McKnight, J 2014 Surrendering to the Big Picture: Historical and Legal Perspectives on Accountability in the Democratic Republic of Congo Following the Defeat of the March 23 Movement. Stability: stability International Journal of Security & Development, 3(1): 7, pp. 1-11, DOI: http://dx.doi.org/10.5334/sta.de

PRACTICE NOTE Surrendering to the Big Picture: Historical and Legal Perspectives on Accountability in the Democratic Republic of Congo Following the Defeat of the March 23 Movement Janet McKnight*

It remains to be seen whether the past few months will mark a genuine turning point in the conflict in eastern Democratic Republic of Congo (DRC), as the rebel faction March 23 Movement (M23) announced the end of its 20-month insurgency against the government on 5 November 2013. News of the rebel group’s surrender following its political and military defeat signals an important moment of hope and renewed prospects of peace and stability in a region prone to protracted armed conflict. However, long-term stability in the country and in the region will require a multi-faceted process consisting of comprehensive account- ability for human rights violations that have been committed by all parties to the conflict. In this article, I will first lay out the historical context of the fighting and the root causes of conflict present long before M23’s entrance onto the scene as a splintered rebel faction so as to understand M23’s place within the country’s history of protracted violence. Next, I will explain the violations of international humanitarian and human rights law committed by all possible parties, including rebel and government groups, as well as individual criminal responsibility and corporate liability. Lastly, I will chart the pathways of criminal and social accountability at various levels of international and domestic justice systems to see how the DRC may continue to build long-term local stability in the eastern parts of the country by addressing the question of accountability for international crimes. This brief analysis aims to provide a broader understanding of a complex conflict beyond the defeat and disar- mament of M23, albeit a key group in a region of contentious cross-border conflict.

Introduction (M23) request rebel commanders lay down Military or diplomatic defeat of an armed arms and discuss political solutions to issues group is certainly a necessary step in the of social reintegration with the Congolese process of demobilisation, disarmament, and Government (Sawyer 2013). On 7 November, reintegration (DDR). As such, the Democratic M23 military leader Sultani Makenga surren- Republic of Congo (DRC) seems to have taken dered in Uganda, along with thousands of a giant leap forward in this process of peace- rebel combatants. On 12 December, the DRC building; 5 November 2013 saw President and M23 signed peace declarations in Nai- Bertrand Bisimwa of the March 23 Movement robi, Kenya. These ‘hopeful moment[s]’ fol- low a reinforcement of United Nations (UN) and government troops in eastern DRC, the * PhD Candidate in Socio-Legal Studies, University of Kent, U.K. loss of foreign aid and diplomatic support [email protected] to Rwanda for its suspected involvement in Art. 7, page 2 of 11 McKnight: Surrendering to the Big Picture

M23 operations, and a string of peace talks will touch on how these violations may give in Angola, Uganda, and South Africa (aimed rise to state and individual criminal account- at implementing the February 2013 Peace, ability, as well as possible instances of cor- Security and Cooperation Framework Agree- porate liability for foreign companies indi- ment for the DRC and the region). With rectly or implicitly involved in human rights news of M23’s defeat signalling ‘the end of a violations. Such examples of comprehensive misadventure’ and leading to renewed pros- accountability will place the liability of M23 pects for military and social stability in the members within the necessary historical, region, a dose of caution is in order, as ques- political, and legal perspectives. tions of accountability remain long after the Lastly, I will chart these possible pathways laying down of arms by the DRC’s youngest of criminal and social accountability at vari- but most publicised rebel group (Berwouts ous levels of international, domestic, and 2013). The aim of this article is to discuss local justice systems. Without taking away the various legal responses that are essential from the significance of M23’s announce- (and those that are most feasible) following ment of surrender - especially for those liv- the recent cessation of the M23 rebellion, ing in the region and those most affected by and how these pathways to comprehensive cessation of armed conflict between the gov- accountability fit into the larger picture of ernment and rebel groups - this brief over- conflict in the DRC. From a history of human view and analysis aims to place these recent rights violations in the Congo, to the current developments within a broader historical conditions of wary yet renewed hope in east- and legal understanding of a genuinely com- ern DRC, accountability for M23 members plex conflict. I will explain how the nature must be assessed amid an understanding of of the conflict has transformed throughout past and continuing national violence and the years, and how the multi-faceted process regional politics. of post-/protracted conflict stability requires In this article, I will first explain the legal accountability that reaches beyond the broader historical contexts of the fighting in initial defeat and disarmament of one rebel order to present the root causes of conflict in group. In essence, the surrender of M23 and the DRC, present long before M23’s entrance optimistic expectations for peace should onto the scene as a splintered rebel faction. be met with a corresponding surrender to Next, I will explain the violations of inter- the larger picture, as sustainable peace ulti- national humanitarian and international mately necessitates accountability, among human rights law committed by all parties to numerous other factors. Furthermore, ques- the conflict, including rebel and government tions of accountability for M23 ex-combat- groups within the DRC and in the neighbour- ants cannot be asked independently of their ing states of Uganda and Rwanda. It is vital historical, political, and legal underpinnings to recognise that M23 is not the sole rebel - an understanding of which will aid a more group in operation in eastern DRC, nor are comprehensive perspective of what the rebel groups the sole perpetrators of human M23’s surrender actually means for conflict rights abuses. The DDR process concerning and stability in the DRC. M23 has kick-started expectations of peace and stability and has reignited lingering Background of the Conflict questions about the various legal responses Since the colonial era, the DRC has known that must be implemented vis-à-vis M23 political upheaval, military conflict, and combatants. That said, virtually all promi- exploitation of its natural resources. In recent nent government and armed groups to the decades, the First Congo War (1996–1997), conflict, including foreign armies, have com- the Second Congo War (1998–2003), and an mitted violations of international humani- ongoing period of violence in the regions of tarian law and international human rights. I Ituri (northeast Congo, bordering Uganda), McKnight: Surrendering to the Big Picture Art. 7, page 3 of 11 the Kivus (three eastern provinces bordering Uganda, Rwanda, and Burundi), and Katanga (bordering Angola and Zambia to the south) have killed millions, destabilised the national economy, and led to many questions of legal accountability for such atrocities. Political and social stability often seem elusive in the DRC, particularly if one considers the 1961 assassination of Prime Minister Patrice Lumumba, three decades of corrupt dictator- ship under Mobutu Sese Seko, and the 1996 Rwanda and Uganda-backed rebellion that installed Laurent Kabila as President (Sriram et al 2010: 102–103). Regionally, the 1994 Rwanda Genocide resulted in an influx of Tutsi refugees and Hutu genocidaires - many of which are ex-Forces armées rwandaises (ex- Figure 1: Map of the DRC with North and FAR) - into the eastern regions of the DRC, South Kivu provinces in red. Source: www. inciting ethnic tensions, land rights disputes, berejst.dk/389/Goma.htm and transnational security issues (Breyten- bach et al 1999: 36). In 1998, with Kabila prompted multiple investigations into the seen as being ‘too conciliatory’ towards the violations of international humanitarian law ex-FAR in the DRC, Rwanda shifted its sup- and human rights committed during the port to the Rally for Congolese Democracy conflict, as well as discussions concerning (RCD) rebel group and invaded the resource- methods of accountability for various per- rich Kivu region under the pretext of sup- petrators. These already present questions porting Congolese Tutsis (OHCHR 2010: of accountability following the official end 153). Uganda similarly turned against Kabila, of the DRC’s civil wars were only exacerbated supporting the Movement for the Liberation by continued armed conflict in the Kivus. of the Congo (MLC) and invading the Ituri The current provinces of the Kivu region, as region to attack the Ugandan rebel group the established in 1986, include South Kivu or Lord’s Resistance Army (LRA), then operating Sud-Kivu (bordering Burundi and Rwanda), from bases within the DRC (McKnight, forth- North Kivu or Nord-Kivu (bordering Rwanda coming). Kabila called upon military support and Uganda), and Maniema (to the west of from Zimbabwe, Angola, and Namibia, bring- North and South Kivu). A great majority of ing a convoluted web of armed groups, gov- the continuing conflict in the Kivu region ernment-backed and independent Mai-Mai has occurred in and around the North Kivu militias, and splintered rebel factions into capital of Goma (see Figure 1). a conflict that would come to be known as Against this backdrop of two decades of Africa’s ‘Great War’ (Stearns 2011).1 conflict as well as protracted armed hos- The 1999 Lusaka cease-fire and the 2002 tilities since 2003, the formation of M23 in Pretoria Accord, signed by key parties to the 2009 can be understood in the context of a conflict, established the demobilisation of much broader, much older situation of polit- foreign troops, an integrated national army, ical and social instability. M23 was created a UN peacekeeping mission (MONUC), and following a peace agreement on 23 March the formation of a unity government - with 2009, signed between the DRC Government Joseph Kabila as president following the and the National Congress for the Defence of 2001 assassination of his father (Sriram et the People (CNDP), a splinter faction of the al 2010: 105–106). The peace agreement Rwanda-backed RCD, led by Bosco Ntaganda. Art. 7, page 4 of 11 McKnight: Surrendering to the Big Picture

The agreement saw the CNDP become a In March 2013, Security Council Resolu- recognised political party and proposed tion 2098 authorised the UN Force Inter- that CNDP’s armed wing be integrated into vention Brigade (FIB) - primarily composed the government’s Armed Forces of the DRC of Malawian, South African, and Tanzanian (FARDC) (March 23 Agreement 2009: art. 1.1). troops - to protect civilians and neutralise An International Criminal Court (ICC) arrest armed groups through offensive operations warrant for Rwandan-born Ntaganda (issued in eastern DRC (UNSC Res. 2098 2013: §§ 9 in 2006 and publicly unsealed in April 2008) and 12). Coordinated efforts between FARDC indicted the military leader on charges of war and FIB in the latter half of 2013, combined crimes committed between 2002 and 2003 with low recruitment, high desertion rates, by his Patriotic Forces for the Liberation of and internal fighting within M23 (between Congo (FPLC) (Prosecutor v. Ntaganda, ICC CNDP military leader Ntaganda, M23 mili- 2006).2 By 2012, with Kabila under height- tary chief Makenga, and M23 president Jean- ened international pressure following 2011’s Marie Runiga Lugerero) regarding negotia- suspect elections, Ntaganda (then chief of tions with the government, ushered in the staff of the CNDP) was at serious risk of being military defeat of the rebel group in Novem- handed over to the ICC as a ‘sign of [Kabila’s] ber 2013 (Berwouts 2013). These factors good will’ (Berwouts 2013). Additionally, allowed the government to regain control CNDP soldiers within FARDC refused to be of the rebel-held cities of Kibumba, Ruman- deployed by the government to western and gabo, Rutshuru, Kiwanja, and Bunagana, as central parts of the country, as they became M23 numbers fell to approximately 800– increasingly frustrated with the lack of mili- 1,500 troops (Olivier 2013; Stearns 2013). tary integration promised by the March 23 The lack of Rwandan support, due to foreign Agreement (Berwouts 2013). Holding the sanctions, also likely brought about a weak- agreement to be effectively disregarded by ening of M23 numbers (Stearns 2013). the government, 300 ex-CNDP members Even though M23 has been neutralised, (supposedly led by Ntaganda) formed M23 numerous other Congolese rebel groups on 4 April 2012, naming their rebellion after remain, including the relatively small but the dishonoured peace deal. persistent Democratic Forces for the Lib- M23 is composed primarily of ethnic Tutsis eration of Rwanda (FDLR). FDLR and other and some Mai-Mai militias from North Kivu, groups must also surrender or be defeated and reached a peak size of approximately through offensive operations carried out by 5,000 members by the end of 2012. With government troops and/or the FIB before M23 lacking the military support or ‘clout to stability can be fully realised in the region. start a proper war’, it is believed that Rwanda However, rebel groups are not the sole per- (and Uganda, to a lesser extent) supplied M23 petrators of international crimes in the DRC, with military and financial aid, weapons, spe- and the question of comprehensive account- cial forces units, and recruitment opportuni- ability can only be effectively answered if the ties from within Rwanda (Berwouts 2013; roles of other potentially liable groups and UN Group of Experts Report on DRC 2012: individuals are also considered. §§ 8, 11, 18, 20, and 35). Adequately armed, M23 slowly gained momentum, violently Assessing Violations of International stating its case against the DRC Government, Humanitarian and Human Rights Law FARDC, and the failed implementation of the In 2004, FARDC became the newly integrated March 23 Agreement. In the 20 months lead- military comprised of former government ing up to its ultimate defeat, M23 committed Forces Armées Congolaises, ex-Forces Armées human rights violations throughout North Zaïroises (known as Mobutu’s ‘Tigres’), rebel Kivu, reaching a military climax by temporar- soldiers from RCD-Goma and MLC, and cer- ily capturing Goma in November 2012. tain government-backed Mai-Mai militias. McKnight: Surrendering to the Big Picture Art. 7, page 5 of 11

FARDC fought in North Kivu, killing and rap- Court of Justice (ICJ) decision in Nicaragua ing civilians and further escalating tensions v. United States, Rwanda’s effective control of between Hutu and Tutsi refugees, as well the RCD factions, and Uganda’s effective con- as between Banyarwanda (Congolese Tutsis trol of MLC factions, could lead to inferred with Rwandan roots) and non-Banyarwanda responsibility on each state for the extrajudi- communities (Clark 2008: 5). Rwanda’s mili- cial killings, torture, and other human rights tary intervention in the major Kivu cities abuses committed by the Congolese rebel of Goma and Bukavu violated international groups (Nicaragua 1986, ICJ). humanitarian principles of non-interven- Lastly, the DRC’s wartime ‘economy’ of tion and non-use of force, and indiscrimi- exploitation was exacerbated by a range of nate attacks on civilian populations violated corporate actors, which were found to pro- human rights law. Uganda’s occupation vide infrastructure to armed groups or to be of Ituri similarly resulted in violations of complicit in human rights violations com- humanitarian law, and the coercive labour mitted by such groups (Martin-Ortega 2008: production of gold, oil, and coltan amounted 273–275). In just one example, Human to violations of jus cogens principles prohib- Rights Watch (HRW 2005: 113–117) reported iting slavery (HRW 2005: 33). Furthermore, that a Ugandan-based gold exporting agency Rwandan and Uganda forces committed and a Swiss gold manufacturer had fuelled human rights violations while fighting each human rights abuses of torture and arbi- other for control of the north-eastern Con- trary detention committed by Congolese golese city of Kisangani in June 2000. What rebel groups because the companies knew or became known as the ‘La Guerre des Six should have known that the gold purchased Jours’ (Six-Day War) left approximately 1,000 in Uganda had originated from DRC conflict Congolese civilians dead and thousands of zones. Less involved African states, such as homes destroyed (HRW 2002: 5). Angola and Zimbabwe, may also be responsi- As for the confounding array of rebel ble for human rights abuses as their desper- groups, the MLC committed rape, deliberate ate efforts to finance their share of the war killing of civilians, and violations of the terms resulted in ‘dealing[s] with ever more ques- of the Lusaka agreement when it re-invaded tionable partners’ involved in illicit trade Ituri in 2002 (HRW 2003: 36). From 2002 (Prunier 2009: 237). Corporations and states to 2004, widespread hostilities between have a duty under international law not to the ethnic Hema and Lendu groups - in violate human rights and to ensure that oth- their struggle for land and power following ers do not violate human rights, which leads Uganda’s withdrawal from Ituri - included to an increasingly problematical balance of crimes against humanity and, arguably, business ethics, competitive markets, and genocide (HRW 2003: 36). In Kisangani, the the safeguarding of human dignity in a war- RCD-Goma faction performed mass killings time economy. and summary executions, which were con- demned by the UN Secretary-General (HRW Charting Pathways to Comprehensive 2002: 24–25). Accountability Post-M23 Deciphering individual responsibility is Although the DRC, Rwanda, and Uganda are complicated by the fact that perpetrators all state parties to the Geneva Conventions, repeatedly swapped alliances throughout the violence in the DRC is generally charac- the conflict. Laurent Nkunda, a former terised as a non-international armed conflict RCD warlord turned national army general falling outside the realm of the Conventions. turned CNDP political leader, is alleged to be Regardless, such acts as mutilation, torture, responsible for the murders, rapes, and child degrading treatment, and taking of hostages soldiering committed by the CNDP in North still fall under Common Article 3, which pro- Kivu (Clark 2008: 6). Under the International hibits cruel treatment and violence to civilian Art. 7, page 6 of 11 McKnight: Surrendering to the Big Picture life committed during internal armed con- self-referred to the ICC in 2004 by Kabila. flict. The absence of a ‘grave breaches’ provi- In March 2012, the ICC convicted Thomas sion prevents Article 3 violations from rising Lubanga of the war crime of conscripting to the level of war crimes; however, acts such and using child soldiers under the age of 15, as murder, rape, and persecution perpetrated occurring between 2002 and 2003 (Prosecu- by rebel or government groups in the DRC tor v. Lubanga Dyilo, ICC 2012). The ICC is may still amount to crimes against human- also currently prosecuting Ituri rebel leader ity. Such acts committed by non-state actors, Germain Katanga for war crimes and crimes such as MLC and RCD rebel factions, could against humanity, including child soldier- also be considered crimes against humanity ing, rape, and sexual slavery (Prosecutor v. under the Additional Protocol II, if the armed Katanga and Chui, ICC 2008). On 18 Decem- groups exercised de facto control over the ber 2012, the court acquitted Mathieu Ngud- territory where violations occurred (AP II: art. jolo Chui, as the prosecution failed to prove 1.1). Violations outside the scope of Com- that the defendant was a direct co-perpetra- mon Article 3 or the Additional Protocol II tor of attacks in Ituri in 2003 (Decoeur 2013). may still constitute breaches of customary ICC indictments of Rwandan President Paul international law, which creates binding obli- Kagame and Ugandan President Yoweri gations on all parties to all conflicts. Museveni are unlikely yet possible if stronger If the DRC can be characterised as more evidence of their ‘effective command’ of than an internal armed conflict with merely Congolese rebel groups can be unearthed international-ised aspects, then grave viola- (Rome Statute: art. 28). As for Ntaganda, he tions committed by state actors - foreign and provided the ICC with its first surrender of domestic - would become war crimes under an indicted war criminal. In March 2013, Nta- the Geneva Conventions. In the ongoing con- ganda voluntarily surrendered at the United flict between DRC troops and RCD factions in States embassy in Rwanda, and was subse- Kivu, Rwanda has been accused of financially quently escorted to The Hague, where he will and militarily influencing (if not outright face charges. controlling) rebel operations (Clark 2008: 4; International criminal law targets high- RFI 2014). Allegations against the Rwandan level perpetrators of the gravest crimes, leav- Government in Kigali include the provision ing domestic and non-criminal avenues of of arms, ammunition, and direct troop rein- accountability essential to ensuring a greater forcement to M23 as recently as August 2013 scope of retribution and reparation for vic- (African Arguments 2014). The argument tims. Under the court’s prosecutorial strat- for the conflict in the DRC to obtain inter- egy of ‘positive complementarity’, ICC cases national legal character depends heavily on ideally catalyse domestic prosecutions and whether actors outside of the DRC will ever development of the rule of law (Mattoli & van be formally recognised as ‘the masters of the Woudenberg 2008: 55). Although the DRC game’ (Breytenbach et al 1999: 40). has begun some prosecutions in domestic The Rome Statute of the ICC abandons dis- military courts - including a December 2013 tinctions between international and internal conviction of around a dozen rebel soldiers armed conflict, examining cases referred to and civilians for sexual violence and murder it either by a member state, the UN Secu- committed in Sake, near Goma - the DRC’s rity Council, or cases originally investigated fragile transitional government has failed to by the ICC Prosecutor. The ICC places indi- implement Inter-Congolese Dialogue reso- vidual criminal responsibility on citizens of lutions for a truth commission (Al Jazeera member states, whether rebel or state actors, 2013; Sriram et al 2010: 108). However, for crimes within its temporal jurisdiction the government has made hesitant moves (beginning in 2002). The DRC situation was towards establishing a special domestic McKnight: Surrendering to the Big Picture Art. 7, page 7 of 11 court capable of prosecuting international risk of not effectively deterring future mis- crimes committed in the DRC, which will conducts in the DRC nor adequately allow- be discussed in further detail below. The ing Congolese victims to experience a sense DRC has indicted Nkunda for violations of of justice. international and Congolese criminal law, The idea of hybrid or ‘mixed’ courts has but has yet to obtain his extradition from also been put forth in the DRC, particularly Rwanda. It is reported that the DRC Govern- in response to the UN’s ‘mapping report’ ment engaged in negotiations with the rebel outlining human rights violations commit- leader for decreased CNDP rebellion against ted in the country between 1993 and 2003 FARDC (Clark 2008: 6). The Nkunda-DRC (OHCHR 2010). In November 2010, DRC talks demonstrate the difficulties of achiev- civil society and human rights organisations ing criminal justice when the negotiation of called for a ‘specialised mixed court’, which conflict resolution can possibly be achieved would appoint foreign judges to special at the cost of impunity. chambers within the DRC to prosecute inter- Similar diplomatic hurdles have been national crimes committed in the country encountered with Makenga’s surrender in (Lee 2012). A final version of a bill drafted by Uganda just days after M23’s defeat. For the Congolese Minister of Justice and later Makenga to be prosecuted for international endorsed by the Congolese Law Commis- crimes in the DRC, Uganda must first cooper- sion rejected the idea of a mixed chamber ate in his extradition. Furthermore, approxi- composed of international staff, and instead mately 1,700 rebel soldiers surrendered proposed a stand-alone special court (HRW alongside Makenga, and likewise need to be 2011). If established, this specialised court is extradited before undergoing possible prose- hoped to strengthen the national judiciary cution.3 Meanwhile, sanctioned M23 leaders by allowing for domestic prosecution of war that have not yet surrendered are believed crimes, crimes against humanity, and other to be moving freely throughout Uganda international crimes not currently included (O’Reilly 2013; RFI 2014). This presents a in the Congolese penal code (Lee 2012). cooperation challenge for the government Without a specialised court, only military in Kampala, which hosted stalled peace talks tribunals can exercise domestic jurisdiction between the DRC and M23 in November over such crimes (as described above with 2013, and continues to claim neutrality in the December 2013 convictions). its neighbour’s conflict - all while attempting Corporate liability for foreign companies to strengthen its international reputation indirectly or implicitly involved in human in regards to international criminal justice rights violations in the DRC also encounters (Kigambo 2013). These sorts of conflicting difficulties of jurisdiction and enforceabil- regional interests, combined with the notion ity. As a result, accountability for corporate that international crimes are an affront to the perpetuation and exploitation of Congo’s international community as a whole, have resources hardly amounts to more than led to the use of foreign domestic courts as moral obligation (Martin-Ortega 2008: 279). a possibly more effective forum for prosecu- Although voluntary initiatives, like the Kim- tion. For instance, the Spanish High Court berley Process to prevent conflict diamonds, has exercised universal jurisdiction with its are making strides towards greater account- indictment of 40 members of the Rwandan ability, corporate responsibility is still largely Patriotic Army for war crimes, genocide, and viewed as a ‘social rather than…legal form of crimes against humanity committed in the restraint’ (Martin-Ortega 2010: 277–281). DRC (see Sriram et al 2010: 112–113). How- Non-criminal liability, although a form of ever, prosecutions that occur a continent ‘softer’ law, can be beneficial to goals of rec- away from the scene of the crime run the onciliation and reparation. In the absence Art. 7, page 8 of 11 McKnight: Surrendering to the Big Picture of formal tribunals in North Kivu, informal abduction and child soldiering (Afako 2012). or ‘traditional’ dispute resolution processes Instances of perpetrator-victims may not be have been implemented in the region, includ- as numerous in M23 and other Congolese ing local boutiques des droits (law shops), the rebel groups; however, in December 2013, Commission de pacification et de concorde (a the DRC Government approved an initial community of elders meant to identify and plan to grant conditional amnesties to M23 quell the causes of inter-ethnic conflict), ex-combatants that were not found guilty and Barza Inter-Communautaire community of serious crimes (AFP 2013). This proposed dialogue between victims and perpetrators amnesty is currently awaiting approval by of conflict in the Kivu regions (Kamwimbi the Congolese Parliament. 2008: 374–376). Unfortunately, allegations of pro-RCD bias and a sense that local heal- Conclusion: Analytical Caution in ing ‘wasn’t considered a priority in a period Light of Recent Events of major insecurity’ led the Barza to collapse By the official end of Congo’s wars in 2003, in 2005 (Clark 2008: 6–14). This shows how the DRC had become a jumble of confused involvement of local leaders and politicians fighting, with the causes of war, allegiances of often taints the purposes and potential of parties, and avenues towards peace scarcely domestic accountability measures and can discernable. Human rights issues of political, exacerbate rather than address root causes economic, and ethnic scope likely served as of the conflict. However, politically neutral both genuine underlying sources of conflict organisations with the capacity to medi- as well as pretexts for retaliatory interven- ate ongoing violence in the DRC - such as tions by neighbouring countries. The ensu- a revamped Barza or similar institution - ing humanitarian and human rights viola- could ensure that jurisdictional and defini- tions committed in the name of righteous tional limitations of international criminal conflict transformed the nature of the war law do not result in complete impunity or from a worthy struggle for democracy to a stalled peacebuilding. continental tragedy (Sriram et al 2010: 103). Other non-criminal accountability meas- In the midst of this protracted and complex ures that may be discussed by government conflict, the apparent end of M23’s insur- and former rebel combatants include con- gency does not equate to automatic peace ditional or blanket amnesties. Amnesties, and stability in the region. With many rebels while controversial, are praised by some for fleeing into Uganda and Rwanda - some still promoting social reintegration, while often in hiding and others detained by the foreign criticised for doing so at the expense of impu- governments - issues of justice and account- nity (see Lessa & Payne 2012). Uganda passed ability will be more difficult than the physi- an Amnesty Act in 2000 (recently renewed cal laying down of arms. Impunity is a root in 2013), inviting former rebel combatants cause of the conflict in the DRC and will con- to be reintegrated into northern Ugandan tinue to stall the furtherance of peace and societies upon the sole condition of disarma- stability until adequately addressed through ment and renouncement of fighting. Blanket the various methods of accountability out- amnesties are generally considered to be a lined above. violation of international human rights law, Militarily, FARDC will remain ‘under scru- which insists (arguably requires) that per- tiny to see how they manage their victory’ petrators be held accountable for human against M23, in terms of dealing with con- rights violations (Lessa & Payne 2012). How- tinued threats to national security and civil- ever, this method of prioritising social rein- ian protection posed by FDLR and other tegration above criminal accountability has rebel armed groups still operating in eastern been praised in Uganda, where a majority DRC (Stearns 2013). Meanwhile, President of perpetrators were themselves victims of Kabila will be closely watched in regards to McKnight: Surrendering to the Big Picture Art. 7, page 9 of 11 his ability to politically manoeuvre through Acknowledgements issues of custody and treatment of ex-com- The author would like to thank Chandra batants, and how effectively the government Lekha Sriram and Theodore Kasongo Kam- can ‘do the rest of [its] homework’ by reform- wimbi for their helpful comments with this ing its institutions and laying out an agenda article. Both mentors have continually pro- of reconciliation (Berwouts 2013). Therefore, vided academic guidance and support that is legal accountability is just one of numerous much appreciated. and intertwining military, legal, social, and political reinforcements of sustainable peace References needed in eastern DRC and in the country as Afako, B 2012 Undermining the LRA: Role a whole. of Uganda’s Amnesty Act Conciliation This article has explained how legal Resources. Available at http://www.c-r. accountability can and must fit into the org/comment/undermining-lra-uganda- larger picture of sustainable peace, political amnesty-act-barney-afako [Last accessed stability, and social reintegration, not only in 2 January 2014]. light of the recent developments in the con- African Arguments 2014 Latest UN Group flict, but also in spite of such events. Interna- of Experts report on DRC available on tional criminal and domestic law, revamped African Arguments. 2 January. Available social dispute resolution processes, or, at at: http://africanarguments.org/2014/ the very least, conditional amnesties that 01/02/latest-un-group-of-experts-on- require social accountability in the form drc-available-on-african-arguments/ [Last of truth-telling, are essential measures for accessed 9 January 2014]. accountability in the DRC. Such processes Berwouts, K 2013 Congo: Waiting for M24 will allow the country to capitalise on its or a real window of opportunity? Afri- recent opportunity for long-term stability can Arguments, 5 November. Available at in the eastern regions beyond the initial http://africanarguments.org/2013/11/ defeat and impending disarmament of M23. 05/congo-waiting-for-m24-or-a-real-win- As the questions of accountability begin dow-of-opportunity-by-kris-berwouts/ to be answered through international and [Last accessed 4 January 2014]. domestic action, assessments and predic- Breytenbach, W, Chilemba, D, Brown, T tions of the ever-shifting conditions of peace A, and Plantive, C 1999 Conflicts in the and conflict in the DRC will benefit greatly Congo: from Kivu to Kabila. African Secu- from a dose of analytical caution. In this way, rity Review, 8(5). DOI: http://dx.doi.org/1 recent developments regarding M23, post- 0.1080/10246029.1999.9627762. conflict responsibility, and transitional jus- Case concerning Military and Paramili- tice can begin to be placed within the DRC’s tary Activities in and Against Nicara- intricate history of conflict and within the gua (Nicaragua v. United States of Amer- multi-layered legal pathways to comprehen- ica), 27 June 1986, 1986 ICJ 14. sive accountability. Clark, P 2008 Ethnicity, Leadership and Conflict Mediation in Eastern Demo- Notes cratic Republic of Congo: The Case of 1 Chad also briefly intervened in the DRC the Barza Inter-Communautaire. Jour- conflict before pulling out. nal of Eastern African Studies, 2(1): 2 The DRC became party to the ICC with 1–17. DOI: http://dx.doi.org/10.1080/ its ratification of the Rome Statute in 17531050701846682. 2002. Decoeur, H 2013 The ICC Trial Judgment in 3 The DRC Government contests the num- Prosecutor v. Ngudjolo: A Touch of Rigour ber of M23 soldiers that have surrendered in a World of Brutes. Cambridge Journal in Uganda. of International and Comparative Law, 13 Art. 7, page 10 of 11 McKnight: Surrendering to the Big Picture

January. Available at: http://www.cjicl. Lessa, F, and Payne, L A (eds.) 2012 Amnesty org.uk/index.php/cjicl-blog/the-icc-trial- in the Age of Human Rights Accountability: judgement-in-prosecutor-v-ngudjolo-a- Comparative and International Perspec- touch-of-rigour-in-a-world-of-brutes [Last tives. Cambridge: Cambridge University accessed 2 January 2014]. Press. DOI: http://dx.doi.org/10.1017/ DR Congo proposes amnesty for some CBO9781139177153 ex-M23 rebels 2013 Agence France- Lee, R 2012 Plans for a Hybrid Court in Congo Presse (AFP), 20 December. Available at - Pascale Kambale. Open Society Initiative http://www.google.com/hostednews/ for Southern Africa, 6 March. Available at: afp/article/ALeqM5hsfxQ_ruW65eeWS http://www.osisa.org/openspace/drc/ 4AJ3ILQNLg3gg?docId=c5bd6d95-e0d8- plans-hybrid-court-congo-pascale-kam- 4fc1-8d4a-a89adb83aa7c [Last accessed bale [Last accessed 12 January 2014]. 5 January 2014]. Martin-Ortega, O 2008 Business and DRC soldiers convicted of rape and mur- Human Rights in Conflict. Ethics and der 2013 Al Jazeera, 22 December. Avail- International Affairs, 22 (2008): 273–283. able at http://www.aljazeera.com/news/ DOI: http://dx.doi.org/10.1111/j.1747- africa/2013/12/drc-soldiers-convicted- 7093.2008.00156.x. rape-murder-20131222165429612376. Mattoli, G, and van Woudenberg, A 2008 html [Last accessed 5 January 2014]. Global Catalyst for National Prosecu- Human Rights Watch 2005 The Curse of tions?: The ICC in the Democratic Repub- Gold: Democratic Republic of Congo. New lic of Congo. In Waddell, N, and Clark, P York: HRW. (eds.) Courting Conflict?: Justice, Peace Human Rights Watch 2003 ITURI: ‘Covered and the ICC in Africa. London: Royal Afri- in Blood’: Ethnically Targeted Violence in can Society. Northeastern DR Congo. New York: HRW. McKnight, J Forthcoming. Accountability Human Rights Watch 2011 DR Congo: in Northern Uganda: Understanding Establishment of a Specialized Mixed the Conflict, the Parties, and the False Court for the Prosecution of Serious Inter- Dichotomies in International Criminal national Crimes. New York: HRW. Law and Transitional Justice. Journal of Human Rights Watch 2002 War Crimes African Law. in Kisangani: The Response of Rwandan- Olivier, D 2013 How M23 was Rolled Back. backed Rebels to the May 2002 Mutiny. African Defence Review, 30 October. Avail- New York: HRW. able at http://www.africandefence.net/ Kamwimbi, T K 2008 Between Peace and analysis-how-m23-was-rolled-back/ [Last Justice: informal mechanisms in the accessed 4 January 2014]. DR Congo. Pp. 359–391 in Aertsen, I, O’Reilly, M 2013 M23 Surrendered, But Arsovska, J, Holger-C, R, Valiñas, M, and Where Will Its Soldiers End Up? Interview Vanspauwen, K (eds.) Restoring Justice with Arthur Boutellis. International Peace after Large-scale Violent Conflicts: Kosovo, Institute, 15 November. Available at: DR Congo and the Israeli-Palestinian case. http://www.theglobalobservatory.org/ Devon: Willan Publishing. interviews/621-m23-surrendered-but- Kigambo, G 2013 Museveni’s Dilemma as Ex- where-will-its-soldiers-end-up-interview- rebel Leader Makenga Now Runs into His with-arthur-boutellis.html [Last accessed Arms. The East African, 9 November. Avail- 11 January 2014]. able at http://www.theeastafrican.co.ke/ Peace Agreement Between the Govern- news/Uganda-dilemma-over-Makenga- ment and Le Congres National Pour La as-M23-gives-in-/-/2558/2067020/-/ Defense Du Peuple (CNDP) 2009 Goma, ue55ykz/-/index.html [Last accessed 4 23 March 2009 (referred to as ‘March 23 January 2014]. Agreement’). McKnight: Surrendering to the Big Picture Art. 7, page 11 of 11

The Prosecutor v. Bosco Ntaganda, ICC Sriram, C L, Martin-Ortega, O, and Her- Pre-Trial Chamber I, 22 August 2006, ICC- man, J 2010 War, Conflict, and Human 01/04-02/06. Rights. London and New York: Routledge. The Prosecutor v. Thomas Lubanga Dyilo, Stearns, J K 2011 Dancing in the Glory of ICC Trial Chamber I, 14 March 2012, ICC- Monsters: The Collapse of the Congo and 01/04-01/06. the Great War of Africa. New York: Public The Prosecutor v. Germain Katanga and Affairs. Mathieu Ngudjolo Chui, Pre-Trial Cham- Stearns, J K 2013 As the M23 Defeat Nears, ber I, 30 September 2008, ICC-01/04- More Questions than Answers. Congo 01/07. Siasa: A Blog on Congo, Its Politics and Protocol Additional to the Geneva Con- Tribulations, 30 October. Available at ventions of 12 August 1949, and relat- http://congosiasa.blogspot.be/2013/10/ ing to the Protection of Victims of Non- as-m23-nears-defeat-more-questions- International Armed Conflicts (Protocol than.html [Last accessed 4 January 2014]. II), 8 June 1977, 1125 UNTS 609. United Nations, Office of the High Com- Prunier, G 2009 From Genocide to Continen- missioner for Human Rights 2010 tal War: the ‘Congolese’ Conflict and the Report of the Mapping Exercise document- Crisis of Contemporary Africa. London: ing the most serious violations of human Hurst & Company. rights and international humanitarian Radio France Internationale 2014 Le law committed within the territory of the Rwanda et l’Ouganda accusés de soutien Democratic Republic of the Congo between au M23 par un nouveau rapport de l’ONU, March 1993 and June 2003. Geneva, Swit- 6 January. Available at: http://www.rfi.fr/ zerland: OHCHR. afrique/20140106-rdc-rwanda-ouganda- United Nations Security Council Final soutien-m23-nouveau-rapport-onu [Last report of the Group of Experts on the accessed 11 January 2014]. DRC submitted in accordance with Rome Statute of the International Crimi- paragraph 4 of Security Council reso- nal Court (last amended 2010), 17 July lution 2021 (2011) 2012, S/2012/843, 1998. 15 November 2012 (referred to as ‘UN Sawyer, I 2013 Dispatches: After the M23 – Group of Experts Report on DRC’). Congo’s Next Challenges. Human Rights United Nations Security Council Resolu- Watch Dispatch, 5 November. Available tion 2098 2013 [on extension of the man- at: http://www.hrw.org/news/2013/11/ date of the UN Organization Stabilization 05/dispatches-after-m23-congo-s-next- Mission in the Democratic Republic of the challenges [Last accessed 2 January Congo (MONUSCO) until 31 Mar. 2014], 2014]. 28 March 2013, S/RES/2098 (2013).

How to cite this article: McKnight, J 2014 Surrendering to the Big Picture: Historical and Legal Perspectives on Accountability in the Democratic Republic of Congo Following the Defeat of the March 23 Movement. Stability: International Journal of Security & Development, 3(1): 7, pp. 1-11, DOI: http://dx.doi.org/10.5334/sta.de

Published: 17 February 2014

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