Mapping Report > Section I. Inventory of the most serious violations > CHAPTER V. Legal classification of acts of violence > A. War crimes > 5. Issues around the classification of armed conflicts in the DRC

It is difficult to classify all of the various armed conflicts that affected the DRC all over its territory between 1993 and 2003. Depending on the time and place, the DRC experienced internal and international armed conflicts and internal conflicts that subsequently became international. Whilst, at times, the presence of foreign armed forces fighting on DRC territory points to the international nature of the conflict, at other times certain acts of ethnic violence in several regions seem to point more towards internal conflict. Similarly, whilst the war that led to the Mobutu regime being overturned by the AFDL originally appeared to be an internal conflict, it subsequently became apparent that it was more international in nature, with the acknowledged participation of foreign forces on both sides. In respect of the armed conflict between Rwandan and Ugandan forces in Orientale Province, the peace agreements signed by the belligerents with the DRC, in which they agreed to withdraw their troops from Congolese territory, clearly points to its international character.⁸⁷⁶ Nonetheless, some time is required to determine the nature of certain conflicts reported in the previous pages and consequently, the legal regime applicable to them.

1993-1996: Regional crisis

Persecution of the Kasaians in Shaba (Katanga)

The numerous acts of violence directed against the Kasaians from March 1993 onwards, during a campaign of persecution that resulted in large numbers of victims, are not war crimes but crimes against humanity, which will be dealt with in the next section. It is difficult to see this dramatic episode in Congolese history as a conflict pitting two armed groups against each other, insofar as the Kasaians were not organised into an armed group capable of carrying out military operations. It would therefore be seen instead as internal unrest which, though highly intense, cannot be characterized as internal armed conflict.

Ethnic war in the Masisi region (North Kivu)

The legal classification of the acts of violence that took place before the arrival of the ex-FAR/Interahamwe, in July 1994, depends on the nature and degree of organisation of the militias involved and the intensity of the violence. The report of the Investigative Team of the Secretary-General in the DRC in 1998 concluded that the intensity of the violence resulting from the inter-ethnic fighting over land between Hunde and Banyarwanda in Masisi from 1993 onwards was “sufficiently serious to trigger the application of Common Article 3 of the Geneva Conventions, ratified by Zaire, which applies to non-international armed conflicts.”⁸⁷⁷ This statement is supported by the Mapping Exercise investigations, which revealed that several violent incidents that caused numerous victims took place between 14 February and 7 September 1993. Although the Team is not able to confirm the figures on the losses of human life and the massive displacement of populations, the fact that such figures were reported by reliable humanitarian workers operating on the ground is undoubtedly an indication that suggests a level of intensity beyond the minimum threshold required for such acts of violence to be classified as internal armed conflict. Assessing the degree of organisation of the Hunde and Hutu militias in North Kivu at this time is more complicated. The key questions on the existence within these militias of a clear command structure and their capacity to carry out real military operations would need to be examined in more detail. At first sight, the heavy toll of inter-ethnic violence which, according to some reports, resulted in the deaths of thousands of victims, caused hundreds of thousands of people to be displaced⁸⁷⁸ and prompted the creation of ethnic enclaves seems to confirm that these were organised attacks rather than spontaneous violence. The MAGRIVI [Mutuelle des agriculteurs du Virunga] and other militias involved in the violence also proved their ability to lead coordinated attacks on several occasions. Furthermore, the fact that the MAGRIVI existed as a simple agricultural cooperative with an organisational structure and figures of authority, before it was radicalised, seems to indicate that it had the minimum level of organisation necessary to satisfy the criteria set out in international humanitarian law in relation to internal conflict. In this respect, the numerous intentional killings directed at the civilian population during this period could be classified as war crimes.⁸⁷⁹

The arrival, in July 1994, of refugees and foreign forces (the ex-FAR/Interahamwe) did not change the legal nature of the conflict or the acts of violence committed. An internal armed conflict cannot become an international armed conflict unless a a third-party State intervenes militarily in the conflict or if b some of the parties to the conflict are acting in the name of said third-party State.⁸⁸⁰ It cannot be argued that the ex-FAR were at this stage the army of a third-party State nor that they were acting in its name or as its agent.

The arrival of the ex-FAR and Interahamwe did, however, contribute dramatically to exacerbating inter-ethnic tension, increasing the level of violence and intensifying armed conflict within the region. The exponential proliferation of arms in the region probably increased the toll of violent incidents in Mutobo (17 November 1995), Bikenge (9 December 1995), Osso (3 February 1996) and Mokoto (12 May 1996).⁸⁸¹ The existence of military training camps organised by the ex-FAR/Interahamwe for the Hutu militias in the Masisi region helped them to organise more effectively. The numerous murders committed by the Hutu and Hunde militias at the time, in particular during the attacks on Mutobo and Bikenge in 1995, and on Osso and Mokoto in 1996,⁸⁸² could thus be classified as war crimes. The multiple atrocities committed during this period by the FAZ, directed against civilian populations, in particular in December 1995 in Masisi and in May and June 1996 as part of Operation Mbata (in Vitshumbi, Kibirizi and Kanyabayonga),⁸⁸³ could also be classified as war crimes committed as part of an internal armed conflict.

1996-1998: First war

With all the information available today, the importance of the role of third-party States in the first war, which led to the overthrow of the Mobutu regime, cannot be dismissed. Although, in 1998, the Investigative Team of the Secretary-General in the DRC believed it was not in a position to classify the type of armed conflict that took place in the Congo during this period, whilst noting the active participation of Rwanda in the conflict,⁸⁸⁴ this is no longer the case. The involvement of Rwanda and Uganda in the conflict, from the outset, in setting up and organising the AFDL, operational planning and logistical support, such as providing weapons and training to some of the combatants, is now recognised by the highest authorities in the countries concerned.⁸⁸⁵ The military operations of the AFDL were placed under the command of Colonel James Kabarebe, a Rwandan officer who, by the end of the war, had become the ad interim Chief of Staff of the Congolese armed forces under the new Government.⁸⁸⁶ The information gathered both by the Investigative Team of the Secretary-General and by the Mapping Team indicates that Rwandan officers were de facto commanders, particularly in Shabunda (South Kivu), Kisangani (Orientale Province) and Mbandaka (Équateur), even though Congolese officers from the AFDL were supposed to be senior in rank to them.⁸⁸⁷ The active involvement of elements of the Ugandan armed forces (UPDF) was also confirmed in several places, such as Kitale, Kibumba and Mugunga, in North Kivu, Kiliba in South Kivu and in Orientale Province. All of this information serves to confirm the international nature of the armed conflict that took place in the DRC between 1996 and 1998, i.e. during what is commonly known as the first war.

It is fair to say that the exact timing of the start of the international armed conflict remains a moot point. Foreign troops were certainly operating in South Kivu at the time of the attack on Camp Runingu on 13 October 1996,⁸⁸⁸ and even earlier, during the attack in Lemera, which began on 6 October 1996 and which involved the Rwandan army.⁸⁸⁹ It is sufficient here, in terms of the generic classification of crimes, to conclude that from mid-October 1996, the war crimes described above took place in the context of an international armed conflict. During this period, the prohibited acts directed against civilian populations by all the warring groups could be classified as war crimes even though they were perpetrated far from the front line. The same applies to the numerous crimes committed by the FAZ as they withdrew to Kinshasa. Throughout the withdrawal, from the Uvira region to Kinshasa, the FAZ and ex-FAR/Interahamwe committed multiple killings, rapes and looting, as described in this report, which could be classified as war crimes.

1998-2001: Second war

This period is characterised by the intervention on DRC territory of the regular armed forces of several States, fighting with or against the Congolese armed forces, as well as the involvement of numerous groups of militiamen. As the Special Rapporteur on the situation of human rights in the DRC observed: “The DRC is bedevilled by various armed conflicts. Some international, others internal and yet other internal conflicts that have been internationalised (see E/CN.4/2000/42, para. 20). Participants in these conflicts include at least eight national armies and 21 irregular armed groups.”⁸⁹⁰ In spite of the signing of the Lusaka ceasefire agreement, in July 1999, by the DRC, Angola, Namibia, Uganda, Rwanda and Zimbabwe and to which the RCD and MLC rebel groups subsequently became party, providing for compliance with international humanitarian law by all parties and the definitive withdrawal of all foreign troops from the national territory of the DRC⁸⁹¹, the fighting continued. On 16 June 2000, the Security Council asked all parties to put an end to the hostilities and demanded that Rwanda and Uganda, which had violated the sovereignty of the DRC, should withdraw their forces from DRC territory.⁸⁹² It was not until 2002, following the signing of two new agreements, the Pretoria agreement with Rwanda and the Luanda agreement with Uganda, which provided for the withdrawal of their respective troops from DRC territory, that the withdrawal of foreign troops from the country actually began.⁸⁹³ Thus, both the participation of foreign armed forces on Congolese territory and the direct support in terms of equipment, weaponry and combatants provided to several rebel groups throughout the period of the “second war” confirm that an international armed conflict was taking place in the DRC at the same time as internal conflicts between different groups of Congolese militiamen.

The numerous crimes committed by the RCD (and its various factions), Mayi-Mayi groups and the ex-FAR/Interahamwe against civilian populations, in particular the systematic murders, rapes and looting described in the preceding pages, could be classified as war crimes. This period was also marked by large-scale massacres, such as those in Kasika⁸⁹⁴ and Makobola⁸⁹⁵, in South Kivu, as well as by numerous other massacres committed repeatedly in North and South Kivu, Maniema, Katanga and Orientale Province. The same applies to the murders, rapes and looting carried out by Rwandan and Ugandan forces, in particularly during their advance from Kitona, in the Bas-Congo region, to Kinshasa in August 1998,⁸⁹⁶ and similar crimes committed by the Forces armées angolaises (FAA) all along the main Moanda -Boma -Matadi-Kisantu road,⁸⁹⁷ in Bas-Congo. Stopping the turbines on the Inga dam, in the same province, which supplied electricity to a large part of the city of Kinshasa, by elements of the ANC/APR/UPDF, caused the deaths of numerous people.⁸⁹⁸ “Making property essential to the survival of the civilian population unusable” in this way could be classified as a war crime under the rules of international humanitarian law.⁸⁹⁹

The air bombardments of Kinshasa by the Zimbabwean defence forces (ZDF) in August 1998⁹⁰⁰ and of Businga and Gemena, in Équateur Province, by the FAC in December 1998⁹⁰¹ were also carried out in violation of the rules of international humanitarian law and could be classified as war crimes, both in themselves and taking into account the disproportionate effect from the point of view of losses of human life amongst the civilian population compared with the military advantage expected. Furthermore, the use on this occasion of highly imprecise home-made bombs, as in Businga, would also appear to violate the rules of international humanitarian law, which prohibit “attacks which employ a method or means of combat which cannot be directed against a specific military target, or the effects of which cannot be limited”.⁹⁰²

During the confrontations between the Rwandan army and the Ugandan army for the control of the town of Kisangani, the use of heavy weapons in areas densely populated by civilians caused the death of several hundred civilians and the destruction of a large amount of civilian property. The first confrontation, between 14 and 17 August 1999, is thought to have caused the deaths of at least 30 people in the civilian population; the second, in May 2000, is thought to have resulted in the deaths of at least 24 people; the death toll of the third, in June 2000, varies between 244 and 760 depending on the source. These last two episodes have been categorically denounced by the Security Council, which has expressed its “outrage at renewed fighting… deploring the loss of civilian lives, the threat to the civilian population and the damage to property inflicted by the forces of Uganda and Rwanda on the Congolese population.”⁹⁰³ Some of the acts committed by the two belligerents could constitute violations of international humanitarian law, in particular the obligation to respect the principle of distinguishing between civilians and combatants and between civilian property and military targets, and could thus be classified as war crimes. Whilst the UPDF forces made some effort to limit the loss of human lives, the International Court of Justice, in its decision on DRC v. Uganda, nonetheless considered that there was “credible evidence sufficient to conclude that the UPDF troops failed to distinguish between civilian and military targets and to protect the civilian population in fighting with other combatants”.⁹⁰⁴ This general observation can also be applied to APR troops, according to the information gathered by the Mapping Team.⁹⁰⁵

2001-2003: Towards transition

Ethnic conflict in Ituri

The acts of violence that shook the province of Ituri, in particular the ethnic conflicts between the Lendu and Hema, clearly reached a sufficient level of intensity to be classified as armed conflict. The ICC⁹⁰⁶ and ICJ⁹⁰⁷ have confirmed the international nature of the conflict. As a result, the crimes listed by the Mapping Team committed in Ituri between June 1999 and 2 June 2003,⁹⁰⁸ directed against Congolese civilian populations, could be classified as war crimes committed in the context of an international armed conflict. ⁹⁰⁹ Similarly, the murder of two MONUC military observers in Mongbwalu, on 13 May 2003, by elements of the FNI could be classified as a war crime as an attack on personnel involved in a peacekeeping mission.⁹¹⁰ As regards the period after 2 June 2003, the date on which the Ugandan troops effectively withdrew, the continuing armed conflict met the criterion as to intensity and the level of organisation of the different armed groups involved.⁹¹¹

Regional conflict in Katanga

The period from the start of 2001 to the end of the time specified in the Mapping Team’s Terms of Reference was characterised by open conflict in the province of Katanga between the FAC and Mayi-Mayi forces. The involvement of Rwanda in the operations carried out by the RCD and the APR itself in the area, and that of the ZDF alongside the FAC, give the conflict its international character. After the withdrawal of Rwandan troops from the DRC, following the Peace Agreement signed in Pretoria on 30 July 2002, the intensity of the conflict remained high and the level of organisation of the groups involved in the region was such, that it is possible to confirm that it was an internal armed conflict. In fact, some of the most serious incidents that took place during this period, in particular the bombardments that the FAC carried out indiscriminately in Ankoro, in November 2002, which cost the lives of over 100 civilians and caused the destruction, most frequently by fire, of over 4,000 houses, including schools and hospitals, could be classified as serious violations of international humanitarian law and war crimes.⁹¹²

As a result, some intentional killings, rapes, destruction and looting of property, as well as other crimes committed by the FAC and Mayi-Mayi between January 2001 and June 2003 could be classified as war crimes, whether it was deemed to be an international or internal conflict.