Paras Shah: Since Russia’s invasion of Ukraine, diplomats, lawyers, and advocates from around the world have pushed for ways to hold Vladimir Putin and other senior leaders accountable. Those efforts include creating a court to prosecute the international crime of aggression – the illegal use of force by one country against another.
But 3,000 miles south of the Russia-Ukraine border, another potential act of aggression has received far less attention. Over the past year and a half, Rwandan troops have conducted military operations in the Democratic Republic of Congo and engaged in direct combat with the Congolese military and armed groups. According to a recent United Nations expert report, Rwandan troops have actively supported the March 23 Movement, M23, a Congolese armed group with longstanding ties to the Rwandan government.
Accountability matters, because acts of aggression can lead to other grave crimes, including war crimes and crimes against humanity. Punishing the crime of aggression is also essential to protecting the sovereign rights and territorial integrity of all States, no matter their size or military strength.
This is the Just Security Podcast. I’m your host, Paras Shah.
Joining the show to discuss the situation in the DRC, the arguments that Rwanda is committing acts of aggression against the Congo, and Rwanda’s likely responses is Daniel Levine-Spound.
Daniel is a human rights lawyer and researcher. He is currently a Fellow at the Harvard Law School Program on International Law and Armed Conflict. Daniel was previously a U.N. Peacekeeping Researcher covering the DRC and South Sudan at the Center for Civilians in Conflict (CIVIC) and was based in Goma, DRC.
Hey Daniel, welcome back to the show. Thanks so much for joining us.
Daniel Levine-Spound: Great to be here. Thanks so much for having me.
Paras: We are talking about the conflict between Rwanda and the Democratic Republic of the Congo and a number of armed groups that are operating in the Congo. So for listeners who aren't familiar with this conflict, can you give us an overview of what's been happening in Congo over the last few years?
Daniel: So the fighting between the Congolese government and the M23 armed group really began in the fall of 2021, when the group began attacking Congolese military positions in North Kivu province in northeastern DRC. When we heard about the reemergence of M23, no one was sure what this would mean, but over the coming months, it quickly became clear that the group was intent on expanding its territory. So from the fall of 2021, to now, in 2023, we've seen the group vastly expand the territory under its control. It's taken over key towns like Rutshuru and Bunagana. It set up its own administration in areas that it's taken over, and it's proven capable of defeating the Congolese military, as well as other armed groups in battle after battle.
There have been a number of initiatives to stop the M23’s progress. There have been many FARDC offenses, most of them unsuccessful. Generally, the M23 has repelled Congolese military offensives and actually gained more territory and counter offensives. We've also seen diplomatic initiatives. And then we've seen the deployment of the East African Community regional force, so a regional coalition military force deployed into eastern DRC.
But none of these initiatives have resulted in a meaningful withdrawal of M23. We have seen the group cede control to the East African Community regional force in a few instances, they've handed over a few towns — but they haven't ever disappeared from the area. They've always continued operating in areas where they've theoretically withdrawn, and as they've withdrawn from some towns, they've often expanded in the other direction. So the M23 is not moving to take over the city of Goma, but it's been moving west. So in the opposite direction.
So essentially, we're dealing with an intractable conflict in which we have no evidence that M23 plans to withdraw and the group's stated reasons for fighting continue to change. Sometimes they'll speak about the Congolese government's failure to abide by agreements that are more than a decade old. At other points, they are speaking about discrimination against members of the Congolese Tutsi community. We've heard them speak about reform of the Congolese military. So the justifications are always changing. We don't know what the rationale really is.
In responding to M23, the Congolese military has, unfortunately, partnered with a number of armed groups, including FDLR. And this is another devastating impact of the conflict, and that has resulted in the Congolese military partnering with and empowering abusive actors. Perhaps the last thing to say, although it's perhaps the most important, is that this conflict has been really devastating, sincerely devastating for Congolese civilians. We've seen over a million Congolese civilians displaced, many of them are in IDP camps, in internally displaced persons camps, with essentially no or extremely limited humanitarian services. We're seeing widespread sexual violence, waterborne diseases, and in the conflict itself, we're seeing serious violations of international law, including M23 fighters extrajudicial killing people, including going from home to home and killing men in their houses. And we're seeing significant sexual violence, mostly women and girls, who've been raped by M23 fighters.
Paras: Daniel, how does Rwanda fit into all of this?
Daniel: Yeah, so Rwanda is a vital piece of this very complicated puzzle. So when M23 emerged ten years ago, it emerged with the support of the Rwandan government. There were very, very clear links, demonstrated links, between the Rwandan government and M23, and indeed, one of the reasons for M23’s eventual collapse is that Rwanda, faced with widespread international pressure, decided to withdraw its support. So those links between Rwanda and M23 are very, very old. And it should also be noted that M23 leadership is largely composed of Congolese Tutsis. So this time again, it's very clear that Rwanda is deeply involved in the M23 offensive.
So since M23 reemerged, there have been accusations by Congolese civil society leaders, human rights activists and others saying, “This isn't just M23. This is Rwanda. This is not just an armed group. This is essentially an invasion from a neighboring country.” Rwanda has vociferously denied these allegations, saying that it's not involved, but one of the things that the most recent Group of Exports reports does is that it lays out, I think, quite compelling evidence for Rwandan involvement. And it really goes beyond logistical support or financial support or training, it cites many examples in which Rwandan defense forces — so the RDF, the Rwandan military — was actually fighting alongside M23. So we have widespread evidence that in the report, you see photographs, and others of M23 fighters, for instance, dressed in Rwandan military uniforms. We know that M23 is fighting with weapons that they've likely gotten from Rwanda. When you speak, for instance, to observers on the ground, they'll tell you that M23 conducts operations much more like a conventional military than like one of the other armed groups. So we have a number of reasons to believe that there's a connection and training.
One of the other things that the report does that I think is really important is it names names. So the report speaks about a number of Rwandan military officials, and even very high level government officials who are, according to the report, deeply involved. The report accuses several Rwandan military officials of planning and operationalizing the M23 offensive, which I think lends credence to the idea that I think, you know, provides more evidence that we're not seeing a sovereign state, the DRC fighting against an armed group M23, we're also seeing a sovereign state, DRC, essentially fighting against its neighbor, Rwanda.
Paras: This heavy involvement from Rwanda with troop support, with financial support, with logistical backing — that seems to tell the story, Daniel, that we actually have a conflict between Rwanda and the DRC that is being fought through using M23 as a vehicle for what could be considered Rwandan aggression. And one of the key ideas behind international law that's emerged since the end of World War Two is this idea that states should not unlawfully use force if it's not in self defense. And that's the idea behind the crime of aggression. So can you give us a bit of background around how the crime of aggression works, and what is the idea there?
Daniel: So the crime of aggression is rooted really in one of the central tenets of international law, the prohibition of a threat or use of force by one state against another. So the prohibition on interstate force or the threat of interstate force, Article 2(4) of the UN Charter, allows for only two exceptions to this prohibition. One is individual or collective self defense, if an armed attack occurs, and the other is authorization by the UN Security Council. So only two exceptions.
And then the ICC’s Rome Statute, the statute of the International Criminal Court, counts aggression among the four crimes over which the court has jurisdiction. This list also includes war crimes, crimes against humanity, and genocide. And the Rome Statute defines both the act of aggression and the crime of aggression. So I won't quote from the statute itself, but the act of aggression essentially describes the illegal use of armed force by one state against the sovereignty, territorial integrity or political independence of another state, okay? And then the crime of aggression focuses on the planning, preparation, initiation or execution of the act of aggression, insofar as the act is a manifest violation of the charter, due to its character, gravity and scale. So the fact that we have an act of aggression doesn't necessarily mean that there is a crime to prosecute, the crime requires an individual involved in planning, preparing, initiation, initiating or executing the act of aggression.
And I should also note that the statute provides a list, though a non-exhaustive list, of examples of acts of aggression. These include the invasion or attack by one state’s armed forces against another state. It also includes attacks by the armed forces of one state against the armed forces of another state.
One thing I want to add regarding the UN Group of Experts report. So we've seen several reports from the UN Group of Experts that speak about Rwandan involvement in eastern DRC. That's something we've seen in a couple of different reports. What's particularly notable about the most recent report that came out in June 2023 is that it names a number of Rwandan officials, including very high level Rwandan officials in Kigali, for their involvement in what's going on in eastern DRC. So that's quite significant, right? Because for a crime of aggression, we're not speaking about states, we're speaking about individuals, individuals who could be prosecuted, and part of what the group of experts have done is they've given us evidence regarding specific individuals involved. So one, one example, for instance, is James Kabarebe, whose name will be familiar to those of you who have been following Rwandan or Congolese history for a long time, who currently serves as the defense and security adviser to President Paul Kagame. Kabarebe is explicitly accused of designing and coordinating the Rwandan Defense Force’s actions in eastern DRC. So this is significant in this report, because it's not, unlike past reports, we're not getting, we're not just getting descriptions of Rwanda and actions. We're getting names of high level Rwandan officials for their involvement in what's going on.
Paras: The crime of aggression hasn't been prosecuted since the end of World War Two in Nazi Germany. But let's assume that some of the facts that we've laid out here, and the connection between Rwanda and M23 are true just for sake of discussion. How would Rwanda respond to that?
Daniel: Yeah, so it's a great question. And I should say, first of all, that Rwanda has, from the beginning, denied supporting M23 and denied deploying Rwandan soldiers into Congo. So I think Rwanda’s initial defense — or something we've seen already — is we're not, you know, there's been no act of aggression. There's been no crime of aggression because we are not involved in what's happening in eastern DRC. But if we are to imagine a scenario in which there was a prosecution for aggression — and again, this is not something we have seen, and the ICC would not have jurisdiction over the crime of aggression in this particular instance — but if we are to imagine, for the sake of argument, that Rwanda was defending its deployment of troops into eastern DRC, or its support to M23, then it would probably rely on self defense.
So one of the ways in which Rwanda might do this is by focusing specifically on the FDLR. So to give a bit of background, after the Rwandan genocide in 1994, military officials and armed group members responsible for the genocide fled into eastern Congo, along with many, many Rwandan refugees, and some of these people created armed groups in eastern DRC with the eventual goal of retaking power in Rwanda. And the most important of these groups is the FDLR. So the FDLR is a group that's been in eastern DRC since the mid 90s, and is, I would say, one of the principal enemies of the Rwandan government. So the current Rwandan government came to power after defeating the genocidal government. The current Rwandan government sees the FDLR as a carrier of the genocide ideology, that even though FDLR is no longer in Rwanda, they're seen by the Rwandan government as somehow carrying the threat of genocide with them.
And there is some truth, I think, or logic to Rwanda’s concern we should acknowledge. Historically, the FDLR has conducted cross border attacks against Rwanda. So the most recent of those was, I believe, in 2019, in the Rwandan town of Kanege, where the FDLR crossed the border and killed eight civilians. So often, when the Rwandan government is asked to speak about what's going on in eastern DRC, they will focus on the Congolese government being unable or unwilling to stop the threat caused by the FDLR and other armed groups. And they'll also speak about the Congolese military’s cooperation with armed groups like FDLR. So one of their main focuses would be, “Actually we are responding in self defense.” They might say, “We're responding in order to protect ourselves from the FDLR.” Or they might say, “We are actually responding to a threat from the FDLR and the Congolese military.” The UN Group of Experts report we were speaking about a few minutes ago also attests to the fact that there is substantial cooperation between FDLR and the Congolese military. So this is not totally false.
Paras: Right, so any analysis of Rwanda’s self defense turns on a lot of different factors, the particular timing of a potential attack or the facts on the ground, and one issue that we've danced around a little bit is the fact that the International Criminal Court wouldn't be able to prosecute this case. So you'd need to create a new mechanism, a new type of court, in order to even consider this potential aggression by Rwanda against the DRC. And that's because when countries were negotiating the Rome Statute for the ICC, back in the 1990s, they didn't define the crime of aggression. They couldn't agree on how it should be operationalized or how it should work. And it's only been recently in the 2010s that the crime of aggression has actually become integrated into the Rome Statute, but countries need to specifically sign on to it and there's a loophole there, which makes it difficult to prosecute. So we would need a new court, Daniel, and we've seen many calls for the creation of a special tribunal to prosecute Russia for its aggression against Ukraine. But what we haven't seen are parallel calls for a court in the case of Rwanda and the Congo, so I'm curious why you think we have that disparity.
Daniel: I think one of the key reasons that there is so much focus on a special court with jurisdiction over the crime of aggression regarding Ukraine and Russia, is that, as you mentioned, the ICC wouldn't be able to prosecute aggression in the Ukraine-Russia context, nor would a Ukrainian domestic court. And what I would stress is that many of the same reasons that we would need a special tribunal in Ukraine and Russia also apply in the Rwanda DRC case. So Rwanda, for instance, is not a party to the Rome Statute. Indeed, President Paul Kagame of Rwanda has been one of the Rome Statute’s most vociferous critics. So the ICC wouldn't have jurisdiction over the crime of aggression based on that compromise that you spoke about. So there's no possibility of an ICC prosecution for Rwandanofficials. And similarly, were a Congolese domestic court to try to prosecute Rwandan officials for the crime of aggression,leaving aside all the logistical and resource challenges, we would run into the same immunities challenges that often we hear in the Russia-Ukraine case.
Paras: The idea behind personal immunities is that heads of state, heads of government and ministers of foreign affairs have immunity, they can't be prosecuted while they hold office. There's an exception for this for prosecutions by what are called fully international courts. So those are international courts, like the ICC, or courts that are fully staffed by international judges, and that have characteristics of courts that are like the ICC, but they wouldn't apply it to domestic courts. And it's a huge barrier, because the crime of aggression is a leadership crime and going after or prosecuting the leaders who planned these acts of aggression is key to accountability. So in this case, if you don't have a fully international court, or if you have a domestic court that's trying to pursue these types of charges, the immunity would be a major challenge.
Daniel: So as in Russia-Ukraine, you would need a separate international tribunal in order to prosecute Rwandan officials for the crime of aggression. And I think you are right to point out this disparity. I think, when it comes to Rwanda-DRC, we get a lot of misinformation and simplification. Often the narrative is, well, there are a bunch of different states and the different states are all supporting armed groups. and it's all very confusing. And I think that that sort of narrative is reductive and not harmful. It's true that in the Great Lakes region, there are multiple governments supporting armed groups.
But if we're going to think critically and think legally, in this specific instance, we have something unique in the region. We have one state which has deployed its troops into the territory of another state and fought against the armed forces of another state. That is different, right? We're not just speaking about Rwandan support to M23. We're speaking about Rwandan troops being directed by Rwandan leadership in Kigali who are fighting on Congolese soil and participating in the takeover of Congolese cities and towns in a conflict that has had disastrous impact on Congolese civilians. So I think the narrative of different states are supporting armed groups is unhelpful because it obfuscates this potentially core violation of international law, the prohibition on the use of interstate force.
I think there's also a fair argument that the world or the international community has grown tired of what's happening in eastern DRC, where there has been on and off conflict for a few decades. There's also a sense that there's quite a lot of sympathy for the Rwandan government, right? Rwanda is not Russia. For many European states, including France and the UK, Rwanda is a really important ally. France has vigorously pursued normalization with Rwanda. That may be in part because Rwanda has deployed troops into Mozambique in an area where there are significant French energy interests. So Rwanda is a sort of darling of the international community. It has a lot of allies in Africa, where it's seen as a strong security provider. It’s a major contributor to different UN peacekeeping missions across the continent. So I think Rwanda is in a strong diplomatic position, and there's not a lot of appetite to put meaningful pressure on Rwanda. You know, as we talked about before, ten years ago, part of the reason M23 collapsed was because of all the economic and political pressure on Rwanda, its benefactor. And we haven't seen that this time. So this time, we've seen states telling Rwanda to stop, we've seen some public statements expressing anger or disappointment, including from the United States, but we haven't seen any major international reaction. And I think Rwanda just isn't really feeling the consequences of what it's been doing in eastern DRC.
Paras: So Daniel, you always started this episode by talking about how, in the wake of World War Two, the international community set up this rules-based international system, this system that is supposed to preserve peace among countries and stop war, and at the bedrock of that is the prohibition on the crime of aggression. And there might be legitimate or illegitimate reasons for the disparities that we're seeing between Russia and Rwanda. But what does that tell us? What does the fact that that disparity exists do to our confidence in this system in this idea of this rules-based international order?
Daniel: In the context of Russia and Ukraine, one of the phrases that we hear often is the importance of a rules-based international order. We often hear about international law and the need to protect international law and defend fundamental international legal principles like sovereignty, or the territorial integrity of states.
And I thought of a recent quote from Dr. Dennis Mukwege, a Congolese doctor, a Nobel Prize winner, who noted that, you know, we could see very clearly that this politics of double standards is undermining the credibility of the international multilateral system. And I think Dr. Mukwege is absolutely right to use the term double standards, and to speak about the fact that it's very hard to take calls for international law, or a rules-based international order seriously, when there is such a minimal reaction to what's happening in eastern DRC.
And I think what's challenging when you look at the Rwanda-DRC context is that we see another instance in which one state has very clearly violated the territorial integrity of another state, and seems, as far as we can tell, two years later, intent potentially on holding on to some of that territory. We basically see no reaction, or very, very, very little reaction, and I think, generally, it raises questions as to how serious states are when they talk about the importance of international law, when they speak about the importance of a rules-based international order. Because if you're committed to those principles, if you're committed to the prohibition on the use of interstate force, if you're committed to the idea that states cannot simply invade one another, then you ought to react seriously when you see Rwandan troops deployed illegally into eastern DRC, and we really haven't seen that.
I want to stress that the situations are different in many ways. I'm not trying to argue that what’s going on in DRC and Rwanda is exactly the same as what's going on in Russia and Ukraine. All contexts are different, and I don't want to fall into a sort of reductive comparison. But part of the reason that we have international crimes is to be able to prosecute different instances of those crimes, right? So one act of aggression is not necessarily going to look like another act of aggression.
When Russia invaded Ukraine, when those initial reports came out, I was actually sitting in a bar in Beni, which is a city in Congo, in northeastern DRC. And I was sitting and watching the news, and there was someone sitting next to me at the bar who was from Beni, and he turned to me and essentially said, “Well, now the world is going to react. It's in Europe, but people are dying here every day. And there's essentially no reaction.” And I really sympathize with that. We're really not seeing much beyond rhetoric. And I think it's pretty clear that for the Rwandan government, there's really no incentive to change their course of action, and Congolese civilians are paying the price of the international community's inaction.
Paras: Daniel, this has been so helpful and you've given such a clear picture of what's happening in the DRC thanks again for joining the show.
Daniel: Thanks so much for having me. It's always a pleasure to be on with you.
Paras: This episode was hosted by me, Paras Shah. It was edited and produced by Tiffany Chang, Michelle Eigenheer, Allison Mollenkamp, and Clara Apt. Our theme song is “The Parade” by Hey Pluto.
Special thanks to Daniel Levine-Spound. You can read all of Just Security’s coverage of the conflict in the eastern DRC, including Daniel’s analysis on potential acts of aggression, on our website. If you enjoyed this episode, please give us a five star rating on Apple Podcasts or wherever you listen.