Dr. Alphonse Muleefu | DR Congo v. Rwanda: Self-Defence, Sovereignty & International Law

The Democratic Republic of the Congo has filed a new case against Rwanda at the International Court of Justice, accusing Kigali of violating its sovereignty and committing serious breaches of international law. But what does the law actually say?
 In this episode of The Long Form Podcast, international law scholar and former ICTR and ICC legal officer Dr. Alphonse Muleefu explains the legal issues at the heart of one of Africa's most consequential international disputes. We explore self-defence under international law, state sovereignty, the UN Mapping Report, the concept of "lawfare," and the strengths and weaknesses of both Rwanda's and the DRC's legal arguments. 

This is a conversation for anyone seeking a deeper understanding of the legal dimensions of the conflict in eastern Congo.

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Transcript

SPEAKER_05 0:42

This conversation is brought to you by Akagira Medicines, a biotech company that is majority owned by the Roman people. Akagera Medicines is not only committed to expanding access to healthcare, but also supporting conversations that inform, educate, and empower. Learn more about Akagera Medicines by scanning the QR code on your screen or by visiting their website at Akagera Medicines.com. In June, the Democratic Republic of Congo filed a case against Rwanda in the International Court of Justice. This is the third time that it has attempted to take Rwanda before the highest court. This is the third time the DRC has attempted to take Rwanda before the world's highest court over the conflict in the Eastern Congo. Congo argues that Rwanda has repeatedly violated its territorial integrity and committed serious breaches of international law. Rwanda argues that its actions are driven by one overriding concern: national security and the continued threat posed by armed groups operating from Congolese territory. So who's right? My guest today on the Longform Podcast is Dr. Alphonse Mulefu, a former legal officer at the International Criminal Tribunal for Rwanda and the International Criminal Court, as well as the author of a book titled The Independence of the International Criminal Court between a Rock and a Hard Place. Dr. Mulefu is one of Rwanda's leading scholars of international criminal law. This conversation is not about taking sides, it's about understanding one of Africa's most important legal disputes. Dr. Mulef. Yes. Welcome to the long form.

SPEAKER_02 2:24

Thank you for having me.

SPEAKER_05 2:25

You're one of the unfortunate guests who've been on this podcast more than once. So it's a real privilege. No, I'm a real privilege. Some would say it's unfortunate because you know you have to sit down, you're three hours of your day just talking to me. And so it's actually a privilege for you to for me for uh for you to come and sit down with me. And I don't take it for granted. Thank you very much. So before we discuss Rwanda and Congo, I want us to I want you to help us to think like judges. The head the this is the headline from the Associated Press. Congo says Rwanda violated international law. But judges don't read headlines. So when this case eventually comes before the International Court of Justice, Rwanda versus Congo, what are the legal questions that the judges will attempt to answer?

SPEAKER_02 3:35

The International Court of Justice, like any other court, even domestic courts, the first thing they do once they get an application, they will first examine whether they have jurisdiction. What do you mean by that? Jurisdiction if they have powers to hear the case. And in this case, I I think if we to understand international law generally is that the international law is about the relationship between states. And states since there is no body, I mean like a body that is above states, because all states are presumed to be equal, international law operates where states have given consent. So even if the international court of justice is a body of the UN, because it was created together with the UN Charter that creates the the United Nations, meaning that all UN member states are parties to the International Court of Justice. By default, it would mean that the court the court has jurisdiction over all these states. But that's not the case. In every matter that the court is going to hear, it has to establish whether the state that particular state, all the states, that the the disputing states have consented to the jurisdiction of the court in that particular subject. So the first thing the judges will have to do is to be satisfied that they have jurisdiction, but that is not the only thing they would have to be satisfied with. They also have to be satisfied that there is a reasonable basis in terms of law and facts for them to hear the case. So that is the first thing they do. And uh consent can be given before the incident. So for example, when states are parties to an international agreement, you find that states have consented that if a dispute ever arises out of this agreement, that dispute will be decided by the International Court of Justice. So it means that in that circumstance, the the the state has given consent before the dispute arises. Sometimes two countries that have a dispute may agree and say, okay, there is a disagreement, we have a dispute over this, it could be a board uh dispute or something else, and then they say, Okay, we agree that we take this dispute before the International Court of Justice so that it can be resolved. So the consent can be given before or after the dispute. So what now, since there is an application, the court will have to sit down and decide that whether they have jurisdiction and whether they are rigid breach of international obligations are well to a reasonable ground substantiated in terms of law and fact to be able to so it will it will have to request the respondent state to submit its uh its position.

SPEAKER_05 7:34

So now that now that you've kind of helped us understand the overall uh workings, now there's something that I don't understand about this case that came out around the 26th of June this year. It's not the first time that the Congolese government has attempted to sue Rwanda. Actually, the first time was in 1999, the second time was in 2002, and now this year. And the first time, if I'm not mistaken, in 1999, the Congolese state decided to revoke its complaint. The second time was in 2002, and the court decided in its judgment that it did not have, as you said, jurisdiction it did to are to even hear the the the argument. Now if just using basic logic, if I fall down and scratch myself the first time because I've tried to do something, logic will dictate that I will not try to do the very same thing because I'll probably have the very same outcome. Pretty much, if I in my reading, had almost the same facts as what is happening today. The Congolese state uh said that Rwanda is there's the illegal aggression and human rights abuses, as well as, if I'm not mistaken, exploitation of natural mineral uh minerals, uh natural resources, and that the court the international criminal court international court of justice said no, we don't want to hear it. They've come up come up with almost the very same facts. Is are the Congolese legally stupid or am I the stupid one? I'm reading the documents and they look the same. Who what don't I understand?

SPEAKER_02 10:05

So as I told you, when um uh uh a state uh uh is is uh applying or if it is firing when it is firing a case before the International Court of Justice, it has to give the legal basis and the legal basis for the jurisdiction is where uh this the the the the applicant state tries to explain where DRC yes so DRC try to explain where Rwanda has given consent to the jurisdiction of the International Court of Justice. So in 2000 and you're correct, 1999, they they wanted they filed actually a case, it was between it was against Rwanda, Burundi, and Uganda. And they they they they wanted that uh Rwanda uh since we were focusing on Rwanda to consent what you would call say like to give permission, to give permission to the to the jurisdiction, to the court that it can hear the case, which Rwanda did not give, and they decided not to proceed. Then they filed the case in 2001 for alleging violations in some specific uh international agreements that Rwanda is part of, including the the UN Convention on Punishment and Repression of the Crime of Genocide. Then Rwanda had a reservation because under international law, when states are ratifying or when they they are becoming party to an international agreement, they have a right to make reservations on certain provisions. So states can pick and choose. So yes, so remember, international law depends on the consent of states. So if I don't want to do something, you you can't force me. You can't force me. So at that moment, uh Rwanda had a reservation that on a provision that provided jurisdiction to the International Court of Justice.

SPEAKER_05 12:36

So Rwanda allowed, did sign that document.

SPEAKER_02 12:39

It did, it was a party to that document. But that one article or two articles, it said we don't want to. We don't accept it to this provision. So at that particular time, the court had no powers, it had no jurisdiction over Rwanda because Rwanda did not accept the jurisdiction. So what DRC is uh bringing now is that since 2008, that Rwanda has withdrawn that reservation. Has it? In the submissions they have made, they have uh linked to a statement to a communication that was given to the Secretary General of the United Nations that it was withdrawing those reservations on different international agreements, including those that they are basing on.

SPEAKER_05 13:39

So wait, wait, yeah, so so so remember this is not all of us are experts at law. So help me make make sense. So in 2002, the court ruled that it could not it could not hear the argument because Rwanda had not allowed for that. They we uh ICJ, the International Court of Justice, does not have jurisdiction on Rwanda based off of that thing. Are you saying that since 2002, so it's over close over 20 years, Rwanda has allowed.

SPEAKER_02 14:25

That's where I was going to reach.

SPEAKER_05 14:28

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SPEAKER_02 17:45

So in 2008, and and and and and that withdrawal has to be confirmed that that indeed is the case. Because I'm talking about what the globalists are saying. Yeah, what they are what they have submitted in their filing, is that Rwanda withdrew its reservation on the provisions that it had that were giving jurisdiction to the court? So it now the International Court of Justice can hear Rwanda on the case that arises from the convention, from the genocide convention. How does the state rescind its reservations?

SPEAKER_05 18:27

Does it just wake up? Is it the president making a declaration? Is it uh the Minister of Foreign Affairs going on an interview on the long form, for example? How do you do that?

SPEAKER_02 18:40

No, it has to be written. For the international instruments to be valid, they have to be written and submitted to the UN and communicated to other member states. Okay. Written by who? The one that has powers. The one that has powers could be the Minister of Foreign Affairs, could be any individual the state has designated as someone with powers to do so. Okay. So, but uh I wanted it to kind of because the question was, is the DRC stupid stupid or you or you're stupid? I i i i it is neither of the two. Or maybe it's both. Where it becomes the I I will not use the exact characterization, but where it becomes a little tricky for for the application for the DRC is that the the withdrawal of the reservation does not have a retroctive, a retroactive effect.

SPEAKER_05 19:42

So for me as a person who thankfully went to the school of law of the national university, I understand what that means. For a normal person, what is retroactive?

SPEAKER_02 19:54

So so the country cannot be held or under the standards on which it had not subjected itself before it consented to those standards. So, for example, if indeed the reservation was withdrawn in 2008, the court will only have jurisdiction on those matters from what happened after the withdrawal. Exactly. So to bring allegations that happened or conducts that allegedly happened before 2008 cannot be received because Rwanda was not, had not given jurisdiction to the International Court of Justice. And there is a decision about that. So the court cannot contradict itself because in 2006 it said that we don't have jurisdiction on these matters.

SPEAKER_05 20:49

Yes. No, that's confusing. Again, you're saying this and it makes perfect sense to me. One of one of the law lecturers who taught me back in the early 2000s had studied from some of the the best Congolese universities. There are good lawyers in the DRC. But when you read this complaint, it seems like it was not written by lawyers.

SPEAKER_02 21:41

So so maybe to interrupt you, so for the allegations they are making, there are those that starts in '96 up to today. Yes. So maybe in their view is that even if uh some of the information may be thrown out, at least. There is part of that information that may be retained. Yeah. Background? Exactly. Maybe for me, I don't, I think it is a political, it's a DRS strategy of multiplying forums. Maybe to put it to give it a big context, you will realize that they have filed a case with the East African Court of Justice. They have filed a case with the African Court of Human and People's Rights. And now they have filed a case with the International Court of Justice. They, if we can go into other forms of dispute resolutions, because this is one form of dispute resolution that provided for under international law. But there is also political and diplomatic approach that is also part of as one of the recognized forms of dispute resolution. You will see that they they went to Angora, we have Nairobi process, we've moved it to Doha, we have Washington, we have, if you go to the military approach, you will see they went to East African community, they went to SADEC, they went into individual bilateral agreements. And if you go to the international forums, other international organizations, you will see that in every international organization where they have opportunity, they will make the case. Go even to football. So this tells you that there is a policy, I would say, to multiply without necessarily the intention of winning the case. In fact, if you see when the the the the 2001 case was filed and when the court was able to determine on jurisdiction, it was in 2006. That's five years later, only to determine on jurisdiction. Before they could have, because had they determined that they have jurisdiction, then they would have gone into examining the case in substance.

SPEAKER_05 24:18

So it kind of seems like you're arguing that the case is less about winning the argument than actually winning the argument in the court of public opinion.

SPEAKER_02 24:32

Absolutely. Absolutely. There is no other way you can explain it. The segmentation of elements of the conduct that is being sought to be resolved being it's uh it's called forum shopping. That argument was made by Rwanda and it was rejected. It was rejected on the ground that what is submitted before the East African Court of Justice and the African Court of Human and People's Rights are not the same. But it is very difficult to say that different elements of the same context can be examined without touching on the other aspects of the of the same dispute. So, and I think I think that is also what the the good the the the difficult part with international courts and and tribunals is that there is no one that is there's no body. Again, my body sounds that is above other institutions. So it is not that the International Court of Justice is above other tribunals or courts. They all work independently, so it would be up to the court to choose either, it is in its discretion powers, to say, I think we are likely to come up with results that contradict or overlap and may undermine our position to say maybe these cases are related. Should we wait and see? Because they're already the East African Court of the East African Court of Justice and the African Court of Human People's Rights have already determined that they have jurisdiction. So now we are going to have the International Court of Justice also take this long to determine whether they have jurisdiction over these allegations. And and and you you ask yourself, wouldn't it have made sense if all these separate firings had put into one and brought before one court?

SPEAKER_05 27:13

No, I I literally don't understand. You know, one of the cornerstones of the UN Charter is that states cannot violate another country's sovereignty or or territory. Yet Rwanda argues that the continued presence of armed groups like the FDLR inside Eastern DRC gives it the right to take defensive measures. So again, you're the law expert, so help us understand this. Beyond some of the politics, where is that legal line? Where does self-defense justify crossing another country's borders? And when does it become unlawful aggression? Where's that line? And who gets to define it?

SPEAKER_02 28:02

So the UN charter is clear that states should not use force or threat of use of force against other states. But the right to self-defense is inherent, it is a natural right. So you so it's not in the UN Charter? No, no, it is in the UN Charter. Okay. So what the UN Charter says is that the UN Charter does not prohibit states individually or correctively to defend themselves in case of an attack. In case of an armed attack. So then the question becomes of whether there has been an attack that justifies self-defense or not. Because, as we said, the UN prohibits states from use of force or threat of use of force against other states. So if there is an armed attack on another state, that state has a right to defend itself. So Rwanda's argument is that there have been successive attacks from the territory of DRC to Rwanda. And Rwanda has a right to defend itself. Then the question is of a non-state actor. It's not the national army of the Congolese. Exactly. So, but you we move to the next step, which is unwillingness or inability of the host state to deal with the threat, because you don't want to be a threat to other states and simply say, I'm not responsible, but people will operate on my territory and cause threat to other states.

SPEAKER_05 30:03

Or maybe they'll say that it's not that I'm not responsible, I wish I could be, but I'm physically unable to.

SPEAKER_02 30:11

So in that situation, and I have made this argument elsewhere, you you you, the state that is willing but unable, you can invite the victim state, work with it to deal with the threat. Then you take away the the mistrust. The excuse. The excuse. But then if what happens if I don't want to? So if you don't want to, then I have my right, because the primary responsibility of a state is to is to protect not only its territory, but its citizens and interests. So you cannot be adamant when I'm being harmed and hope that I don't intervene to deal with the threat that is being caused.

SPEAKER_05 31:15

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SPEAKER_02 34:56

So the the the the you would not again when it comes to so these are these are two different branches of law. The laws of going to war are different from the laws of fighting.

SPEAKER_05 35:17

What do you mean? It sounds the same. The laws of going to war are different from the laws of fighting.

SPEAKER_02 35:22

Yes. So the laws of going to war are the ones that we've talked about that are found in the UN Charter that says the states are not supposed to use force in their relationship, but they have a right to self-defense the moment there is an attack, an armed attack on their territory that violates their territorial integrity. International law does not set the threshold on which an attack has attack. The threat of attack or an attack. It does not say that you have to have been, and a city should have been bombed to the ground to be able to defend yourself. Even if it is one single shot. Even if it's a storm. Yes, the use of the use of military force of an AMD force of one state on the territory of another state is in itself. Even if the victim state does not respond, it is an act of aggression. So the question is, and here is where it becomes where the thinking has to go, is that these conducts are by a non-state actor. But I think it is not very difficult to establish a relationship between this non-state actor with the state. And I mean where they operate.

SPEAKER_05 37:18

And I think to be honest, if you look at a lot of the group of experts' reports, they do agree that there is a level of cooperation between the DRC army and FDLR in terms of the fight against M23 as well as acts and attacks against uh the Rondophones and also the state of Rwanda. So I don't the argument, your argument does not have to be, I guess, too hard to put forward. There's media, there's international reports that actually say this, that say that, you know what? The the Congolese government is not a hundred percent, it's it's not hands-off. You know, it's not saying that, you know, these FDL are over there, we don't do nothing with them.

SPEAKER_02 38:19

No, you you it that's even well, uh that goes to corroboration or complicity or what of the conduct of FDL. But even if that was not there, the mere fact is that they are on the territory of DRC, DRC has the primary responsibility of everything that happens on its territory. Consequently, it should be able to, for purposes, even for purposes of good neighborhoodness, not to allow its territory to be used against a neighboring state.

SPEAKER_05 39:01

You know, what you're saying is is really interesting. So right now, you know, we sometimes we we forget that there are there are conflicts outside our region. Right now, there's a big conflict between in the Middle East, between Hezbollah and the state of Israel. And you said something that that reminds me of uh something that Trump said when he was talking to the Israelis, he was saying that you know if Hezbollah sends a drone into Israel and it lands in a desert, you should not send missiles into Beirut. That somehow it's not done. But it almost seems like within the law it's allowed. So that's what it seems like it's allowed.

SPEAKER_02 39:58

Let me let me try to say what I did not finish. So you shouldn't send the bomb to Beirut is the laws of fighting. Meaning in the laws of fighting, there are principles, humanitarian principles. The principle of proportionality, the principle of distinction, the principle of not causing unnecessary suffering. So those principles of humanitarian law concern the laws of fighting. You might have a right to fight, but are you fighting correctly? Or should you? But generally, we are not talking about whether you had a right to fight or not, because the laws of fighting are not concerned with whether you had a right to fight or not, because their main purpose is humanitarian, is to ensure that because the international law understands that armed conflict is the worst that can happen to human beings. So the moment you have started fighting, you should at least try to fight humanly. So that's where some people would make arguments about proportionality. They would argue that we are not saying that Rwanda is not under threat, but we think its response is disproportionate. But then I think that argument comes from a tactical understanding of the magnitude of the harm the FDR poses to Rwanda. That is to say that if it launched a few attacks in Chinese, those it is not proportionate for Rwanda to put some kilometers or miles between where the incident took place and where the threat is coming from, to ensure that it protects its borders. What people fail to capture, I don't know if it is willingly or unwillingly, is the uh is the the genocidal intent of the FDLA, which touches on the survival of Rwanda. You cannot talk about the existence of Rwanda, given the fact that it suffered the genocide against the Tutsi, which the which constitutes if even if you read the constitution, unity is one of the fundamental principles on which uh post-genocide Rwanda is built. So an organization that carries that ideology undermines the survival of the state of Rwanda. It is not so much about the physical violence, it can, because it is not about the bullets or how many they are in terms of number, but it is the the fact that they are a threat to a national value which is unity. And that if put together and understanding the role of media in the genocide against the Tutsi, then you can understand that FDR is a threat. And if you consider the kind of the way the the hate speech has spread in the eastern part of DRC, you can easily establish a link and you say these elements are very dangerous.

SPEAKER_05 44:00

I guess the question is, right, if Rwanda is is not an outlier, in my opinion, on these kind of threats. Not may not the very same, but some of the countries that are are that are in conflict today, if you look at the Middle East, you look at what's happening in in Ukraine, you hear similar arguments of oh, it's not just even it's not just about the military, it's also the ideology. And that's why we need to do this, this, and this. I wonder, and and doesn't that kind of doesn't that worry you as you're you're a professor of of international law, is that it almost becomes less about the law and who has who can argue uh a threat profile better. Yes, Rwanda says, and some could say rightly or wrongly that this is a genocidal force, and because of our constitution and everything that you've said, we cannot allow this to happen. There could be another country that argues the very same. There is Uganda has is dealing with forces of the ADF. Israel is dealing with Hezola and Hamas, the Ukrainians are dealing with the Russians, and there are other conflicts around the world. Doesn't that almost create the words?

SPEAKER_02 46:06

It's going to be difficult to formulate a question there.

SPEAKER_05 46:08

Yeah, no, no, but like is it because you're you're seeing what you've said is that it's not just about the firearms, it's also about the intent. There are other countries that have the same argument. Now, where does that leave international law when it's about necessarily it's not about right or wrong or what the law explicitly says, but rather what a leader, what a country can decide is its threat level. Does that make sense?

SPEAKER_02 46:38

Yeah, actually it is very much connected to law because uh for any conduct to be codified, you have to have facts and the moral element of the conduct. So if you want to codify a conduct as let's say genocide, you have to establish a moral element. And one of the sources to be able to establish a moral element can be found through statements, but through a pattern of activities that are being conducted. So if there is if if you want to, it is not to say that uh we think FDR thinks like this. There is evidence in their statements and statements that are only are not only espoused by themselves, the members of FDR, but also by their the those that collaborate with them. And and and it is available on social media, it is available on television, it is a very available in their text. If if you you need it to there is a document on rearming X Far. This document was, I think, published in 1994-95. And there is one passage where they were interviewing Bagosora. Yes, and explaining that their intention is to come back and kind of uh finish what they had started.

SPEAKER_05 48:54

Do they actually say that? To finish off what they had started?

SPEAKER_02 49:00

I I wish I can I can quote exactly the same the same the same words, but that is an interpretation you get. And if you could see the kind of uh interviews that were made by those the uh leaders of XFAR when they were still in the camps near in 1996, 94, 95. 1996, that is before the Rwanda decided to go and forcefully return the refugees that were being held as hostages in those camps, you can clearly see that they had not changed their ideology from the moment they crossed the border. They continued to be the same. So that since we have not seen any disconnect from what happened then, from what happened from Rwanda in Rwanda to the conduct of FDR today and the targeted groups in the Eastern DRC, you can clearly see the intention of the group.

SPEAKER_05 50:25

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SPEAKER_05 51:47

Let me one of the things that you have to sometimes face as a lawyer is that sometimes you get a bad case. Where you know that your client is guilty, but your job as a lawyer is to represent that client with all your means and all your power, and to see if you can get them off. Now, with that in mind, let's assume for the sake of argument that everything that Rhonda says about FDL is true. Even though that might be the case, there are critics who say that repeated military excursions into another sovereign state over close to thirty years is stretching the bounds of self-defense and the fight against genocide. So now let's assume that you are the lawyer, you represent the DRC in the International Criminal Court. Legally speaking, what is the strongest argument against Ronda? How would you approach this problem if you were representing Kinshasa?

SPEAKER_02 53:41

That's a very I said I'd give you a tough case. No, that's not a tough case. That's contrary to because lawyers also have their moral convictions. You're not going to uh of course that is not to deny the right of defense of whoever that would be seeking assistance, uh legal assistance, but uh we have also to see it from the argument you are making is what I talked about, the the the argument of proportionality where where some argue that yes, there is a threat, but Rwanda's response it is disproportionate to the threat. But then you ask yourself, because this is also on record, you will see there is evidence that every time FDR has been weakened in all those interventions, they have been followed by a state policy of bringing them together, regrouping them, giving them support, and giving it a structure that allows them to operate again. Because that is the argument they say. In all these 30 years you've gone there, why haven't you finished the the threat? The job, the job. But I think it is not I would need to to to to have a conversation with those that maybe plan these kinds of that make those decisions. I don't think that the intention is to completely finish every fderer member. That would be even strange. What do you mean? Like, I don't think that Rwanda's intention is to make sure that every FDR member has been either captured or neutralized or repatriated or repatriated. No. I think the intention is not to allow them space to operate freely. So that requires cooperation between the two nations to ensure that they do not get space to operate. You know that the DRC government had to bring those who had even Fred up to the Central African Republic, who had gone to Cameroon, those who have gone to Europe and brought them together to constitute or to regroup so that they continue the. So you cannot you cannot completely disassociate the conduct of the DRC government in the fact that the threat has remained in Eastern DRC.

SPEAKER_05 56:58

I guess, and and I know uh that that question made you slightly uncomfortable, but if if I'm to get you, if you were, yes, we've all agreed that your moral standing would, your moral position would not allow you to take the job. But your argument is that if that was indeed your job, you would argue that it would be about proportionality. It would not be about the facts about whether or not there's FDLR, whether or not there have been attacks. It would be about, okay, were these attacks, this may be an attack in Kiniki, an attack here, was it worth this? Is that what you're saying? That that would be pretty much your legal argument. So the proportionality.

SPEAKER_02 57:48

So the the the actual let me let me try to so there are those who have argued on on the on on preemptive self-defense, which what do you mean by that? Uh to say that there is a threat, it hasn't happened, but it is imminent. So when there is an imminent danger of attack as a nation, do you wait until the threat happens? Because that's that's that's a question on which scholars have not agreed upon. There are those who say preemptive self-defense is not allowed. Because allowed by who? By international law. What does international law actually say? The international law, the practice, because international law develops from the practice of states, there are different ways international law develops. There are agreements. So, in terms of agreements, there is no preemptive self-defense. There is only self-defense in case there is an AMUD attack, which is clear provided for in the UN Charter. But if we see the practice of states, because another source of international law is customary international law, the state practice, you will realize that states will not wait until they are attacked if there is an imminent danger. And then for the case of Rwanda, it is not even about the imminent danger. There have been several attacks. So the question of proportionality, again, it depends on where you stand in understanding the threat, how big the threat is. If you see it from a tactical point of view, to say that let's say 12, 24 FDR special force entered the Musanze district and the and caused some death, destroyed a few houses, and then RDF ran after them and they crossed back into DRC. So then why would you pursue them up to, let's say, Uvira? Why don't you stop at the border? But as a state, why do you want to remain under a constant threat when another state that has a primary responsibility of what happens on its territory is not willing to cooperate? And you can easily show the connection between the group, the non-state actor, on which that is a source of the threat, and the government in a place.

SPEAKER_05 1:00:38

I guess you've said something which is you know a preemptive preemptive defense. And if you I I think I heard that that term for the very first time around 2002. So following obviously the attack on New York 9-11, then all of a sudden there was a push. Okay, let's let's the US decided, okay, we are going to argue that Afghanistan is a supporter of the Taliban, let's hit Afghanistan. Then they argue that, you know what, Saddam Hussein is also where there's a threat. So the the question then becomes is how do we ensure that international law does not become a victim of strong states?

SPEAKER_02 1:01:44

I you I wanted to clarify that one, there is of course they lack for many lawyers. There would be few lawyers who would argue that it was justified. But there are some who did. But but yes, but those who some who believed that it was justified before, basing on the evidence that it was presented before the United Nations as an indication of a threat, Iraq being a threat of my with weapons of mass destruction, came to realize that that was a fabricated sure. Yeah, so so we cannot use that as an example. As I said, for the case of Rwanda, it is not even about preemptive self-defense. I was trying to make an argument that a state cannot wait where there is imminent danger until the danger happens, so that it attack sometimes with the ex with the current technology, sometimes you would do you, you would do you you would end up being finished. So you so you you you you you there is no way if there is evidence of an imminent danger, you cannot say the state should hold should fold its arms until uh the it is attacked. We have statements because I said again we talked about intention. We have statements of different leaders working with the FDR, expressing their ill intentions about Rwanda. We have the FDR, which they are working with, making certain attacks on Rwanda. However, if you call them small, maybe they are small because Rwanda has been able to put up its its defensive mechanisms. Maybe we don't know how devastating they would have been had there not been those measures in place. So it could be uh it could be difficult to demand Rwanda to say, please go wait until the attack becomes so serious that we can and there is also the evidence, because people also tend to forget that before Rwanda's first intervention in the DRC, it is also on record. See how many times Rwanda made requests to the UN Security Council informing them to deal with the issue in the Eastern DRC. You will find numerous resolutions in which Rwanda made those statements. And the good thing at that time, Rwanda was a member of the UN Security Council as a non-permanent member state. So it is on record that Rwanda has raised the issue of FDR of the XFAR as a state to its territory, where before, and to all organs before it started intervening. And the international community, which has the mandate to maintain international peace and security through the US Security Council, did not do. And then we have the UN mission in Eastern DRC. You know, the the the the intervention brigade that was created African one. That was created. No, the one that yes, the one that was created in under the under MONUSCO, that defeated the 2012 2013 M23. Their next mandate was to defeat FDRR. What happened? They did not. And the arguments were that this this group has been integrated into the communities, it will be difficult to defeat. But those arguments were not made when it was about defeating M23. Because they were not integrated into the communities. So look, go to all the arguments. Because again, we can talk about the parts of laws of war. There are laws of going to war, there are laws of fighting, and the laws of how conflicts end. The laws of fighting are provided for in the Geneva Conventions and the Hague Conventions. The laws of going to war are within the UN Charter, as I talked about. Then the laws of how conflicts end are found in peace treaties. So go to all the peace treaties that have been signed between Rwanda and DRC. You will find that there is an obligation on the DRC to deal with the threat from these groups against Rwanda. And ask yourself, what have they done? Not one peace agreement, not the second, not the third. There is a list of agreements that have. So leave alone that. So how it turns that it is only the responsibility of Rwanda to deal with the issue, for me, honestly, it doesn't make sense. Because as I said, the laws of war, the theory on the laws of war, the just war theory, talks about three branches of law. There is going to war, there is how the fighting is supposed to take place, and there is how conflicts are supposed to end. Then states sit together, facilitated or mediated, they come to an agreement that this is what is supposed to be done to ensure that we have peace. Then you don't ask yourself, has what was supposed to be done on the other side been done, and then this state is going there?

SPEAKER_05 1:08:49

But I guess what you're arguing though is are the politics of it. I want to stay within the framing of the legal. Now, what I thought, what I found really interesting about some of the court cases, the latest court case, the 2026 court case, was just how much emphasis the 2010 UN mapping report was in terms of the evidence that the DRC is putting to showcase that indeed Rwanda could be found liable for genocide and acts against uh human rights. And you know, for me, that document, that 2010 document, the UN mapping report has seemed to haunt, it has really haunted Rwanda. It comes back over and over and over again. It has almost become this thing that if you want to beat Rwanda over the head, here's a document, here's a UN document, let us hit you over the head. Now, supporters of that document will say that it is the most significant human rights investigation ever conducted in the DRC. The critics of that report will say that many of its most serious allegations have actually never been tested in court. Now, I I and this is again, uh you're the lawyer here, so help me understand how dangerous is this report legally? And in your estimation, has Rwanda made a strategic mistake by allowing the allegations in this report, in this 2010 mapping report. Has Rwanda made a strategic mistake allowing its allegations to remain largely untested before an international tribunal?

SPEAKER_02 1:11:00

You know, law is a product of politics, even if law is not politics, but law is a product of politics, so sometimes you cannot avoid statements that are of a political nature. But if if you want to take to give a serious consideration to any document, you need to ask yourself how was it produced? How was it made? This is a document that was covering 10 years.

SPEAKER_05 1:11:44

For people who don't know, sorry to interrupt you. What was the 2010 UN map report?

SPEAKER_02 1:11:50

What was it about? Let me let me I I come to that, I think. So the the the the the the document focused on the situation that happened in DRC from 1993 to 2003. It was produced in 2006. Uh to 2000 and uh I believe it was produced in 2010, but it covered the period of uh 1993 to 2003. That's a period of 10 years in a for the the the the the the investigations were conducted, including to produce a report for a period of six months.

SPEAKER_05 1:12:45

Really?

SPEAKER_02 1:12:46

Yeah six months, six months, the team had six months to cover ten years in a in a context that is so complex, like DRC. And in their view, the the evidence, and that's why they always keep talking about to the court, the court should do so. I I don't want to sound as as I'm trying to reinforce a certain conspiracy theory. International law, especially also NGOs that advocate for the for the development of international criminal law in particular, have felt that for so long that DRC is a place where they should have an international criminal court of some sort or a hybrid one. I will not talk about the conflict of interest in terms of employment and all that, but that's one thing. But the seriousness, the serious nature of the allegations that are made in that report couldn't be accepted given the mandate, which is which was a very huge mandate, being produced within a short period of time in a situation that's so complex about subjects that are very sensitive. I think it was uh unfortunate that that decision was made. I have uh I have nothing to say about the allegations that are made because I I don't have uh I don't have uh facts about those allegations, but methodologically it is it is unfortunate. Maybe let me let me leave that on aside and tell you how the international community has, to a large extent, been uh unhelpful in terms of narrative creation, especially on DRC. You know that there is always the talk of about over about 10 million or 5 million Congolese that have it they keep it keeps changing. You know where it comes from?

SPEAKER_05 1:15:26

Yes.

SPEAKER_02 1:15:27

Tell me the the International Rescue Committee for purposes of its advocacy, the international what? International Rescue Committee. So it's not the UN No, no, no. The UN is the mapping report, and that is the the human rights part of it. But the International Rescue Committee produced a mortality-led report. And their conclusion was that if you consider the number of deaths that happen in sub-Saharan Africa and you compare those that happen in DRC, that DRC's death rate is excessive compared to those of other sub-Saharan African countries. To conclude, those excess deaths are attributable to the conflicts that have happened in DRC. So that's how we have 5.4 million.

SPEAKER_05 1:16:41

Okay. Wait, this okay, because this is the first time I've I'm I'm hearing this. Can you please repeat that? But help me understand it.

SPEAKER_02 1:16:50

So so so in it's it's it was like a demographic.

SPEAKER_05 1:16:55

It was like a census, pretty much.

SPEAKER_02 1:16:57

Yeah, went to different villages, they recorded deaths that happened from mainly natural causes. And then they say, because there is it's it's a document 2007 report. You can read it. The methodology is there. And serious scholars have criticized that report. Even the mapping, the UN mapping report criticizes the methodology that was used in that report. But you will hear a head of state talk about the the conflict causing millions of deaths in DRC.

SPEAKER_05 1:17:41

So again, goes back to my question. If, because what you're it seems that you're telling me is that some of these figures are fiction that cannot be proven and could be even just lies. Why has there never been a lawful or a legal attempt to interrogate these things? And even is it because there's never been a tribunal? Is there no one that we that can Rwanda not sue anyone? Because it seems like what we'd call defamation. No, right? But then I know it's the wrong legal term, but it seems defatory.

SPEAKER_02 1:18:35

No, uh, one, it depends on how those figures are used, but the report does not say those deaths are attributable to Rwanda. But I'm simply saying that the uh some information that are presented as credible have uh have questionable methodologies, which makes actually the the work of the court to be more complicated. Because one, there is there is going to be a need of the of the court to establish that it, well, the parties will have to prove that those conducts occurred. Second, they will have to prove that if those conducts occurred, because the the submission is it is either Rwanda or Rwanda through armed groups, then you would want to know whether the conducts of those armed groups can be attributable to Rwanda. But more importantly maybe what to clarify. Since I told you that the Rwanda the the uh the the basis for the jurisdiction of the court starts in, I think it is December 2008, that the DRC is saying that it was withdrawn in the in these international agreements that they are basing on cannot produce retractive effects. So can't a state agree to allow it to be retroactive? It would be strange how do because the the then that would be like you you you you you subjecting it's a principle of international law that laws cannot be retroactive. They led because you you legit rate a conduct before it happens. You don't rejureate a conduct that has and and the and the international court of justice should be at least the if all other courts did not, at least the international court of justice should be the only one to respect the principle of non-retroactivity of law. I guess what I'm saying is, so I wonder what would be a better outcome.

SPEAKER_05 1:21:02

And uh and this is maybe a question for you. What would be a better outcome? Whether that the court finds that again it has no jurisdiction based off of pretty much the the the older arguments, or it does have jurisdiction, and then for the first time, all these allegations can be properly argued. What would be a better, in your opinion, better legal outcome for Rwanda?

SPEAKER_02 1:21:34

Not for Rwanda. Let us say for the interest of justice. For Rwanda. For the interest of justice, I think, because that is what DRC has submitted, I think Rwanda can make counterclaims that would do either counterclaims or independent claims about the arrogations or the responsibility of DRC about what is happening in Eastern DRC, including the targeting of the Tuts communities in the Eastern DRC under the same convention, the convention of genocide, discrimination. Because that would be able to put everything on table for discussion. But as as I said, if the court finds that it has jurisdiction, I think, and uh and and and I and and I would be very surprised. If it does. If if if if it does otherwise, I think the jurisdiction would start from 2008. Because that's when the the state reservations were rifted. Because it cannot contradict a decision that is binding between the two states, which was made in 2006 when it said that it has no jurisdiction to hear these matters.

SPEAKER_05 1:23:13

I guess this is going to be pretty much the close to the last question. Again, just so I can be clear. And and of justice if indeed this latest attempt by the DRC to seize the International Court of Justice went through. Because, and I'm I'm asking you because like for me as a quote-unquote civilian, I'm just a party, I'm just seeing things. I I'm tired of this narrative that that that keeps coming up. You know, it's it's uh it goes it goes to a point, almost a point of you know, having this double genocide theory, you know, that it yes, there was a genocide, because that's the Congolese actually acknowledge in that document that you know there was a genocide against the Tutsi in Rwanda in 1994. And then they say, however, they also, the government of Rwanda conducted itself in this way. Now, I would argue as a layman that let's put all the cards on the table.

SPEAKER_02 1:24:36

Let's argue this out. International law is interpreted in good faith. And uh and the and the the the conduct of states is observed from whether they don't have intention to to to uh to to undermine the rights of other states. Uh it is it is also a principle of law that when you seek justice, at least your hands should be clean. So for all the conduct that you we've talked about and the responsibility that could be attributable to the DRC, and you start with Zaire when it was still Zaire at that time. To simply because it is not only about the court hearing the case, it is also the cost it imposes on estate. As I told you, this case, if it was to be had, if it is going to be had, it cannot take less than 10 years. Again, just look at how long it took for the court to come to a conclusion that it has no jurisdiction. Took about four years. Five years. The case was filed in 2001, it was decided in 2006, just to determine that it has jurisdiction. So it is going to take the same or much longer period of time to determine whether it has jurisdiction or not. And after that, then the states in the dispute will start submitting their positions on the merit of what is being alleged, it would take more than 10 years. Those are national resources that are being wasted on simply because someone felt like I want to submit a case. But that if if if it was uh even if we don't look at it from that angle and say, as you're saying, let us let's put the cards on the table. Let us let us have the truth. But there are different other forums. Countries have organized national reconciliation missions, inquiries, DRC within its own jurisdiction, can have a commission on truth and reconciliation or simple truth finding to be able to understand, genuinely understand what happened. It doesn't need to, because we are talking about a conflict that has involved over two hundred non state actors, armed groups. different different countries mercenaries mercenaries and you pick one country of course you can talk of uganda which was uh also taken to the international court of justice but you you you say i'm going to pick and choose actually you are using the interest is not to understand the truth i would say the interest is not to achieve justice in my view all this is part of should i say to gain sympathy of if if we keep this conversation different you know when someone takes an allegation into a court you you automatically are seen as a victim otherwise you would be crazy why would you go to a court so even if the case in this whole process even if the case at the end says ah you're not you know you're not you you you you you you're not a victim by these past 10 something years will have been through media that you are you are a victim this is not to say that horrible things have not happened in eastern DRC or in the DRC generally but situations of armed conflicts that's why the laws of fighting do not prohibit violence they are not concerned about the violence they are only talking about the proportionality of the violence whether the violence that is happening is contributing to you achieving a military objective that you want to achieve then when it is excessive then that becomes a violation so there you would say okay now is the court because the the the test is going to be so high the then you ask yourself is the DRC going to be able to prove because again the I'm sorry the mapping report one it alleges things that are far out of the possible jurisdiction that can be found for the court to have but even if that was not the case with all these different actors that have been involved different is is is this something that is going to be easily resolved by the International Court of Justice other than simply I don't know it's it's really it's really a mess. It's really a mess but there could be different ways because not all justice cannot only be obtained through courts that's why we have different mechanisms including political and diplomatic but obviously they've not chosen that way despite all the other mechanisms. Yes and and I think uh we are going to wait long enough to know the end result of of this maybe uh something I you should have clarified when you said uh in in part of our conversation was to say if if if you are to represent DRC in a in a criminal case something like that.

SPEAKER_05 1:31:45

Yes and if if you were part of the the plaintiffs yeah so to say to to say that International Court of Justice listens to hear or resolve the disputes that are between states.

SPEAKER_02 1:32:03

Criminal law deals with individual responsibilities. So in this case I I just wanted that the the audience does not think that we were we were we confuse the criminal processes with what the international court does the international court of justice focuses on disputes between states in matters that are contentious. It could be based on facts that are presumed to have caused the a breach of an international obligation or a violation of a treaty which a state is expected to talk.

SPEAKER_05 1:32:46

And I want this to be the last question and I wanted to I want you to answer it as as concisely as possible. It almost seems to me like with the world that we're living in you're you're having terrorist organizations not respecting borders they don't have capitals they they they live and work outside the rules of the civilized world now with that reality does it even still make sense to have international law to to still put ourselves as states into these organizations that were created in 1945 today in 1945 there was it was the end of the Second World War people thought that you know what now that we've had the great war life is we've seen what can be let's we're not going to fight like the way we fought what's the point we're seeing war is no longer it seems to me it's we're having less and less state against state now it's proxies or what we call proxies terrorist organizations.

SPEAKER_02 1:34:21

They're not signatories to any of these international documents what's what's the point of of some of these things are they relevant that's a whole new other class and so so so concise it's going to be difficult to keep it concise international law is created by states primarily it's created by states but by the the affiliation of these non-state actors they are bound by the obligation states have made let's keep it non-legalistic so okay to say is international law still relevant relevant I would say yes what makes you think it is not relevant is that you're looking at international law from one angle because the the fact that you are able to to hold your passport and travel from Rwanda to Uganda or to Kenya is part of international law. The fact that you can buy something from one country to another is part of international law. So international law is not about is not only about the fighting and what is not being respected during the situation of armed conflicts but if even that was not the case that there are these other areas of international law which are very important for the for the survival of international community it also provides a basis on which we have a conversation to say this is outrageously unacceptable we think this is the right way to do things. So it still holds that normative importance in how we see we see the world it's our Bible it's our constitution it's our yes it at least yeah it at least gives us it shows us some of the aspirations especially given the fact that this international law having being a product of the state's consent what states have consented to be bound by it at least gives a general understanding of what is expected of states. And when a state conducts itself otherwise then we can say even if we are unable if even if we don't have enforcement mechanisms because that is one of the uh of the greatest weaknesses of the international law is that the the the the the the the enforcement mechanisms uh of international law is uh is weak but you are at least able to say this conduct is is not acceptable this conduct is not acceptable that is wise words from a wise man Dr. Mulefo thank you so much for joining me on the long form thank you for having me I hope you enjoyed yourself and I wish you well as you are you heading back to to Huye today uh no I think I will be going tomorrow yeah yeah no it's my it's my old university so I I I miss it maybe you'd send me an invitation one of these days and I can come with my camera crew and sure showcase it and maybe even talk to other professors about that's one of the things that I think we've not done a good job of which is actually showcasing what we do in terms of research what we do in terms of of uh study we need to have more African voices it can't always be a white man from the University of of Oxford even if I would have a caveat there because it's much more about the the content of what you say than who you are as a person because we have seen because the most of the education that we inherited in Africa is Eurocentric. You would find someone who speaks best about Western values or European values more than an European or a white person. So it is much more about the way you allow yourself to think and not be influenced by by biases which most of most of it has been channeled through education that we've got because international law again international law is is understood from a Eurocentric because that's that's the the history of it.

SPEAKER_05 1:39:35

Yeah doctor thank you so much for joining me thank you thank you BK Arena for providing a venue for the long form podcast to record BK Arena is Ronda's leading multipurpose venue and the go-to destination in Kigali for world class events. Known for hosting international concerts major sporting events high-level conferences and large scale productions BK Arena offers premium event venue alongside modern conference and meeting rooms designed to global standards. From corporate gatherings to cultural and entertainment moments BK Arena is where Kigali hosts its biggest experiences. Keep up with them at BK Arena on socials and visit their website bkarena.rw This podcast is brought to you by LF Media, home of great African podcasts