Gazing in the Congo (DRC): the dark heart of Africa (2006-2017)

[jmm99]

The questions raised by Oswald still seem to be open; see Ashley Deeks, How Does the UN Define “Direct Participation in Hostilities”? (October 21, 2013):

One theme of Ben Emmerson’s interim report on remotely piloted aircraft and targeted killings is that governments must be more transparent with regard to any civilian deaths they cause. It’s easy to find lots of other calls for greater transparency on related issues. For instance, many have urged the United States to be more transparent with regard to who the United States believes it can target as a matter of international law, where geographically it believes it may use lethal force, which forces count as “associated forces” for purposes of the Authorization for the Use of Military Force, and so on.
...
In March 2013, the Security Council authorized a “Force Intervention Brigade” (FIB) as a military unit within MONUSCO, the UN stabilization mission in the Democratic Republic of Congo. The FIB was established to perform (and continues to undertake) offensive actions against rebel groups that were fighting the Congolese army, including the M23 group.
...
(One difference between the FIB and a future offensive force in Somalia is that the FIB falls squarely within a UN-led mission, while AMISOM in Somalia is AU-led, though the UN provides it with logistical support.)
...
... First, there are targeting questions. In the Congolese context, how does the FIB decide when some set of actors becomes a rebel group covered by the Resolution? (The Resolution authorizes force against “all armed groups” without providing any additional guidance.) How does the UN (or the troop-contributing countries) interpret the concept of “direct participation in hostilities”? Who count as “members” of organized armed groups? Which members perform “continuous combat functions”? By what metric do the UN forces contemplate and calculate permissible levels of civilian deaths when conducting proportionality analyses?

Second, there are likely to be detention questions. ...
...
What if the person detained poses a security threat to the UN forces but it is not clear that his action is criminal under Congolese law? On the flip side, what if the FIB worried that the DRC would mistreat a particular detainee if it transferred him to Congolese forces? Must it nevertheless surrender custody to the host government? Must the UN forces take into account Congolese law, and how do they educate themselves about that law? How has this all played out in practice? How might it play out in the Somalia context?

In a useful ASIL Insight, Professor Bruce Oswald wrote:

As a starting point, it is reasonable to assume that the [FIB] will apply the UN “Interim Standard Operating Procedures: Detention in United Nations Peace Operations” when dealing with detainees. As these Procedures are over two years old, they may be updated to reflect more recent detention principles and guidelines such as found in the “Copenhagen Process: Principles and Guidelines concerning detention in non-international armed conflict and peace operations.” Furthermore, it is also reasonable to assume that, consistent with the UN’s past practice, the Brigade will transfer the armed group members that they have captured to the DRC authorities.

As far as I know, the Interim SOPs are not publicly available. If they are, I would welcome a link to them. A UN publication reported that the Interim SOPs were to be reviewed after 12 months and finalized, but that seems not to have happened.

Based on second-hand reporting, the SOPs apparently do not contemplate non-criminal detention by UN forces for more than 72 hours, except in rare circumstances. One can easily imagine cases in which that rule would prove problematic for the self-protection of FIB forces.

If the UN is consistent with the policies it "recommends" for others (mostly invoked in criticism of the US "war paradigm"), one would predict that the UN would follow its own guidance, as in Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (by Ben Emmerson, 18 Sep 2013), which calls for "strict compliance" with IHL; and adopts the ICRC "direct participation" standard:

Differences of view about the forms of activity that amount to direct participation in hostilities under international humanitarian law will almost inevitably result in different assessments of civilian casualty levels. The Special Rapporteur adopts herein the interpretative guidance on direct participation in hostilities promulgated by the International Committee of the Red Cross (ICRC) in Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Geneva, ICRC, 2009); see paras. 69-72.

Melzer's "Interpretive Guidance" adopted the most restrictive test for "combatants" (and, conversely, the most expansive test for "civilians"). The 2009 ICRC's "Interpretive Guidance" was and still is controversial; e.g., as per these snips from pp. 65, 67:

Measures preparatory to the execution of a specific act of direct participation in hostilities, as well as the deployment to and the return from the location of its execution, constitute an integral part of that act.
...
A deployment amounting to direct participation in hostilities begins only once the deploying individual undertakes a physical displacement with a view to carrying out a specific operation. The return from the execution of a specific hostile act ends once the individual in question has physically separated from the operation, for example by laying down, storing or hiding the weapons or other equipment used and resuming activities distinct from that operation.

The ICRC wholeheartedly endorses the concept of the "transitory guerrilla" (aka "freedom fighter"), which has morphed the Laws of War since the 1977 APs to the GCs.

The second major point made by Ben Emmerson is this:

24. The Special Rapporteur does not use the expression “targeted killing” herein because its meaning and significance differ according to the legal regime applicable in specific factual circumstances. In a situation qualifying as an armed conflict, the adoption of a pre-identified list of individual military targets is not unlawful; if based upon reliable intelligence it is a paradigm application of the principle of distinction. Conversely, outside situations of armed conflict, international human rights law prohibits almost any counter-terrorism operation that has the infliction of deadly force as its sole or main purpose (A/HRC/14/24/Add.6, paras. 28 and 32-33). The threshold question therefore is not whether a killing is targeted, but whether it takes place within or outside a situation of armed conflict (see paras. 62-68 below).

Here, there is added UN guidance in Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, with Addendum: Study on targeted killings (A/HRC/14/24/Add.6):

Summary

In recent years, a few States have adopted policies that permit the use of targeted killings, including in the territories of other States. Such policies are often justified as a necessary and legitimate response to “terrorism” and “asymmetric warfare”, but have had the very problematic effect of blurring and expanding the boundaries of the applicable legal frameworks. This report describes the new targeted killing policies and addresses the main legal issues that have arisen.
...
28. Whether or not a specific targeted killing is legal depends on the context in which it is conducted: whether in armed conflict, outside armed conflict, or in relation to the interstate use of force. The basic legal rules applicable to targeted killings in each of these contexts are laid out briefly below.

Drawing "a line" between what is and what is not an "armed conflict" (aka "war") has its restrictive proponents and its expansive proponents. The logic tends to be a priori - which some admit, and others do not.

Finally, these recent NGO reports follow the Alston-Emmerson construct based on Melzer's "direct participation" argument: Amnesty International’s “Will I Be Next?” - US Drone Strikes in Pakistan; investigates nine drone strikes in North Waziristan between January 2012 and August 2013; and Human Rights Watch’s “Between a Drone and Al Qaeda” - The Civilian Cost of US Targeted Killings in Yemen; examines six drone strikes in Yemen, one from 2009 and the remaining five from 2012 and 2013.

So, what policy will the UN adopt for its FIB ? What ROEs will that force likely follow in the real operational world ?

Regards

Mike

[M-A Lagrange]

Hello Mike,

All the questions you raise were raised when it came to set that FIB. But the main question was: how would Russia and China react and would that mean a new approach for Syria... (new is beautiful cause it is what we need but also scary...;-))

Basically, the FIB already has been engaged against one armed group: the M23.
They were in support to the FARDC and brought professional planing, operations and modern warfare to the Kivu. The results were not long to come: the FARDC and FIB just kicked M23 over 20 km away from Goma.
The question of legal ground has not really been an issue as ToE and RoE already existed. What was new with that FIB is the ToE. What has been lacking in DRC since ages is a will from peacekeepers to actually do the job. The FIB component came with the straight intention to use lethal force to impose the UNSC decisions to armed non state actors.

The Force commander gave a pretty raw but effective definition of civilian when he arrived and set the green zone in and around Goma: all those who carry weapons (AK, RPG...) are not civilians. Civilians do not carry weapons.

Est de la RDC : Tout civil portant une arme sera assimil un combattant, selon la Monusco
http://www.digitalcongo.net/article/93352
(All civilian carrying a weapon will be assimilated to a combatant. In French unfortunately)

He basically said: if you are not a police or military staff then you are not allowed to carry weapons in the area I control. Which is the basic of the Congolese law and makes the distingo between combatants and civilians quite easy.

That said, the FIB is a political tool in the first place. Its purpose is to reverse the military dynamic to allow a political dialog to take place. So far, they have been good at fighting but political dialog is stuck in the sand and goes nowhere. So military solution prevail for the moment.

Talks suspended after M23, DRC disagree
http://www.sudantribune.com/spip.php?article48515

Now the questions are: will M23 external supporters take the risk to get at war with the UN? And what will happen if UN are defeated?

[jmm99]

sera assimil un combatant" is clear enough for that moment in time; except for one argument that has been thrown at the US re: its actions in Iraq, Astan, Pakistan, Yemen and Somalia - and probably elsewhere.

That argument very simply is that carrying firearms in those countries is not at all uncommon among civilians. Therefore, carrying firearms is not sufficient (in and of itself) to make positive ID of combatants. In fact, the US has been consistently criticized by the UN-ICRC, as to its matrices for signature strikes, for too heavily relying on two factors, military age males + carrying firearms, as proving positive ID of combatants.

Even where carrying firearms is made absolutely illegal (except for soldiers and police), that makes gun-carrying civilians criminals, not combatants. As criminals, those gun-carrying civilians are under the protection of Article 6(1) of the ICCPR, which the UN certainly has to admit is a binding international treaty, stating that “every human being has the inherent right to life. No one shall be arbitrarily deprived of his life.” In the US, that rule is known to every cop as Tennessee v Garner, which restricts the instances in which even a gun-carrying civilian felon may be shot.

General Cruz' statement in Digital Congo doesn't evidence what other UN-ICRC rules he is not following by omission, or what rules he is even breaking by commission. I see no evidence in the statement that Cruz has taken Nels Melzer's "direct participation in hostilities" as the rule governing FIB's offensive targeting operations.

If, pursuant to General Cruz's apparent ROE, gun-carrying civilians are actually being shot as "combatants", at least some of those killings would most likely constitute, under the consistent UN-ICRC proclamations that have filled the past decade, either extrajudicial executions or war crimes.

No doubt that General Cruz is faced with a difficult situation; that recourse to more "direct action" is often effective; and that pragmatism may justify the COA elected. Last nite, I watched La Bataille d'Alger; effective methods (in the short run, of course).

My own "feeling" is that, if FIB actually engages in "effective offensive targeting", it will end up actually employing as harsh or harsher ROEs than the US has employed since 9/11; but that the US will remain the UN-ICRC whipping post.

Regards

Mike

[Stan]

Mike,
The only thing I could add to this is that the vast majority of civilians in the DRC do not actually possess firearms (at least not this past April).

With some very limited examples such as politicians and military family members, you would be hard pressed to find a common civilian with a firearm (and the ability to employ said).

Regards, Stan

[carl]

The FIB rules of engagement as stated remind me of what Tom Odom advised the US to use as rules of engagement when we first went to Somalia long ago. If I remember what I read correctly, he advised this-Anybody who is carrying a weapon is to be shot and if anybody picks up that weapon, he is to be shot too.

TIA.

[jmm99]

Because of Marc-Andre having long ago provided me with the links to the UN reports on gun-control and gun ownership in Central Africa (esp. Rwanda, which has its own set of lengthy and dreary reports), I'm aware of the classism inherent in Central African gun ownership. So, as I said, there is a certain pragmatism in General Cruz' approach; which, from a utilitarian approach justifies the "raw" rule of thumb - gun in hand = combatant.

I suspect, however, that this rule does not apply across the board; and that we really have three categories of gun toters:

1. The "good" politicians and their military family members who are not going to be shot because of their status as gun toters.

2. The "bad" politicians and their military family members who might be shot because of their gun toter status, but more likely would be "neutralized" by capture - we don't want the UN FIB to be killing African elites, do we ?

3. The common rabble, who aren't supposed to have guns anyway; and will be shot if they are gun toters.

Now, all of this makes practical sense in context. But, it is a far cry from the rules propounded by Messrs Ban, Emmerson, Alston and Melzer; and endorsed by Amnesty International, Human Rights Watch - and all of the other critics of the US over the past decade.

Regards

Mike

[M-A Lagrange]

Hello every body, Mike, Stan, Carl

What stan pointed is very true in DRC: average people do not possess firearms and even less know how to use it. In addition, combats are mainly armed guys against against unarmed civilians.

It is also clear that General Cruz statement is not based on legal grounds but on practical considerations. It was also and first of all a political statement to win the Congolese hearts and minds to the cause of the FIB.

In addition, the FIB is mainly composed of SANDF and Tanzanian forces which are quite well trained. M23 is composed, allegedly, of former FARDC/CNDP/PARECO and RDF, and RDF are well trained.
Nothing comparable to Astan or Irak or even Somalia.

But the point you raise is right on the spot of the arguments used by troops contributing countries to not engage their soldiers in combat, in addition to the usual political argument: we are here for vacation not for war, it is a foreign country issue we cannot afford to have even 1 casualty. Something that changed with the FIB as at least 2 Tanzanian soldiers died during combats with M23.

What is also a concern for the FIB is the basic M23 combatants who are for most of them forced combatants recruited on a false promise of a job in DRC or kidnapped children. During the last combats, FARDC and FIB fired more than 1000 round of artillery on M23 positions and approximately 300 M23 combatants were killed (Some say up to 450).
M23 officers are trained, they prepare defenses, foxholes, protected artillery positions... But average combatants have at best 2 weeks of training and barely know how to load their gun.

Against the other armed groups (which are more than 200 on DRC soil according to my last mapping 3 years ago and they keep on proliferating) the situation might be different. So on a legal ground, M23 is a soft target as they wear uniform, have an identified chain of command and carry weapons. With other groups it will be more blurred as their is no real chain of command, no uniform and not necessarily more than 3 AK for 10 "combatants".

General Cruz combat experience is mainly Haiti and the Cite Soleil gangs. So for the moment he does what he knows: anti gang. When it will come to disarm by force local ethnic militias it will be another story but Congolese legal system is exotic enough to allow almost anything.

[jmm99]

My quick search didn't turn up Tom's "ROE for Somalian pirates"; I'd be very interested in exactly what he said if someone can find it.

However, I did find Tom's post from this thread in 2007 (#101), which bears on the subject:

Well they [the DRC Army] always made our job easier when it came to predicting what they would do:

Unarmed civilians as opposition: attack, rape, steal, kill

Armed opposition: remove mirror shades, look real mean, put shades back on, then run

Looks to me, from that comment, that a good argument can be made that a lot more armed common rabble, of the right character and attitude, would be a positive thing.

But, that is neither African elite nor UN-think; the common rabble must be unarmed - sound familiar ?

Regards

Mike

[jmm99]

I'm sure that the "Congolese legal system is exotic enough to allow almost anything." I could also say that the US legal system is exotic enough to allow almost everything that Presidents Bush and Obama ordered since 9/11. Whether those orders were wise policies is another issue.

Personally, I've less objection than most to reliance on domestic law (including its Laws of War) over what passes for international law today. IHL and IHRL are anachronistic because they are based on a less complex context (a clear division between Peace and War; e.g., Lasse Oppenheim) than present-day reality (War in Peacetime; e.g., Andre Beaufre); and incorporate some of the worst Cold War innovations (e.g., "freedom fighters"). So, if the whole edifice is to scuppered, so be it.

But, that is certainly not the position taken by the UN-ICRC and the "international legal community", and generally supported by the international political elite; especially, where opportunity exists to bash the US. Of course, the UN is much more "flexible" when it comes to itself - it doesn't have to practice what it otherwise preaches.

Regards

Mike

[carl]

My quick search didn't turn up Tom's "ROE for Somalian pirates"; I'd be very interested in exactly what he said if someone can find it.

However, I did find Tom's post from this thread in 2007 (#101), which bears on the subject:



Looks to me, from that comment, that a good argument can be made that a lot more armed common rabble, of the right character and attitude, would be a positive thing.

But, that is neither African elite nor UN-think; the common rabble must be unarmed - sound familiar ?

Regards

Mike

I think that comes from his book, Journey Into Darkness, I think. It had to do with our original effort in Somalia. The main point is if you are trying to restore some semblance of order in that part of the world by suppressing organized (sort of) armed groups, you don't fool around. You tell them they will die if they don't comply and then back it up.

Right on, arm the common rabble. But in the glorious DRC, the common rabble is pretty darn poor and a rifle, ammunition and things to keep it going aren't so cheap. You get a few guys together who can work a scam to pay for weapons or get somebody else to pay then, those guys have a huge advantage over the common rabble. So in this case, Tom's rules may be good.

Stan would know better than I if the right character and attitude is common in the DRC.

[carl]

What has been lacking in DRC since ages is a will from peacekeepers to actually do the job. The FIB component came with the straight intention to use lethal force to impose the UNSC decisions to armed non state actors.

That is the interesting question. What was it that motivated the UN to make the decision actually really and truly use lethal in a serious way? For years and years they mostly hung around and occasionally got shot up. Why did they change their minds?

M-A or Stan or anybody, if you've heard any scuttlebutt about why it would be interesting to know.

[Stan]

Carl,
Actually, although use of lethal force is very new to blue helmets, their mandate and a UN-brokered accord supported by 11 nations and 4 international organizations were key.

[davidbfpo]

Carl & Stan,

What is remarkable is that the UN has again used force in the Congo, as it did in the sixties (1960-64); when their enemies were a mix of Congo military, mercenaries, separatists - notably in Katanga - and others:http://en.wikipedia.org/wiki/United_...n_in_the_Congo

[M-A Lagrange]

As Stan said, it is the 11+4 peace framework signed in Addis Abeba that facilitated the involvement of FIB.
But what Stan forgot is the nomination of a UN Special envoy for the Great Lakes + a US Special Envoy for the Great lakes, and the fact that Addis Abeba framework was signed with US, EU, Belgium and France as witness.

In addition, this has sparked a very interresting reorganisation of power in Central and Southern Africa between EAC and SADC.

I put here the link on an interesting article on the M23 ideology:

M23's Congo Cadres: The Rebel Movement with a Taste for Local Politics

During the leadership portion of the training, examples of an eclectic mix of revolutionary heroes are taught. This includes figures ranging from Nelson Mandela to Abraham Lincoln to Che Guevara. (Che Guevara once fought in South Kivu for Laurent Kabila, the late father of the DRC’s current President Joseph Kabila, but this detail is apparently overlooked.)

Training also includes some religious elements, in particular an extensive course on ‘Christian leadership’. “Though M23 is a secular group, we hold up the example of Jesus as a model of leadership and service to a revolutionary cause,” explains one M23 cadre. The head of M23’s armed wing, General Sultani Makenga, is an avowed Seventh Day Adventist and the group’s former leader, Jean-Marie Runiga, styled himself as a bishop.

However, examples from other faith traditions are also drawn upon. Mahatma Gandhi’s Seven Blunders of the World is taught to all cadres, and the example of Gandhi has clearly rubbed off on some M23 members. Political chief Bisimwa currently uses an image of Ghandi on his Twitter profile.

Chris Shambala, a member of M23’s public works department, recalls his experience in the leadership courses. “My favourite figure they told us about in the trainings was Abraham Lincoln,” he says. “That man was a prophet. His vision of America was fulfilled when Obama became president. Like Lincoln, we know that sometimes to fix wrongs in your country, you need a civil war.

http://thinkafricapress.com/drc/m23-...key-grip-power

At the momment US and Eu are calling for a quick peace agreement in Kampala but I really doubt it will ever happen.

DR Congo army in 'last phase' push against M23 rebels after seizing guerrilla stronghold

A source in the UN mission in DR Congo (MONUSCO), which is helping the army, said the offensive against the M23 was in ‘the last phase’, after the army captured the main rebel base at Bunagana on Wednesday.

Diehard M23 fighters, estimated at just a few hundred men, were dug in on three hills in farming territory about 50 miles north of Goma, the capital of strife-torn North Kivu province

.
http://www.dailymail.co.uk/news/arti...#ixzz2jOvQDez1

You need to be 2 to negotiate. And at least 1 is not really willing to talk.

[CrowBat]

Negotiations with M23, sigh...

What's the point of negotiating with supposed M23 leaders, when the body actually controlling them is the Rwandan reg....ho-hum, 'government'?

http://turtlebay.foreignpolicy.com/p...ngolese_mutiny

...and when they are supported by (US-trained) Rwandan special forces?
http://allafrica.com/stories/201209050850.html

One can only hope that Kigali was speaking truth at least that one time, when it announced these special forces were back inside Rwanda, last year:
http://allafrica.com/stories/201209031017.html

- Back in period 1998-2003 (and after), such announcements/promises were not worth the paper on which they were issued...

Even if, the 'core' of the M23 was initially of Rwandan origin too (of course, Kigali would say the people in question are all 'Congolese Tutsi/Banyamulenge', 'fighting against genocidary government and for their right to exist'), and I doubt this has changed very much ever since:
http://www.theguardian.com/world/201...ongo-rebels-un