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

[jmm99]

sounds like a negative thing for at least some rebel groups. Whether that score is material would, I suppose, depend on how many rebel groups there are - a circumstance best known to those on the ground there and not to me.

In any event, the result, due to the use of aimed fires, inspired this piece of doggerel:

Snipers rule;
Air shooters drool.

Fifty years ago, the Congo saw a number of South Africans who could shoot straight - as opposed to popping off AKs into the air. Times have changed - or have they ?

It all seems to boil down to another piece of doggerel - oui, Belloc said it more elegantly, but I like this version:

The Maxim Gun -
Wot we haz got,
And they haz not.

So, Marc-Andre, thank you for keeping us updated on this continuing mess.

Your post contained this quote, which initially struck me odd:

The national secretary of the SA National Defence Union, Pikkie Greeff, confirmed the involvement of snipers: "Our sources in Goma have revealed that at the time of attacks [on M23 supply lines] by UN Ukranian Mi24 attack helicopters, snipers from our Special Forces were engaging the rebels. They have killed a number of rebels, with reports of one being shot from a distance of 2.2km."

This compelled me to find Pikkie (apparently a goto guy for media asking about SADF) - and lo, twitter link:

National Secretary of the South African National Defence Union ( SANDU) the largest military trade union in the SANDF. AS ALLOWED BY THE CONCOURT!

OK, so Pikkie is, in effect, the Super Shop Steward for the SADF; but what the hell is the CONCOURT. I learned that is South Africa's Constitutional Court, which held in its 1999 decision that SADF members had a constitutional right to trade union membership.

Thus, one learns something new every day.

Regards

Mike

[JMA]

Snipers rule;
Air shooters drool.

Fifty years ago, the Congo saw a number of South Africans who could shoot straight - as opposed to popping off AKs into the air. Times have changed - or have they ?

Regards

Mike

Mike, the weapon used was the NTW-20, 14,5mm

See article here (in Afrikaans):

http://www.volksblad.com/nuus/2013-0...n-meer-as-2-km

And search google images for NTW-20

[M-A Lagrange]

While negotiations in Kampala are stuck, despite the call from ICGLR member states to find a solution within the coming 14 days, Rwanda has more and more difficulties to hide its "go to war" agenda. Some might say this is just another show of force demonstration by Kigali regime who faces more and more difficulties domestically.
Let's hope it is so:

Regional powers fear Rwandan invasion of DR Congo

Southern African nations Saturday, September 14, expressed concern at the growing number of Rwandan troops on the border of the Democratic Republic of Congo and said it hoped an invasion was not imminent.

A statement from the Southern African Development Community (SADC) regional body said it was concerned "at the deployment of Rwandan troops along the common border" and "expressed the hope that Rwanda is not contemplating to invade."

Issued from a summit in Namibia attended by Congolese President Joseph Kabila, the statement called on the country's neighbors to "contribute to peace, security and stability of the DRC."

Congolese troops backed by a special United Nations force launched a fresh assault against M23 rebels late last month in DR Congo's north east.

http://www.rappler.com/world/regions...invasion-fears

Rwanda is facing elections this month (September) and the regime has to demonstrates that FDLR threat is still present. So several grenades also blew up in Kigali... The worst of us would even go as far as saying that several in RPF are trying to clear huge populous areas in Kigali to build malls are the ones behind those attacks...
Make up your mind.

Police: 2 Killed in Grenade Attacks in Rwanda
Police spokesman Damas Gatare said Saturday that a grenade exploded Friday night at a busy market place in the Kigali suburb of Kicukiro, killing one person and wounded 14.

Another grenade was detonated on Saturday in the same area, killing one person and wounding eight, he said.

http://abcnews.go.com/International/...wanda-20257150

[M-A Lagrange]

Rwanda held very successful elections as they were quiet. But this does not diminish the fact that despite being peaceful, their might have been massive frauds.
According to journalist in Rwanda, numerous non distributed electors’ cards were kept in the voting posts. Not really a problem according to the Rwanda national election commission which stated that electors came to collect their elector cards the same day as the vote.
Once again, figures are what they are in Rwanda. I let you make your opinion:
Participation: 98.8%
Votes in favor of RPF: 76.22%
3 parties have been able to access the national assembly.
Here 2 links on the Rwanda elections (in French)
http://www.lepoint.fr/monde/rwanda-r...1731987_24.php
http://rnanews.com/politics/7622-le-...s-legislatives

The main result of those elections without any challenge is the liberation of the FARDC soldier arrested by Rwandan policemen in Goma, DRC, the day of the vote. This after he was accused of conducting threatening activities in Rwanda but cleared by the border joint verification mechanism from ICGLR.

In the mean time, negotiations in Kampala are stuck in the sand and it is not the behind doors facilitation by Uganda that will manage to get an agreement between Kinshasa and M23 before the UN general assembly and the signature of the Addis-Ababa peace agreement framework.

[jmm99]

The FIB was authorized by Resolution 2098 (2013); Adopted by the Security Council at its 6943rd meeting, on 28 March 2013 - S.C. Res. 2098, U.N. Doc. S/RES/2013 (28 Mar. 2013). Its most pertinent provisions (besides its basis in Chapter VII "Peace Enforcement", whose first major use was the Korean Police Action of 1950) appear to be in paras 9-12 dealing with the FIB, esp. para 12:

12 ... (a) Protection of civilians

(i) Ensure, within its area of operations, effective protection of civilians under imminent threat of physical violence, including civilians gathered in displaced and refugee camps, humanitarian personnel and human rights defenders, in the context of violence emerging from any of the parties engaged in the conflict, and mitigate the risk to civilians before, during and after any military operation;
...
(b) Neutralizing armed groups through the Intervention Brigade

In support of the authorities of the DRC, on the basis of information collation and analysis, and taking full account of the need to protect civilians and mitigate risk before, during and after any military operation, carry out targeted offensive operations through the Intervention Brigade referred to in paragraph 9 and paragraph 10 above, either unilaterally or jointly with the FARDC, in a robust, highly mobile and versatile manner and in strict compliance with international law, including international humanitarian law and with the human rights due diligence policy on UN-support to non-UN forces (HRDDP), to prevent the expansion of all armed groups, neutralize these groups, and to disarm them in order to contribute to the objective of reducing the threat posed by armed groups on state authority and civilian security in eastern DRC and to make space for stabilization activities; ...

The bolded items delineate some policy issues. First off, how will the UN define "civilians" (which require "effective protection") ? What does "strict compliance" with IHL mean ? What does "neutralize" mean - kill, capture or convert as in the Phoenix Program of Vietnam; or something quite different in the contemplated "targeted offensive operations"?

Within three months of the resolution, a similar set of questions was asked by Bruce 'Ossie' Oswald, The Security Council and the Intervention Brigade: Some Legal Issues (June 6, 2013):

The key provisions concerning the Brigade are found in the operative paragraphs 9, 10 and 12(b) of UNSC resolution 2098. The UNSC mandated the Brigade "to carry out targeted offensive operations . . . with the responsibility of neutralizing armed groups."

The role of the Brigade is also to "prevent the expansion of all armed groups . . . and to disarm them in order to contribute to the objective of reducing the threat posed by armed groups on state authority and civilian security in eastern DRC and to make space for stabilization activities."

Based on the references to the armed groups made elsewhere in the resolution, it is reasonable to assume that the Brigade is mandated to undertake offensive operations against, for example, the M23, the Democratic Liberation Forces for the Liberation of Rwanda, the Lord's Resistance Army, and various Mayi Mayi groups.
...
The UNSC stipulated that the legal framework applicable to the Brigade in carrying out its functions and tasks is international law, including international humanitarian law.
...
Key Legal Issues

The UNSC's innovation in establishing an offensive military force to "neutralize" non-state armed actors in the DRC raises two broad and important legal questions. The first is whether the Brigade, as a matter of law, should legally be considered a party to the conflict in the Congo. The second question concerns the verb "neutralize" and the powers that the Brigade might imply from it.

Oswald is a professor at the Melbourne Law School; and was one of the primary draftsmen of the Copenhagen Process on the Handling of Detainees in International Military Operations (The Copenhagen Process was launched on 11 October 2007 and was concluded in Copenhagen on 19 October 2012).

As to "neutralization", Oswald finds a number of open policy questions:

A further question regarding the establishment of the Brigade is why the UNSC thought it necessary to stipulate that the Brigade is mandated to 'neutralize' the armed groups. Did the UNSC use that word as a term of art to mean that the Brigade should "render [the armed groups] ineffective or unusable"? If yes, did the UNSC intend to distinguish the Brigade's mandate from other operational terms such as "contain," "defeat," "destroy," "disrupt," or "exploit"? If the term is being used in a specific way, what ramifications does that have for the Brigade's functions and tasks? Might "neutralize" mean that targeting or capture of the rebel forces is limited to making the rebels ineffective? Furthermore, it is not clear why the UNSC felt it had to add "neutralize" to the Brigade's mandate when the Brigade, as a subordinate component of MONUSCO, would have the ability to "take all necessary measures" to complete its mandate. Is the Brigade to interpret "take all necessary measures" more narrowly because of the word "neutralize"?

If the term "neutralize" is read broadly, it is reasonable to assume that the Brigade is mandated to target armed groups with lethal force. In line with the usual concept of offensive operations, the Brigade would be able to conduct ambushes, deliberate attacks and hold ground against any armed group. It therefore follows that the Brigade's rules of engagement would be amended to take into account the offensive nature of the operations, and that the international humanitarian law principles of necessity, proportionality, humanity and distinction would be considered accordingly - that is, from a different perspective to how those terms would be applied when self-defense is the justification for the use of force. The rules of engagement presumably would also have to deal with whether the basis for targeting is that a rebel is a member of an organized armed group, or whether he or she is taking an active part in hostilities.

Thus, Oswald and I seem to take a similar broad definition of "neutralize"; however, he would (based on the Copenhagen Process) probably take a more restrictive definition of "combatant", and a more expansive definition of "civilian" than I.

- to be cont. -

[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?