako Yonekawa] at 23:49 02 June 2014

Conditions of access and use can be found at http://www.tandfonline.com/page/termsand-conditions

Global Change, Peace & Security, 2014 Vol. 26, No. 2, 159–176, http://dx.doi.org/10.1080/14781158.2014.911159

Critical analysis of spoilers and neighbouring states for peace implementation: peacekeepers’ failure to protect civilians in eastern DR Congo Masako Yonekawa*


Graduate School of Social Design Studies, Rikkyo University, Japan Using Stephen J. Stedman’s concept of spoilers as the main analytical framework, this paper offers insights into the failure of the United Nations peacekeeping mission in terms of civilian protection for a lengthy period in eastern Democratic Republic of the Congo. This failure arises not only from peacekeepers’ failure to fully analyse the ambiguous status and relationship of spoilers and neighbouring states that are hostile to the peace process but also the United Nations’ and peacekeepers’ continuing support of spoilers and neighbouring states in three areas of implementation: military integration, military operations, and complacency regarding the chronic culture of impunity for key spoilers. Such support calls into question the neutrality of mediators and of the United Nations. The vicious cycle of violence created by spoilers and neighbouring states is likely to continue unless the United Nations develops appropriate preventive and proactive measures. Keywords: DR Congo; impunity; protection of civilians; Rwanda; spoiler; United Nations peacekeepers

The failure of the UN to prevent genocide in Rwanda and Srebrenica in the 1990s, which led to the deaths of about a million people in total, has heightened the need for reassessment of the implementation of the civilian protection mandate of the UN in regard to peacekeeping operations.1 Although protection of civilians is an obligation of the state, when states are unable or unwilling to protect their own citizens the United Nations Security Council (UNSC) can extend the mandate of its peacekeeping operations to include civilian protection. A key step in this direction followed a statement issued by the UNSC in 19992 which led to the adoption of resolutions on protection of civilians in 1999 and 2000.3 These resolutions emphasized, among other things, the importance of implementing preventive measures to resolve conflicts4 and the responsibility of states to end impunity and to prosecute the parties responsible for serious crimes.5 Along the same lines, the 2000 Brahimi Report stated that ‘peacekeepers … who witness violence against civilians should be presumed to be authorized to stop it’.6 After more than 10 years of issuance of such statements by the UNSC, some peacekeeping operations initiated the inclusion of civilian protection in their mandates. In the recent literature, this issue of civilian protection in UN peacekeeping operations has grown in importance in light of the failure of the implementation of such a mandate in the ongoing conflict *Email: [email protected] 1 See UNSC, S/PRST/1999/6, February 12, 1999. 2 Ibid. 3 UNSC, S/RES/1265, September 17, 1999; UNSC, S/RES/1296, April 19, 2000. See also UNSC, S/1999/957, September 8, 1999. 4 The term conflict is used in this paper to signify armed conflict. 5 UNSC, S/RES/1265, para. 3, 6. 6 UN General Assembly Security Council, A/55/305-S/20 00/809, August 21, 2000, para. 62 (emphasis added). © 2014 Taylor & Francis


160

M. Yonekawa

in eastern Democratic Republic of the Congo (DRC). Since its deployment there, the UN Organization Mission in the DRC (MONUC)7 has had a Chapter VII mandate to protect civilians who are under imminent threat of physical violence.8 Its mandates gradually became more robust following a series of high-profile protection failures, and in 2008 the protection of civilians and of humanitarian and UN personnel became MONUC’s primary mandate for the first time.9 Despite MONUC’s reinforced mandate, eastern DRC has experienced a succession of wars since the mid-1990s, and the resulting human toll has reached historic levels. For instance, more than 5.4 million have died there since 1998.10 This represents the largest number of casualties in a single conflict since the end of World War II. In addition, the number of internally displaced persons (IDP) in eastern DRC reached 2.7 million at the end of 2012, the highest number in all of Africa,11 and widespread rape has been committed against women and men in this area, even in places where peacekeepers are deployed. Not surprisingly, some observers have placed the blame for many of these deaths squarely on the shoulders of the peacekeepers,12 as they have failed to intervene in the massacre and mass rape occurring in their fields of operation.13 These failures in protecting civilians raise the question: why have peacekeepers been unable to protect civilians for a lengthy period in eastern DRC? Some studies have questioned the extent and vagueness of robust peacekeeping14 a culture of dominance of international peacebuilders which failed to address the local causes of violence.15 Other analyses have concluded that conceptual and institutional gaps in civilian protection remain, and that noncombatant civilians cannot easily be distinguished from combatants on the ground.16 Additional pertinent factors include the contradictory nature of the mandate17 and the lack of a common definition or a clear understanding of civilian protection on the part of the various actors involved.18 In the DRC case in particular, it has been observed that prioritization of resources and costs associated with the mandate of this large peacekeeping operation19 has not helped when it comes to the protection of civilians.

7 8 9 10

11 12 13 14 15 16 17 18

19

MONUC was renamed UN Organization Stabilization Mission in the DRC (MONUSCO) in 2010. UNSC, S/RES/1291, February 24, 2000, para. 8. UNSC, S/RES/1856, December 22, 2008, para. 6. International Rescue Committee, ‘IRC Study Shows Congo’s Neglected Crisis Leaves 5.4 Million Dead’, http://www.rescue.org/news/irc-study-shows-congos-neglected-crisis-leaves-54-million-dead-peace-deal-n-kivuincreased-aid–4331 (accessed August 2, 2012). This number covers the period 1998–2007 only. It is assumed that the total death toll is at least 6 million if the numbers for 1996–98 and 2007–present are included. The majority died from nonviolent causes such as diseases and malnutrition. Internal Displacement Monitoring Centre, ‘Internal Displacement in Africa’, http://www.internal-displacement.org/ africa (accessed June 30, 2013). Thomas Turner, The Congo Wars: Conflict, Myth and Reality (London: Zed, 2007), 158. See UN Joint Human Rights Office and MONUSCO, Report on Human Rights Violations Perpetrated by Soldiers of the Congolese Armed Forces and Combatants of the M23 in Goma and Sake, North Kivu Province, and in and around Minova, South Kivu Province from 15 November to 2 December 2012, May 2013. Thierry Tardy, ‘A Critique of Robust Peacekeeping in Contemporary Peace Operations’, International Peacekeeping 18 (2011): 152–67; Denis M. Tull, ‘Peacekeeping in the Democratic Republic of Congo: Waging Peace and Fighting War’, International Peacekeeping 16 (2009): 215–30. Séverine Autersserre, The Trouble with the Congo: Local Violence and the Failure of International Peacebuilding (New York: Cambridge University Press, 2010), 9. Mary Kaldor, New and Old Wars: Organized Violence in a Global Era (Redwood City, CA: Stanford University Press, 2007), viii. Janine N. Clark, ‘UN Peacekeeping in the DRC: Reflections on MONUSCO and its Contradictory Mandate’, Journal of International Peacekeeping 15 (2011): 363–83. Benjamin de Carvalho and Jon H. Sande Lie, ‘Chronicle of a Frustration Foretold? The Implementation of a Broad Protection Agenda in the United Nations’, Journal of International Peacekeeping 15 (2011): 341–62; Victoria Holt and Glyn Taylor with Max Kelly, Protecting Civilians in the Context of UN Peacekeeping Operations: Successes, Setbacks and Remaining Challenges (OCHA/DPKO Jointly Commissioned Study, November 2009), 6–7. Patrick Cammaert and Fiona Blyth, The UN Intervention Brigade in the Democratic Republic of the Congo (New York: International Peace Institute, 2013), 2; Paul Williams, Enhancing Civilian Protection in Peace Operations: Insights from Africa (Washington, DC: National Defense University Press, 2010), 21–4.


Global Change, Peace & Security

161

While all these arguments are valid, in the DRC case little scholarly attention has been paid to spoilers and neighbouring states that are hostile to the peace process. Their roles have not been adequately studied and therefore call for greater attention.20 In fact, spoilers and neighbouring states are the main sources of failure in peace implementation,21 and this has had an enormous effect on civilian protection. Using Stephen J. Stedman’s concept of spoilers as the main analytical framework, this paper contributes to our understanding of possible avenues for a sustained resolution of crises such as the one in eastern DRC. The main argument of this paper is that MONUSCO’s long-term failure to protect civilians is due to the fact that the roles of spoilers, neighbouring states, and their proxies in the conflict have largely been ignored. As a result, in the process of implementing civilian protection, MONUSCO has – intentionally or otherwise – continued in its collaboration with the army of the Congolese government (FARDC)22 in the form of military action and in its complacency regarding the culture of impunity. The present paper makes the argument that the main spoilers in this conflict are proxies for neighbouring states, and that these spoilers hide behind their highly blurred role and identity in order to perpetuate violence in eastern DRC, while the UN has remained powerless and has used its neutrality as a justification for retreat. The ambiguities inherent in identifying the true spoilers have also contributed to the culture of impunity. This paper first gives a brief overview of spoilers and neighbouring states as well as of the Congo wars. It then analyses the integration of spoilers with the military and its operations, and the historic impunity issue, as all the main spoilers have served in armed groups and have remained unpunished. After examining the ambiguous status and relationship of the main spoilers, the paper concludes with some avenues for strengthening the protection of civilians.

Analysis of spoilers and their relationship with neighbouring states Stedman has defined spoilers as the ‘leaders and parties who believe that peace emerging from negotiations threatens their power … and interests, and use violence to undermine attempts to achieve it’.23 Spoilers have two positions vis-à-vis a peace process: inside spoilers signal a willingness to implement a settlement but fail to achieve it, and outside spoilers are excluded from the peace process and use violence as a strategy toward undermining peace.24 Also, spoilers can be classified according to type – as limited, greedy, or total, depending on the degree of their commitment to achieve their goals. Based on these factors, appropriate strategies for spoiler management can be identified, such as coercion.25

Debate on ‘spoilers’ and their relationship with neighbouring states Since Stedman’s definition of spoiler appeared in 1997, several suggestions have been made, especially in regard to widening of its scope. These suggestions involve inclusion of state spoilers 20 Kristine Höglund and I. William Zartman, ‘Violence by the State: Official Spoilers and Their Allies’, in Violence and Reconstruction, ed. John Darby (Notre Dame, IN: University of Notre Dame Press, 2006), 11–31; Michael E. Brown, ‘The Causes and Regional Dimensions of Internal Conflict’, in The International Dimensions of Internal Conflict, ed. Michael E. Brown (Cambridge, MA: The MIT Press, 1996), 571–602. 21 Stephen J. Stedman, ‘Policy Implications’, in Ending Civil Wars: The Implementation of Peace Agreements, ed. Stephen J. Stedman, Donald Rothchild, and Elizabeth M. Cousens (Boulder, CO: Lynne Rienner Publishers, 2002), 666. 22 FARDC stands for Forces Armées de la République Démocratique du Congo. Before June 2003, the name of this entity was Forces Armées Congolaises (FAC). This paper uses FARDC throughout, regardless of the year. 23 Stephen J. Stedman, ‘Spoiler Problems in Peace Processes’, International Security 22 no. 2 (Fall 1997): 5. 24 Ibid., 8–9. 25 Ibid., 14–17.


162

M. Yonekawa

rather than just non-state actors;26 emphasis on tactics used by spoilers, including nonviolent tactics, rather than on the classification of the type of spoiler;27 and extension of the spoiling timeframe up to the peacebuilding period, rather than limiting it to the peacemaking period, which is just the initial phase of peace implementation.28 State actors and the UN tend to identify as spoilers only rebel groups and former government forces that took part in the fighting but later became party to peace agreements. However, violence perpetrated by the state or its allies deserves the same amount of attention, as these entities are also primary actors in the conflict – actors that control arms, information, and propaganda.29 As the concept of spoiler can be subjective,30 depending on who identifies the spoilers all parties, both non-state actors and state actors, should be considered as potential and greedy spoilers, even though only the more powerful ones tend to become manifest threats.31 The first step in spoiler management should be identification of spoilers’ use of tactics.32 These should include both violent and nonviolent tactics,33 as the latter can be just as harmful as the former. Nonviolent tactics can be strategic and wide-ranging, such as gaining recognition, time, and military and material resources; avoiding sanctions; securing a lull in the fighting to improve their position on the battlefield;34 and refusing to demobilize.35 A peace process can be spoiled either in order to destroy it or to shape the negotiation process, as it can undermine some groups’ rights, privileges, or access to resources.36 However, even the shaping of the negotiation can be manipulative, as spoilers keep their threat hidden and prolong the violent conflict or negotiation process as long as it promises to give them an advantage over their adversary.37 Violence is indeed profitable, and its continuation can be more crucial than military ‘victory’.38 To be identified as such, spoiling should cover the entire peace implementation process including the pre-peacemaking period. In reality, it is often difficult to distinguish the (pre-) peacemaking period from the ‘post-conflict’ peacebuilding period, especially if there are repeated relapses of conflict or repeated enactment of peace agreements. In the course of conflict, serious violations of the human rights of civilians can occur, and such violations are one of the main characteristics of war in recent times. The aggressors (spoilers) often go unpunished, under the pretext of ‘peace first, justice later’, which in reality may bring neither justice nor peace. Thus, in order to aim for a sustainable peace that includes protection of civilians, the peace implementation process should be based on justice by dealing adequately with past atrocities and ending the culture of impunity. 26 Höglund and Zartman, ‘Violence by the State’; Kelly M. Greenhill and Solomon Major, ‘The Perils of Profiling: Civil War Spoilers and the Collapse of Intrastate Peace Accords’, International Security 31, no. 3 (Winter 2006/07): 7–40. 27 Greenhill and Major, ‘The Perils of Profiling’. 28 Edward Newman and Oliver Richmond, ‘Obstacles to Peace Processes: Understanding Spoiling’, in Challenges to Peacebuilding: Managing Spoilers During Conflict Resolution, ed. Edward Newman and Oliver Richmond (Tokyo: United Nations University, 2006), 1–20. 29 Höglund and Zartman, ‘Violence by the State’, 27–8; John Darby, ‘Post-Accord Violence in a Changing World’, in Violence and Reconstruction (see note 20), 145. 30 Newman and Richmond, ‘Obstacles to Peace Processes’, 5. 31 Ibid. 32 Ibid.; Greenhill and Major, ‘The Perils of Profiling’, 8. 33 Wendy Pearlman, ‘Spoiling Inside and Out: Internal Political Contestation and the Middle East Peace Process’, International Security 33, no. 3 (Winter 2009): 79–109; Desirée Nilsson and Mimmi Söderberg Kovacs, ‘Revising an Elusive Concept: A Review of the Debate on Spoilers in Peace Processes’, International Studies Review 13 (2011): 606–26. 34 Marie-Joëlle Zahar, ‘Reframing the Spoiler Debate in Peace Processes’, in Contemporary Peacemaking: Conflict, Peace Processes and Post-War Reconstruction, ed. John Darby and Roger Mac Ginty (New York: Palgrave MacMillan, 2003), 162–3; Newman and Richmond, ‘Obstacles to Peace Processes’, 6. 35 Michael G. Findley, ‘Spoiling the Peace or Seeking the Spoils? Civil War Outcomes and the Role of Spoilers’ (PhD diss., University of Illinois at Urbana-Champaign, 2007), 10. 36 Nilsson and Kovacs, ‘Revising an Elusive Concept’, 613. 37 Newman and Richmond, ‘Obstacles to Peace Processes’, 6. 38 Edward Newman, ‘“New Wars” and Spoilers’, in Challenges to Peacebuilding (see note 28), 134–50.


163

Spoilers receive support from external actors such as diaspora groups, states, political allies, and multinational corporations.39 Neighbouring states can be bad neighbours, whose deliberate, malicious actions are responsible for the spread of conflict,40 such as in eastern DRC. Neighbouring states may take two types of action with respect to internal conflicts in other countries: intervention and invasion. The aim of an intervention can vary widely, between self-defence (protection of their own ethnic groups involved in the conflict) at one extreme and opportunism (protection of their political, economic, and military interests) at the other.41 A prime example of opportunistic intervention is invasion, where neighbouring states engage in proxy wars by supporting rebel forces ‘while trying to maintain an innocent public façade’.42 Much like spoilers, neighbouring states use a number of tactics which undermine peace processes, such as the launching of military assaults without making their intentions visible.43


Spoilers in the context of the conflict in the DRC The main spoiler in the DRC conflict was considered by the UN and the Rwandan government to be the Interahamwe, the genocidaires that formed a military–political group known as Forces Démocratiques de Libération du Rwanda (FDLR) in 2000. The Interahamwe brought insecurity to both eastern DRC and Rwanda by threatening refugees and the general population and by attacking Rwanda from across the border (in the DRC) from 1994 to 1996. Thus, the FDLR has been labelled as a ‘negative force’ by Rwanda and the UN since the 1999 Lusaka Ceasefire Agreement. Another rebel group known as the Movement of 23 March (M23), the most powerful rebel group in eastern DRC from 2012 until its ‘defeat’ in late 2013, was also named as a ‘negative force’ by the UN.44 However, this practice of demonizing certain actors dubbed extremists and often excluding them from the peacebuilding process is dangerous because of its capacity for distraction of people’s attention from the presence of manifest spoilers. These manifest spoilers in the DRC conflict were, according to Nina Wilén, not only M23 but also the governments of the DRC and Rwanda.45 What she failed to point out is that M23 is a mere proxy for Rwanda and that M23 and the DRC government itself are strongly linked to Rwanda and share common objectives. Thus, the main perpetrators of spoiling activities in the DRC are not just internal spoilers, but rather the neighbouring states, especially Rwanda – under the present regime Rwandan Patriotic Front (RPF). Regarding violent and nonviolent spoiler tactics engaged in by Rwanda, which is not a state with an army, but rather ‘an army with a state’ run by a military regime,46 RPF and its allies have been mostly involved in large-scale atrocities. These amount to war crimes and crimes against humanity, and therefore need greater attention. Regarding nonviolent tactics, the RPF and its allies have used tactics mentioned above, such as violating peace and ceasefire agreements. Other interventions include Rwanda’s ‘closure of the conflict scene’ for information management;47 Rwanda’s possible attempt to interfere the UN from investigating, as well as Rwanda’s attempt with the US and Uganda to prevent the UN from publishing reports that condemned alleged human rights violations on the part of Rwanda and Uganda. HRW, ‘DR Congo: Newman and Richmond, ‘Obstacles to Peace Processes’, 4. Brown, ‘The Causes and Regional Dimensions’, 571, 575, 591. Ibid., 596–7. Ibid., 598. Ibid., 597–9. UN Secretary-General, SG/2188, AFR/2453, September 27, 2012. N. Wilén, ‘Identifying the Spoilers in the Security Sector Reform: Disarmament Demobilisation and Reintegration Process in the Congo’, Defense and Security Analysis 29 (2013): 117–27. 46 Filip Reyntjens, Political Governance in Post-Genocide (New York: Cambridge University Press, 2013), 71. 47 Ibid., 190.

39 40 41 42 43 44 45


164

M. Yonekawa

Q & A on the United Nations Human Rights Mapping Report’, October 1, 2010; Filip Reyntjens and René Lemarchand, ‘Mass Murder in Eastern Congo, 1996-1997’, in Forgotten Genocides, Oblivion, Denial and Memory. ed. Lemarchand (Philadelphia: University of Pennsylvania Press, 2011), 33; and Chris McGreal, The Guardian, ‘Obama accused of failed policy over Rwanda’s support of rebel group’, 11 December 2012; “and even use of threats to the UN to withdraw its own peacekeepers” referring to Rwandan and Ugandan troops from Darfur and Somalia respectively. As a result, the RPF and its allies were effectively granted total impunity. Worsening and complicating the situation is the fact that these bad neighbours attempt to act as mediators in the DRC conflict at the same time. Furthermore, FARDC officers and soldiers, like those of many other rebel groups, are unprofessional, undisciplined, and untrained, with no capacity or will to protect civilians, and some have engaged in serious abuse or war crimes over an extended period of time. As a result, MONUC’s two mandates became contradictory, in that after the 2006 election in the DRC its exclusive mission of protecting civilians was expanded to include assistance to the Congolese government for the purpose of providing such protection.48 In addition, MONUC had a mandate to assist the FARDC in the reform of the security sector. Based on these arguments, Stedman’s definition of spoilers should incorporate the following in order to include the highly violent nature of conflicts such as the one in the Congo: ‘states and non-state actors who may be proxies for bad neighbours and other external actors and use various kinds of tactics, in particular large-scale violence targeting civilians, to undermine the peace process and contribute to prolongation of the conflict’. In the case of eastern DRC, with various spoilers including those with a blurred background, the mandate to peacekeepers and their operations have already transformed MONUSCO into parties to the conflict.49 Therefore, there is an urgent need for effective attempts on the part of the UNSC to create a friendly environment for civilian protection.

Background on wars in eastern Congo50 Eastern DRC, especially in the North and South Kivu provinces, has been the site of endless cycles of conflict involving Rwanda. The abundance of mineral and agricultural resources in the east of DRC and Rwanda’s Social Revolution in 1959 were among the major factors contributing to the Rwandan migration, of members of both the Hutu majority group and the Tutsi minority group, into eastern DRC. The Congolese population developed a resentment for persons of Rwandan origin (i.e. of Rwandaphones) because of their increasing influence on the economy and the political sector. Therefore, the Congolese national law was changed on a few occasions to prevent the Rwandaphone community from gaining Congolese citizenship and the attendant right to land ownership. As a result, ethnic tensions, nationality-based struggles, and land competition added to the fragile conditions in the Kivu provinces at the onset of the Rwandan crisis in the early 1990s. The rebel group RPF launched a military invasion into Rwanda from Uganda in 1990. This invasion was followed by a civil war, which culminated in the 1994 Rwandan genocide. Hutu extremists and the former army of the Rwandan government, both of which were involved in the genocide, fled to eastern DRC by taking refugees hostage at the time that the RPF assumed power. 48 UNSC, S/RES/1756, May 15, 2007, para. 2. 49 Philip Alston, ‘Press Statement by Professor Philip Alston, UN Special Rapporteur on Extrajudicial Executions. Mission to the DRC, 5–15 October 2009’, October 15, 2009, 7. 50 Among several foreign rebel groups active in eastern DRC, this paper focuses only on Rwandan rebels and the incidents that took place along the Rwandan border.



165

Following these events, the Rwandan civil war spilled over into eastern DRC, which worsened the ethnic tension that already existed locally and across the border. From the perspective of the RPF, this tension represented both an opportunity and a potential danger: an opportunity to pursue Hutu soldiers, based on the claim that the RPF had to defend the Banyamulenge (the Congolese Tutsi) from the potential threat of genocide following the Rwandan genocide, and a danger that the Rwandaphone population in the DRC could become victims of violence in this process. Therefore, the Rwandan (RPF) army planned for an invasion into eastern DRC in October 1996. The Ugandan army, which had maintained a strong link with the RPF ever since the latter assisted in the takeover of power by Ugandan President Yoweri Museveni in 1986, joined in this effort. For this invasion, Rwanda and Uganda needed cover, which was made possible by the inclusion of certain Congolese, then led by Laurent D. Kabila, in the fight to remove President Mobutu Sese Seko from office. A group known as Alliance des Forces Démocratiques pour la Libération du Congo–Zaïre (AFDL) was formed, and the Rwanda-leaning Banyamulenge played a key role in that group, but in essence the Rwandan army had already invaded eastern DRC just before the establishment of the AFDL.51 After the AFDL overthrew President Mobutu in May 1997, its spokesperson, Laurent Kabila, declared himself president of the DRC. His backers, Rwanda and Uganda, expected him to carry out their common agenda, such as elimination of the residual Hutu extremists and resolution of the issue of citizenship for the Rwandaphone population, who had become stateless persons as a result of the change in the nationality laws. However, Rwanda and Uganda eventually came to feel that they had been deceived by a noncompliant Laurent Kabila and started considering plots to replace him.52 In July 1998, Kabila expelled senior AFDL Rwandan officers in the FARDC who had attempted an assassination plot against him.53 Subsequently, in August 1998, Rwanda and Uganda launched an attack against the DRC government under the guise of forming the Rassemblement Congolais pour la Démocratie (RCD). The two countries justified this attack in eastern DRC by claiming that they were securing their national borders. Nevertheless, Rwanda in particular had an economic interest: the exploitation of natural resources.54 The Rwandan and Ugandan armies largely benefited from exploiting diamonds during their control and battles in Kisangani between 1999 and 2002, which resulted in the killing of civilians.55 Both armies occupied eastern and northern DRC until they ‘officially’ withdrew in 2002. Laurent Kabila was assassinated in 2001, and his son, Joseph Kabila, became president. He sped up the peace process that culminated in 2002 with the Inter-Congolese Dialogue and the enactment of peace agreements, including the Global and All Inclusive Accords, which paved the way for the formation of a transitional government in 2003, when the Congo War ‘officially’ ended. However, armed conflict in the east continues to date, with frequent changes of armed groups. Apart from the FDLR, which was founded with the participation of some Congolese, the RPF supported the formation of a rebel group known as Congrès National pour la Défense du Peuple (CNDP) in 2006, and of M23 in 2012. In November 2013, M23 declared military defeat of the FARDC, and in December of that year M23 and the government of the DRC signed a declaration to end M23’s rebellion. 51 Colette Braeckman, ‘La Campagne Victorieuse de l’AFDL’, in Kabila Prend le Pouvoir, ed. Colette Braeckman et al. (Brussels: GRIP, 1998), 69. 52 Bucyalimwe M. Stanislas, ‘L’Administration AFDL/RCD au Kivu (Novembre 1996–Mars 2003): Stratégie et Bilan’, in L’Afrique des Grands Lacs: Annuaire 2002–2003, ed. Stefaan Marysse and Filip Reyntjens (Paris: L’Harmattan, 2003), 171–205, http://www.ua.ac.be/objs/00111792.pdf (accessed August 18, 2012). 53 Ibid. 54 John F. Clark, ‘Museveni’s Adventure in the Congo War: Uganda’s Vietnam?’, in The African Stakes of the Congo War, ed. John F. Clark (New York: Palgrave Macmillan, 2002), 145–65. 55 Human Rights Watch (HRW), War Crimes in Kisangani: The Response of Rwanda-Backed Rebels to the May 2002 Mutiny 14, no. 6 (August 2002): 5.

166

M. Yonekawa

MONUSCO’s support of FARDC’s military integration In order to understand the background of the FARDC, which includes some spoiler groups, the process by which Congolese rebel groups from the Kivu provinces were integrated into the national army must be analysed. Originally, the 2002 Global and All Inclusive Accords on a transition government in the DRC established the objective of creating a restructured, integrated national army that included all the previously hostile rebel forces.56 The 2003 Final Act of the Inter-Congolese Political Negotiations urged the immediate withdrawal of all foreign forces from DRC territory and stated that ‘the mechanism … shall be responsible for identification of nationals who shall constitute the new army’;57 however, the Rwandan army did not fully withdraw, and the exact identity of the referenced nationals remained vague.


Failure of the military integration The creation of the newly integrated FARDC was planned to take place before the 2006 national elections. However, the military integration processes, facilitated by MONUC, ended up failing, and these processes created an environment of confusion and distrust and put civilians at risk. During the first integration attempt (the ‘brassage’ process), soldiers were required to undergo training and be deployed to provinces where they had not previously fought. Laurent Nkunda, a RCD general who was named general of the FARDC in 2004, was assigned responsibility for the newly created integrated brigades despite his long record of crimes against humanity. He was to integrate his troops into the FARDC in order to weaken the FDLR and improve the DRC’s relations with Rwanda.58 However, Nkunda, a Tutsi, refused to be deployed anywhere other than in the Kivu provinces, because of discrimination against the Tutsi outside Kivu provinces.59 Thus, after establishing the CNDP in December 2006, Nkunda made a deal with the head of the Congolese air force, General John Numbi, and the Chief of Staff of the Rwandan army, General Kabarebe (the present Rwandan Minister of Defence). Kabarebe, under whom both Nkunda and Numbi had served in the AFDL, was assigned as a mediator by Rwanda.60 Nkunda and Numbi secretly agreed upon an integration process called ‘mixage’, which allowed Nkunda’s RCD troops to mix with the FARDC in North Kivu and be deployed locally. This mixage prompted the public and local authorities to strongly denounce the government’s prior treatment of Tutsi soldiers.61 This unsuccessful operation of the mixage brigades against the FDLR led to a massive outflow and a massacre of civilians. With the FARDC’s announcement that all soldiers must undergo brassage, which meant the failure of mixage, mixage came to an end. In January 2009, one important incident took place. The Chief of Staff of the CNDP, Ntaganda, took over the leadership of that group by ousting General Nkunda. Then, under pressure from General Kabarebe, the CNDP signed a declaration of cessation of hostilities, which included a statement on integration of the CNDP into the FARDC for the purpose of disarming the FDLR through joint Rwandan–Congolese military operations (as discussed below). Neither of the existing approaches to military integration (brassage and mixage) was questioned, and generals Kabarebe and Numbi both observed this declaration.62 56 ‘Global and Inclusive Agreement on Transition in the DR Congo: Inter-Congolese Dialogue – Political Negotiations on the Peace Process and on Transition in the DRC’, December 16, 2002. 57 Inter-Congolese Political Negotiations: The Final Act, April 2, 2003, Resolution No. DIC/CDS/02, 28, Resolution No. DIC/CDS/03, 30–31. 58 International Crisis Group (ICG), Congo: Bringing Peace to North Kivu, no. 133, October 31, 2007, 7. 59 HRW, DRC: Renewed Crisis in North Kivu, October 23, 2007, 10. 60 ICG, Congo: Bringing Peace, 9. 61 HRW, Renewed Crisis, 9, 11. 62 HRW, ‘You Will Be Punished’: Attacks on Civilians in Eastern Congo, December 13, 2009, 41.



167

This was followed by a formal peace agreement between the DRC government and the CNDP, which was signed on 23 March 2009. The agreement stipulated, among other things, the transformation of the CNDP into a political party, its integration into the FARDC, and, more importantly, CNDP’s proposal of a ‘model for the delimitation of administrative boundaries’.63 In the end, this agreement was ‘merely an after-thought to formalize a bilateral deal between Kinshasa and Kigali which was predic[ated] on … affording the latter with immense influence in the Kivus in exchange for arresting Nkunda, and forcing the rest of the CNDP to join the national army under the leadership of Ntaganda’.64 In other words, this agreement was a de facto surrender of territory to Rwanda and Uganda through the CNDP. This military integration failed in April 2012, when (former) CNDP members defected from the FARDC, formed M23, and fought against the FARDC. This was done under the pretence of noncompliance with the 2009 agreement on the part of the DRC government. However, the founding of M23 was in fact related to the sentence imposed by the ICC on a former rebel leader in March 2012. This conviction increased international pressure on the DRC government to hand over Ntaganda, who was accused along with that rebel leader and indicted in 2006.65 In response to these developments, the Tutsi community in eastern DRC warned that the arrest of Ntaganda could have detrimental consequences for the region.66

Objectives of the military integration The failure of these attempts at integration can be attributed to two sources of tension. First, after the integration, the former rebel groups did not have the same degree of responsibility as the members of the FARDC; instead, they maintained parallel chains of command by developing their identities and loyalties based on their ethnic groups, places of origin, or the leadership of their original rebel group or militia.67 Thus, even after integration occurred, the RCD and the CNDP, which were the strongest of the Congolese rebel groups, maintained parallel administration with the FARDC in order to protect their interests.68 The second and more important source of tension between Rwandans, Rwandaphones, and Congolese in the FARDC was the infiltration of Rwandans into the FARDC, which was allowed by the military integration process. As a result, Ntaganda was able to station his loyal officers in strategically critical and mineral-rich areas throughout the Kivus,69 which led to the eventual reinforcement of Rwandan control in the region. Internally, the CNDP appears to have only pretended to integrate into the FARDC,70 while in fact ‘it was the CNDP that had absorbed the FARDC and not the other way round’.71 This was precisely the aim of military integration for both the DRC and Rwanda. As discussed below, President Joseph Kabila is said to be of Rwandan background, is close to the current Rwandan president, Paul Kagame, and, it can be argued, has been assisting Rwanda in achieving its goals. In order for Rwanda to reinforce its control in eastern DRC, it was necessary to demoralize the FARDC soldiers. In fact, the broken nature of the FARDC is directly related to the government’s 63 ‘Peace Agreement between the Government and CNDP’, March 23, 2009, Article 8.2. 64 Steve Hege, ‘The Devastating Crisis in Eastern Congo, House Committee on Foreign Affairs’, Subcommittee on Africa, Global Health, and Human Rights, December 11, 2012, 4. 65 In July 2012, the ICC issued a second warrant, for Ntaganda’s participation in war crimes and crimes against humanity in the north-east. 66 ‘Letter from the Tutsi Community against the Arrest of General Ntaganda [15 March 2012]’, UNSC, S/2012/348, June 21, 2012, 88–92. 67 ICG, Security Sector Reform in the Congo, no. 104, February 13, 2006, 14. 68 UNSC, S/2011/738, December 2, 2011, 3. 69 Global Witness, Coming Clean: How Supply Chain Control Scan Stop Congo’s Minerals Trade Fueling Conflict, May 2012, 22–3. 70 ICG, Congo: No Stability in Kivu despite Rapprochement with Rwanda, no. 165, November 16, 2010, 1. 71 Ibid., 4.


168

M. Yonekawa

failure to pay the salaries of soldiers in the Kivus.72 Their salaries had intentionally been withheld, possibly going all the way back to 2004, when the FARDC defeated the rebel group (RCD) for the last time in Bukavu.73 Thus, in order for the abandoned soldiers to make a living, they were forced to loot private property and collect taxes from civilians. This issue of salary has never been addressed by MONUSCO. Instead, most observers have merely condemned it as misbehaviour on the part of the FARDC. Without applying the lessons learned from previous failed attempts at military integration, the Congolese government was eager to proceed with the further mixing of troops. Since 2012, 519 M23 rebel deserters have been reintegrated into the FARDC.74 And in December 2013 the Congolese government confirmed the integration of M23 into the FARDC. This blind, unrestricted, and automatic reintegration is once again ‘simply a rebel infiltration of the FARDC’.75 Such reintegration also signifies that former spoilers or criminals are being ‘pardoned’ without justice being done, or without even so much as an apology. This essentially implies that former enemies can become allies, and that former allies can become enemies, overnight – a process that could bring enormous harm to the country and threaten the population in the long run.

MONUC’s support of military operations While MONUC has facilitated the disarmament and repatriation of willing former FDLR combatants, the FARDC has attempted to neutralize the remaining combatants in eastern DRC through a military operation.

Impact of military operations According to the Nairobi Communiqué that was agreed to by the DRC, the Rwandan government, and the UN in November 2007,76 the military operation against the FDLR commenced in January 2009. Shortly before that, Kabarebe went to Kinshasa to submit the final plan to President Kabila and re-examined the decision to have Ntaganda instead of Nkunda head up the operation.77 At the same time, the FARDC initiated the accelerated integration of the CNDP and other militias that were engaged in the operation. After leading a 40-day joint military operation with the FARDC, the Rwandan army withdrew, and MONUC engaged in joint planning with the FARDC for the continuation of military operations. The intended objective of the military operation against the FDLR was to eradicate the negative forces and improve security in eastern DRC. While the FDLR was initially forced out of its military bases and away from its strategic points, it later reoccupied some of them and conducted reprisal campaigns, resulting in a massive displacement of civilians.78 Members of the FARDC also became perpetrators. In fact, half of the killings of civilians were carried out by the FARDC, including the (former) CNDP officers and members of the Rwandan army, and the rest were carried out by the FDLR.79 Thus, the FDLR and other foreign rebel groups benefited extensively from the military operation, such as through trade in natural resources and collaboration with 72 ICG, Eastern Congo: Why Stabilisation Failed, no. 91, October 4, 2012, 11. 73 Turner, Congo Wars, 97–8, 160. 74 IPS, ‘Congo – Kinshasa: Fears of Rebel Infiltration of DR Congo Army’, May 16, 2013, http://allafrica.com/stories/ 201305170087.html (accessed May 20, 2013). 75 Ibid. 76 UNSC, S/2007/679, November 21, 2007, para. 9(b). 77 ICG, Congo: Une Stratégie Globale pour Désarmer les FDLR, July 9, 2009, 3, n. 12. 78 UNSC, S/2009/160, para. 12. 79 HRW, ‘You Will Be Punished’, 51, 85.


169


other armed groups.80 As more recruitment began to take place in the Great Lakes region, the number of armed groups increased.81 The fact that the FARDC had a cooperative relationship with the FDLR through joint control of mining areas and illegal trade82 led to failure of the military operation. In fact, that relationship had been in place since 1994, when the genocidaires crossed into eastern DRC. President Laurent Kabila in particular was in need of the FDLR for the purpose of countering the RCD rebellion. Following the military operation in 2009, cooperation between the FARDC and the FDLR was officially prohibited, but the practices the two groups had been engaging in earlier continued, such as provision of ammunition by the former to the latter.83 Moreover, the FDLR maintained an alliance with other rebel groups and militias – an alliance that was supported by the FARDC.84 This partnership was demonstrated in 2010, when widespread rape and looting took place perpetrated by a group of at least 200 fighters from the FDLR, the (former) CNDP, the FARDC, and others.85 As discussed below, the relationships among the various actors are rather ambiguous.

Objectives of the military operation According to one survey, 75% of communities surveyed in the military operation zone were against continuation of the military action, calling instead for a political resolution.86 Although the high risk and high cost of a military solution was expected, and was expressed through warnings issued by humanitarian agencies, there remains a very important question in this regard: why was MONUC engaged in it? Also, this military operation was not limited to the stated objective; in fact, the DRC and Rwandan governments had three different – indeed opposing – agendas. Once again, Numbi and Kabarebe managed a military operation in much the same way they had dealt with the mixage process.87 The first agenda was to demonstrate that the two countries could work together militarily, politically, and economically. According to the UN Group of Experts report in 2008, however, while the Rwandan government supported the CNDP, the DRC government collaborated with the FDLR.88 Although this was a known fact, the two governments found it so damaging that they felt obliged to prove it to be untrue. Thus, despite having cut off diplomatic relations in 1998, they managed to re-engage in 2009. To that end, the joint military operation was used as a start. This explains why, although participation of the Rwandan army was not initially planned under the Nairobi Communiqué, it was agreed to secretly on the basis of a suggestion by the US.89 The second agenda was to aggravate the security situation in eastern DRC. The FDLR had been posing a threat to the local population in eastern DRC through forceful taxation, sexual violence, and looting, but it had not posed a threat to the RPF since 2002, when the FDLR stopped engaging in cross-border incursions. Therefore, the Rwandan army had no reason to enter eastern DRC, but used the pretext of the FDLR threat to cross the border and gain access to the natural resources found there.90 In fact, according to the UN, the Rwandan government had been 80 81 82 83 84 85 86 87 88 89 90

UNSC, S/2011/738, para. 39. ICG, Why Stabilisation Failed, 5; UNSC, S/2011/738, para. 39. UNSC, S/2008/773, December 12, 2008, para. 94, 102–13; UNSC, S/2012/348/Add.1, June 27, 2012, Annex 12. UNSC, S/2008/773, para. 104; UNSC, S/2009/603, November 23, 2009, para. 23. HRW, ‘DR Congo: Peace Accord Fails to End Killing of Civilians: Murder, Rape, Looting Continues Six Months After Goma Agreement’, July 18, 2008. MONUSCO, Preliminary Report of the Fact-Finding Mission of the United Nations Joint Human Rights Office into Mass Rapes and Other Human Rights Violations by a Coalition of Armed Groups along the Kibua–Mpofi Road in Walikale, North Kivu, from 30 July to 2 August 2010, Introduction, September 24, 2010. OXFAM, Women and Children First: On the Frontline of War in the Kivus, June 2010, 1. UNSC, S/2009/603, para. 197. UNSC, S/2008/773, para. 27, 29, 30, 102. ICG, Congo: No Stability in Kivu, 2–3. HRW, ‘You Will Be Punished’, 45.


170

M. Yonekawa

uncooperative in regard to the disarmament and repatriation of members of the FDLR for quite some time, though Rwanda officially welcomed such measures.91 Moreover, M23, which was reportedly receiving support from the RPF, had recruited those repatriating FDLR combatants92 who had a substantial knowledge of eastern DRC. Although the RPF and the FDLR were purported to be hostile toward each other, the true nature of their relationship was rather ambiguous. Furthermore, in order to prepare for the repatriation of Congolese Tutsi refugees from Rwanda, it was necessary to clear land in eastern DRC.93 The governments of the DRC and Rwanda were thus obliged to physically and morally weaken the condition of local residents, who were considered obstacles, especially those living in mining areas. As a means to threaten the civilians, rape was used. The third agenda was to protect Ntaganda, a war criminal indicted by the International Criminal Court (ICC), and other FARDC commanders who were involved in serious crimes. In spite of denials by MONUC, this cruel military operation was led by Ntaganda,94 who profited from the protection he received as a result of the facilitation by MONUC. He was given special instructions from both Kinshasa and Kigali to integrate former CNDP factions into the FARDC so that the CNDP could lead the operation in conjunction with the Rwandan army.95

UN complacency with culture of impunity Because of the culture of impunity enjoyed by influential RPF-related spoilers who were known for grave human rights violations, Rwanda succeeded in reinforcing its influence in eastern DRC. The cases of these spoilers illustrate how the lack of justice has helped the perpetrators to ascend to high positions where they can further undermine the state governance, the army, and efforts aimed at protecting human rights, thereby providing themselves with immunity from prosecution. The UNSC and peacekeepers were complacent regarding such a culture, intentionally or otherwise, and remained silent, which has called into question the neutrality of the UN.

History of chronic impunity The Congo wars date back to the RPF’s invasion in 1990, and the subsequent Rwandan civil war and genocide spilled over into eastern DRC. Although the RPF’s invasion led to the killing of 40,000, both Hutu and Tutsi, as well as displacement of 350,000 civilians,96 practices that continued during the civil war,97 the seriousness of this crime of invasion has been underrated. The UN Special Rapporteur on Summary, Arbitrary, and Extrajudicial Executions concluded that the massacres of the Tutsi could be classified as genocide, but the UNSC never followed up on that conclusion.98 While it is generally known that former Rwandan Armed Forces personnel and the Interahamwe initiated the atrocities, some testified that the shooting down of the airplane carrying Rwandan President Juvénal Habyarimana – the event that triggered the genocide – was carried 91 92 93 94 95 96

HRW, Democratic Republic of Congo: Civilians at Risk During Disarmament Operations, December 29, 2004, 7–8. UNSC, S/2012/843, November 15, 2012, para. 16. HRW, ‘You Will Be Punished’, 45. BBC, ‘Congo Ex-Rebel “Working with UN”’, April 29, 2009. UNSC, S/2009/603, para. 183. HRW Arms Project, Arming Rwanda: The Arms Trade and Human Rights Abuses in the Rwandan War 6, no. 1 (January 1994): 26; James Gasana, Rwanda; Du Parti-Etat a l’Etat Garnison (Paris: L’Harmattan, 2002), 185. 97 Alison Des Forges, Leave None to Tell the Story: Genocide in Rwanda (New York: HRW, March 1999), 70. 98 UN Economic and Social Council Doc. E/CN.4/1994/7/Add.1, August 11, 1993, para. 79; Des Forges, Leave None, 74.



171

out by Kagame himself.99 They also contend that the RPF killed a large number of people during the period between the commencement of the genocide and early 1995,100 including twice as many Hutu as Tutsi between April and July 1994.101 The Gersony Report, which was issued under contract to the UN, reflects those views, but it was embargoed by the UN, as its content was awkward for the new RPF regime.102 The International Criminal Tribunal for Rwanda (ICTR) had hoped to hand down the first indictments against RPF suspects in 2002 but was dismissed by the US government.103 Since then, no RPF suspect has been indicted by the ICTR.104 At the same time, it is widely acknowledged that during the genocide, and despite requests from the ground, the UNSC reduced the number of peacekeepers deployed there. In reality, it was the RPF who ‘slowed down the peacekeeping training in New York’ by ‘officially reject [ing] intervention by UN or African peacekeeping forces in Rwanda … their victory was the only way to stop the ongoing genocide’.105 Among the many serious violations that have occurred in eastern DRC, the most drastic was the massive killing of Rwandan Hutu refugees and Congolese civilians by the AFDL and the Rwandan army in 1996 and 1997. A UN investigative report confirmed that this activity constitutes crimes against humanity, with possible genocide, and placed the responsibility for it with Laurent Kabila and Kagame.106 In fact, the Rwandan army was far more involved in the massacres than the AFDL, as Kabila had no specific interest in Rwandan refugees.107 This was reconfirmed by the UN report in 2010,108 but Rwanda categorically rejected it and threatened the UN when the draft report was leaked. The UNSC has held no discussion on the issue since the report was published. During and after the Second Congo War, Nkunda led mutinies on two occasions, and these amounted to war crimes.109 The DRC government issued a warrant for his arrest on charges of war crimes but ended up not executing it.110 Although Nkunda has officially been under house arrest since January 2009, as sentenced by the Rwandan government, his CNDP leadership continued through the founding of M23.111 Ntaganda’s crimes include massacre of villagers, and murder of humanitarian and MONUC personnel.112 Between 2009 and 2012, under his command, FARDC soldiers were involved in war crimes, as well as arbitrary arrests and ‘disappearances’ of his opponents.113

99 Michael Hourigan, ‘ICTR: Affidavit of Michael Andrew Hourigan’, November 27, 2006; BBC, ‘Rwandan President Kagame “Sparked 1994 Genocide”’, October 4, 2011; RFI, ‘Kayumba Nyamwasa: Je suis prêt à apporter toutes les preuves’, July 9, 2013. 100 Gérard Prunier, The Rwanda Crisis: History of a Genocide (Kampala: Fountain, 2006), 359; Amnesty International, Reports of Killings and Abductions by the Rwandese Patriotic Army, 14 October 1994, 4–9. 101 Howard French, ‘The Case Against Rwanda’s President Paul Kagame’, Newsweek, January 14, 2013. 102 Gérald Prunier, Africa’s World War: Congo, the Rwandan Genocide, and the Making of a Continental Catastrophe (Oxford: Oxford University Press, 2009), 16. 103 Carla Del Ponte, Madame Prosecutor: Confrontations with Humanity’s Worst Criminals and Culture of Impunity (New York: Other Press, 2009), 231. 104 HRW, ‘Rwanda Tribunal Should Pursue Justice for RPF Crimes’, December 12, 2008. 105 David Scheffer, All the Missing Souls: A Personal History of the War Crimes (Princeton, NJ: Princeton University Press, 2012), 62. 106 UNSC, S/1998/581, June 29, 1998, 7; Filip Reyntjens, ‘Briefing: The DRC, From Kabila to Kabila’, African Affairs 100, no. 399 (2001): 311–17. 107 John Pomfret, ‘Rwandans Led Revolt in Congo’, Washington Post, July 9, 1997, A01. Kagame admitted that the RPF army had done most of the fighting. 108 Office of the High Commissioner for Human Rights (OHCHR), Report of the Mapping Exercise Documenting the Most Serious Violations of Human Rights and International Humanitarian Law Committed within the Territory of the DRC between March 1993 and June 2003, August 14, 2010. 109 HRW, War Crimes in Kisangani, 2; HRW, Renewed Crisis, 11. 110 HRW, Renewed Crisis, 11. 111 UNSC, S/2012/348/Add.1, para. 27, 34. 112 ICG, ‘After MONUC, should MONUSCO Continue to Support Congolese Military Campaigns?’ 113 HRW, ‘DR Congo: Warlord Ntaganda at ICC a Victory for Justice’, March 25, 2013.

172

M. Yonekawa

Despite a commitment made in the Peace, Security and Cooperation Framework agreement which was signed in February 2013 by the DRC and neighbouring countries, among others, which committed the parties thereto to stop sponsoring Congolese militias, Rwanda maintained its support for M23, which continued to commit war crimes.114 Even after its defeat in November 2013, M23 is reportedly continuing to recruit in Rwanda.115


Question of neutrality of the UN The neutrality of the UN has always been questioned in the DRC, as it failed to condemn crimes committed by the RPF and remained silent about many of the atrocities. To provide some examples: during the attack by the RCD, MONUC remained inactive out of concern that an aggressive stance would provoke the RCD to withdraw from the transitional government, in which one of four vice presidents was a representative of the RCD.116 Also, MONUC supported the military operation, which was believed to be led by Ntaganda. In addition, MONUC failed to condemn the Rwanda-favouring mixage process, and some MONUC troops even attended the ceremony marking its completion.117 In 2000 and 2012, MONUC demanded that Rwanda and Uganda withdraw their forces from Kisangani and denounced them for the capture of Goma by M23, but the UNSC was unwilling to name those two countries.118 Another dimension in which MONUSCO’s neutrality has been questioned is in relation to its mandate to support the FARDC. Granted, this is partially due to FARDC’s blurred status. The RCD and the CNDP maintained parallel administrations with the FARDC, and the founders of M23, all of whom were ex-CNDP soldiers, including Ntaganda, were officially part of the national army until 22 November 2012, when M23 was recognized by the DRC government as a rebel group for the first time. Prior to the M23 rebellion, its status was not clear, and it was often called a mutinous army or a rebel group.119 Thus, given the vague relationship between the FARDC and M23, which appeared to be that of enemy groups with some overlapping membership, the ways in which MONUSCO could target M23 were unclear. This explains why UN troops have never intervened in abuses committed by M23 in order to defend civilians, even though UNSC Resolution 1856 (2008) authorized them to do so.120 MONUSCO was newly mandated in March 2013 to ‘support and work with the Government of the DRC to arrest and bring to justice those responsible for war crimes and crimes against humanity in the country, including through cooperation with States of the region and the ICC’,121 but no particular development of that kind has yet been observed. Indeed, the legitimacy and credibility of MONUSCO have been weakened, as a result of its ‘either … standing aside when terrible crimes are committed or … siding with groups who commit terrible crimes’.122 MONUC has an obligation to ensure that military operations undertaken by the FARDC are planned in accordance with international humanitarian law.123 Nevertheless, in spite of being aware of the FARDC brigade’s involvement in war crimes, MONUC failed to announce its sus114 115 116 117 118 119 120 121 122 123

UNSC, S/2013/433, July 19, 2013, para. 9. UNSC, S/2014/42, January 23, 2014, para. 4. ICG, The Congo’s Transition is Failing: Crisis in the Kivus, March 30, 2005, 24. ICG, Congo: Bringing Peace, 9. UNSC S/RES/1304, June 14, 2000, para. 3; UNSC, S/RES/1332, December 14, 2000, para. 10; UNSC, S/RES/ 2076, November 20, 2012, para. 8; UNSC, S/2013/119, February 27, 2013, para. 72. The UN Group of Experts, which has named both countries in its reports, is an independent group and does not represent the UN as a whole. Reuters, ‘Top Rwandan Officials Backing Congo Rebels: Leaked U.N. Findings’, June 21, 2012. UNSC, S/RES/1856, para. 3(a). UNSC, S/RES/2098, March 28, 2013, para. 12. Kaldor, New and Old Wars, 96. HRW, ‘Eastern DR Congo: Surge in Army Atrocities, UN Peacekeeping Force Knowingly Supports Abusive Military Operations’, November 2, 2009.


173


pension of assistance until after eight months of lending its support to the military operation. On the other hand, MONUC maintained its support for other army brigades despite their continuing involvement in gross human-rights violations.124 The UN Office of Legal Affairs drafted a memo which stated that MONUC could be held responsible for violations of international law that were committed by the FARDC, and requested a review of the parameters of MONUC support in 2010.125 However, this initiative has produced no results. Meanwhile, a ‘human rights due diligence policy for UN support to non-UN security forces’ was endorsed by the UN Secretary-General in 2011. That policy prohibits UN actors from supporting – or even training or indirectly financing – non-UN security forces, including any army or police force, when there is a serious risk that they may commit grave violations.126 However, MONUSCO made no changes in its relationship with the FARDC. And in the few years that have transpired since the launch of the military operation, discussion of its negative impact on civilian protection has declined.

Ambiguous status of spoilers The main spoilers involved in the DRC peace processes need to be analysed. The nationality and status of these spoilers, some of whom are mediators as well, is subject to ambiguity, and the relationships among the various actors are often vague. This explains why the ‘battlefield’ between the FARDC and rebel groups is generally misunderstood, and as a result, peacekeepers are not able to intervene appropriately.

Advantage of ambiguity and the ‘battlefield’ The issue of Congolese nationality for the Rwandaphone community was one of the root causes of the two Congo wars, and it remains unresolved to date. According to Article 6 of the 2004 Congolese law in this regard, Congolese nationality can be obtained by ‘any person belonging to an ethnic group or nationality whose people and land were part of the territory that became the Congo (on 30 June 1960)’.127 Since the DRC law does not permit dual nationality, members of the Rwandaphone community would have to take certain steps to gain Congolese nationality. Their status, however, is still precarious, and they remain stateless persons. Some Rwandans and certain members of the Rwandaphone community in eastern DRC have taken advantage of this ambiguity and have exerted power over the eastern DRC militarily, politically, and economically. The cross-border mobility between the two countries, as if they were one united country, is unique to the Congo wars. After the AFDL takeover of the Congolese government, Kabarebe became the Chief of Staff for the FARDC while retaining the same position in the Rwandan army. Strangely, soldiers and commanders such as Kabarebe often served first in the Rwandan army, then in the FARDC, and then again in the Rwandan army. In each of these services, the soldiers presented themselves and were obviously recognized as belonging to the national army of the respective country. This is why the Rwandan army is often described as ‘soldiers without borders’.128 This regionalization of personnel for their convenience has become a hindering factor in the peace process in the DRC. Most of the parties responsible for serious crimes, past as well as HRW, ‘You Will Be Punished’, 141. Ibid. UN General Assembly and Security Council, A/67/775–S/2013/110, March 5, 2013, para. 1, 7. UNHCR, ‘Working Paper on the Problematic of DRC Kinyarwanda Speaking Populations’ Rights to the Congolese Nationality’, June 2007. 128 Commonwealth Human Rights Initiative, Rwanda’s Application for Membership of the Commonwealth: Report and Recommendations of the Commonwealth Human Rights Initiative (New Delhi: CHRI, 2009), 9.

124 125 126 127


174

M. Yonekawa

present, are Rwandans or members of the Rwandaphone community in eastern DRC, i.e. those belonging to the FDLR, the AFDL, the RCD, the CNDP, or M23. Apart from the FDLR, the other groups are under the command of Rwandan President Kagame, and to a certain extent under Ugandan President Museveni, and this has been the case since the early incursions by the RPF. Various rebel groups have been replaced, one after another, by going through the same pattern and by creating their own administration in some parts of the Kivus. Apart from nationality and status, the relationship among the spoilers, which has affected the ‘battle’ between the FARDC and the CNDP and other rebel groups, is also unclear. For example, Kabarebe has been considered the de facto leader of all the operations in the DRC that have been undertaken by the Rwandan government since 1996, such as rebellions of the AFDL, the RCD, and M23, as if there were a hostile relationship with the DRC. However, Kaberebe and Joseph Kabila internally led the AFDL,129 they both worked during the massacre in Kisangani in 1997,130 and they are distant relatives.131 In fact, Joseph Kabila’s nationality and background is unknown. He is believed to have had a biological father from Rwanda and a Tutsi mother, and to have joined the AFDL not as a Congolese but as an RPF official.132 Kabila is also close to Ntaganda, who is ‘believed to be a national of Rwanda’,133 and they have been ‘brothers in arms’ dating back to their time in the AFDL.134 Kabila allowed Ntaganda to control a key mineral-smuggling route to Rwanda and to maintain a senior post in the FADRC in return for backing Kabila’s re-election.135 This explains why President Joseph Kabila failed in his legal obligation to hand over Ntaganda to the ICC, using the pretext that he is essential to the peace process because of his role in integrating the CNDP into the FARDC.136 Moreover, the blurred relationships among the various spoilers have led to the lack of willingness on the part of the FARDC to fight against the CNDP or other rebel groups. In reality, systematic murder against civilian populations instead of fighting between armed forces seems to take place.137 This can perhaps best be illustrated by highlighting the profile and actions of Gabriel Amisi, a former FARDC Land Force commander. Though a pure Congolese himself, he has strong ties to the RPF and has remained a close ally of Joseph Kabila. After working as an army officer during the Mobutu regime, he was recruited into the AFDL. When he was an RCD officer, Amisi and Nkunda were accused of carrying out massacres of civilians.138 Since Amisi joined the FARDC, Kabila has repeatedly appointed him to lead the FARDC any time it faced the CNDP in the so-called ‘battlefield’. Amisi has always ordered the retreat of the FARDC and avoided having his forces fight against his business associates, Nkunda’s men.139

Unambiguous status of mediators Uganda and Rwanda have been involved in mediation since the time of the CNDP.140 While Kabarebe mediated the CNDP’s mixage process, Ugandan President Museveni, as chairperson 129 David Barouski, ‘Laurent Nkundabatware, His Rwandan Allies, and the Ex-ANC Mutiny’, 20, http://www.ias.unibayreuth.de/resources/africa_discussion_forum/07-08_ws/LKandexANC.pdf (accessed May 20, 2011). 130 Gaspard Musabyimana, L’APR et les Réfugiés Rwandais au Zaire 1996–1997: Un génocide nié (Paris: L’Harmattan, 2008), 7. 131 Pierre Péan, Carnages: Les Guerres Secrètes des Grandes Puissances en Afrique (Paris: Fayard, 2010), 415. 132 Ibid., 414–16, 418; Colette Braeckman, ‘Joseph Kabila or le poids de l’héritage’, Le Soir, January 19, 2001. 133 ICC, ‘Situation in the DRC in the Case of the Prosecutor v. Bosco Ntaganda’, ICC-01/04-02/06, August 22, 2006, 5. 134 Radio Netherlands Worldwide, ‘Kigali, between Ntaganda and the ICC’, June 6, 2012. 135 UNSC, S/2011/738, para. 297. 136 HRW, ‘DRC: ICC-Indicted War Criminal Implicated in Assassinations of Opponents’, October 13, 2010. 137 Donald Snow, Uncivil Wars: International Security and the New Internal Conflicts (Boulder, CO: Lynne Rienner Publishers, 1996), 1. 138 HRW, War Crimes in Kisangani, 2, 25. 139 Reuters, ‘Insight: Congo Army Debacle at Goma Raises Specter of Betrayal’, December 10, 2012. 140 At the time of the AFDL and the RCD, South Africa mediated.



175

of the International Conference on the Great Lakes Region (ICGLR), had mediated peace talks intermittently between the DRC government and M23. On the other hand, Rwanda, supported by Uganda, founded and has been directly commanding M23,141 though both countries have continued to deny their role in M23. In order to manage spoilers, mediators should be nonpartisan third parties whose objective is to create the conditions that lead to conflict de-escalation. However, for the peace process in the DRC, the same states have paradoxical roles as both commanders of spoilers and mediators. This is largely the reason why mediators were not able to identify spoilers among the concerned parties, which is one of the first tasks that mediators should execute.142 While playing the role of mediator, both Rwanda and Uganda exercised partiality by helping to raise the profiles of RPF-created rebel groups. Paradoxical though it may seem, immediately after M23 occupied Goma in November 2012, Presidents Museveni, Kabila, and Kagame held a closed meeting and subsequently issued a joint communiqué enjoining M23 to pull out of Goma, as if none of them had any relationship with M23. This communiqué was immediately followed by a meeting attended by several heads of state and the ICGLR. It was decided that a Composite Force comprised of the international neutral force, the FARDC, and M23 would be deployed at Goma airport. In addition, MONUSCO would occupy and provide security in the neutral zone between Goma and the new areas occupied by M23. It was also agreed that this process would be ‘supervised by Chiefs of Defence of Rwanda [Kabarebe], DRC and led by the Chief of Defence Forces of Uganda, with the participation of other Chiefs of Defence Staff from other member states’.143 Once again, Rwanda and Uganda were provided important roles in this process as if they were not backing M23. Following the FARDC’s ‘victory’ over M23 in November 2013, the DRC government signed a declaration in December 2013 on the end of M23’s rebellion, though the government had no particular reason to formalize it. Article 10, which is the most crucial aspect of this declaration, reaffirmed the DRC government’s determination to finalize the implementation of the 2009 agreement with the CNDP.144 In other words, this agreement confirmed the reinforcement of Rwanda’s control in eastern DRC, and the mediator, Uganda, ratified it in a communiqué.

Conclusion The discussion and analysis presented in this paper has shown that MONUSCO’s failure to protect civilians can be attributed not only to failure on the part of the peacekeepers to fully analyse the ambiguous status and relationship of spoilers and neighbouring states, but also to its continuing support of spoilers and neighbouring states. Intentionally or otherwise, the UN supported several elements in the conflict, which led to the neutrality of both MONUSCO and the UN being called into question. Those elements include the blurred status of the FARDC, which became a proxy of the Rwandan army; the military integration and operation, which were led by key spoilers close to the RPF; and the peace process in the DRC, which was mediated by neighbouring states that also have a contradictory role as perpetrators of violence. Neighbouring states Rwanda and Uganda not only assisted the spoilers (AFDL, RCD, CNDP, and M23) in the DRC with arms, capital, and sanctuary; they even founded and commanded these 141 Coordinator of the Group of Experts on the DRC, SI/AC.43/2012/1NOTE.26, November 27, 2012, 3. 142 Michael W. Doyle and Nicholas Sambanis, Making War and Building Peace (Princeton, NJ: Princeton University Press, 2006), 50. 143 ‘Declaration of the Heads of State and Government of the Member States of the International Conference on the Great Lakes Region (ICGLR) on the Security Situation in Eastern DRC’, November 24, 2012. 144 UNSC, S/2013/740, December 18, 2013, 5.


176

M. Yonekawa

spoiler groups. The main players in the spoiling activities, therefore, are not the internal spoilers in the DRC, but rather the neighbouring states and groups within them, especially Rwanda (RPF). While hiding its intentions, the RPF and its allies have continued large-scale violence since 1990, before the peace process started, including invasion, occupation, and possible genocide, both in Rwanda and in eastern DRC. In particular, the RPF’s rejection of deployment of additional peacekeepers during the 1994 genocide deserves major attention and should be punished accordingly, as without such nonviolent spoiling action, genocide and the subsequent wars in the DRC could have been prevented or at least minimized. Other tactics used by the RPF and its allies are parallel administration by the FARDC and rebel groups; holding of double titles by Kaberebe in Rwandan and DRC army, as well as by Nkunda and Ntaganda in the FARDC, the RCD, and the CNDP and the apparent ‘failure’ of the military integration and operation; and the superficial ‘defeat’ of M23, all of which benefited the RPF. Because of these skilful tactics, the roles and identities of the spoilers have become blurred to outsiders. This partially explains why the UNSC and MONUSCO have been unable to systematically follow up on previous recommendations despite evidence and investigations that have shamed the RPF and its allies. The silent behaviour on the part of the UN in regard to serious human rights violations has prevented any justice system from assigning responsibility. The RPF took advantage of this silence and succeeded in illegally exploiting natural resources and expanding the Rwanda-controlled territory in eastern DRC. These acts have further contributed to the continued existence of unprotected, insecure conditions for civilians, for which the UN should be held responsible. These conclusions suggest several considerations for future implementation of the MONUSCO. The vicious cycle of violence created by spoilers and neighbouring states is likely to continue unless the UN develops preventive and proactive measures in its effort to ensure the broadest civilian protection based on justice. To begin with, the UN should critically re-examine the true nature of all the main spoilers and neighbouring states. This may help in identifying the exact extent of the ‘governance gap’ and complicity with the very negative forces that MONUSCO is supposed to eliminate. It is essential to select neutral mediators who have a clear understanding of the international principles related to civilian protection. In addition, all the spoilers – both states and non-state actors – must be made to face up to the justice system. With these steps, the sustainable protection of civilians can gradually be ensured.

Acknowledgements The author is grateful to Nanako Shimizu for her comments on earlier drafts of this manuscript, and another anonymous reviewer for making several important suggestions, which enhanced the manuscript.

Notes on contributor Masako Yonekawa worked with the UNHCR, mostly in Democratic Republic of Congo (DRC) and Rwanda. She holds a MSc in international relations from the University of Cape Town. Her publications include A Critical Analysis of South African Peacemaking: How Can Another Deadly Conflict in the African Great Lakes Region be Prevented in the Future? (Lambert Academic Publishing, 2011).