Prosecuting Non-State Armed Groups in the DRC: What Can be Done?

The Democratic Republic of the Congo is facing many domestic challenges. From armed conflict to political instability to a refugee crisis, the situation in the country is bleak. However, the many armed conflicts involving Non-State Armed Groups (NSAG) caused the greatest amount of Human Rights violations. There are many NSAGs operating in the region: The ADF, an Islamist armed group led by Ugandans; the Mai-Mai Yakutumba, comprised of members of the Babeme ethnic group; the Democratic Forces for the Liberation of Rwanda (FDLR); and The Cooperative for Development of the Congo (CODECO), based in the North-East Congo. Most of the actions by these NSAGs take place in North Kivu and Ituri, which are located in the North-East of the country. 

In 2020 alone, armed conflict killed 2,945 civilians, including 553 women and 286 children. Most civilian deaths occurred during individual village raids. From March 2021 to November 2021, NSAGs massacred an estimated 672 civilians during these raids, often while civilians were farming or sleeping. On August 2nd, the ADF killed 16 civilians in the village of Idohu in Ituri.

In response to these atrocities, the DRC instituted martial law in Ituri and North Kivu. However, security in the region is ineffective as the intensity and frequency of the attacks remains static. On August 27th, the ADF killed 19 civilians and kidnapped several others in North Kivu, and mutilated 30 more in Ituri two days later. 

Despite efforts by both the Congolese army (FARDC) and the United Nations Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), little improvement has been made with regards to basic human rights. However, another possible way to alleviate the situation in the Congo is to prosecute the leaders of the NSAGs. 

Despite the fact that the conflict in the DRC is domestic, international law still applies. Some aspects of international law are applicable to all states, known as conventional laws. However, in order to enforce international law at an international court, a state must consent to the court’s jurisdiction. Consent is typically given by being party to a treaty, such as the Geneva Conventions. 

Article 3 of the Geneva Conventions addresses the rights of civilians during conflicts not of international character. Each party to a conflict on the territory of a state party to the Geneva Conventions is bound to the treaty. Specifically, Section 1 states that, “Persons taking no active part in the hostilities… shall be treated humanely… violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture [are prohibited].” Thus, even though the militias are not state-sanctioned, they are still bound to the same rule of law as the DRC. 

However, the Geneva Conventions did not create an international tribunal to hear cases in breach of the conventions. Instead, the state party to the convention is responsible for bringing individuals in breach of the Convention before its own courts. Thus, according to the Geneva Convention, the DRC would have to detain the militia leaders and try them in their court system. Considering that the DRC has been in conflict with some of the groups for almost 20 years, this situation seems unlikely.

There are other alternatives to prosecuting NSAG war criminals. Precedents from the infamous trials of the Serbo-Croatian War demonstrate one way in which the international community can handle the prosecution.

During the Serbo-Croatian War, members of the self-proclaimed Srpska Republic committed numerous war crimes, including the Srebrenica Massacre. These criminals were not part of a legitimate state, and thus were private actors. Unlike state officials, international law does not apply to private citizens. Thus arises the question of who is responsible when militias commit crimes - Is it the responsibility of the state to have prevented this crime to begin with? In the case Kadic v. Karadzic (1995) (which was tried in New York City under the Alien Tort Act), the court found that war crimes and genocide need only an agent of a “party to the conflict” and not a state actor. However, the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment states that torture (or other degrading treatment or punishment) must be “instigat[ed] … with the consent or acquiescence of a public official or other person acting in an official capacity.” So, in order to be prosecuted for torture, the plaintiffs had to prove that the war criminals were state actors.  

However, the war criminals of the Serbo-Croatian War were not shielded from their crimes due to a lack of recognition of their state. As per the Montevideo Convention, the Srpska Republic fulfilled all the requirements to be a state. Furthermore, the court in Kadic v. Karadzic ruled that the plaintiffs were entitled to prove that the defendant acted in concert with Yugoslavia to commit war crimes, which would have allowed Karadzic to be tried as an individual acting in official capacity. Thus, there are two avenues for NSAG members to be tried in for the crime of torture. 

Although the NSAGs of the DRC are not acting on behalf of a self-proclaimed state, their actions of mass-murder and torture are triable offenses under international law. Just like the Geneva Conventions, the hardest part of trying war criminals is bringing them before an international tribunal. If the conflict in the DRC clears up, members of the NSAGs will be easily brought before the domestic court. However, just like in the Serbo-Croatian war, there are other international courts for the criminals to be tried in. 

In order for a criminal to be tried in the International Criminal Court (ICC), the State where the crime took place must not be investigating the crimes. This would be a violation of state sovereignty, and is not currently an issue within the DRC. However, in order for the ICC to exercise its jurisdiction over the alleged criminal, the State on the territory of the crime or the State of the criminal’s nationality must be party to the ICC. Since the DRC is a party to the ICC, there should be little issue bringing the criminals before the ICC.

The investigation would begin by referral to the prosecutor of the ICC from a variety of sources. The Prosecutor can submit the request for investigation to the Pre-Trial Chamber, which authorizes the investigation; a proper investigation then begins by gathering information. Then, during the investigation, the Pre-Trial Chamber can issue a warrant of arrest for any individual with the alleged charges. The Pre-Trial Chamber can request states to aid with the arrest, and once the criminal is brought to the ICC, a typical criminal proceeding follows. 

In the case of the NSAGs of the DRC, the most likely crimes that would be brought against them would be War Crimes under Article 8(c) of the Rome Statute of the ICC. According to the ICC, war crimes in domestic conflict are “grave breaches of the Geneva Conventions,” such as torture, mutilation, and intentionally attacking civilian populations and civilian objects. Additionally, further investigation may reveal that the NSAGs are engaging in other violations, such as forced pregnancy or ethnicity-based killing.

So far, the observed war crimes in the DRC fall under the jurisdiction of the ICC. However, it is possible that the killings are ethnicity-based. Under Article II of the Genocide Convention, the mass murder of a specific national, ethnical, racial, or religious group is genocide. If the investigation reveals that the mass-murders in the DRC consititute genocide, then the jurisdiction of the case would be brought before the International Court of Justice (ICJ) instead of the ICC. 

Similarly to the Kadic v. Karadzic (1995) case, the NSAGs in the DRC can be prosecuted for genocide, even if they are not tied to a state. Since the DRC is also a signatory to the Genocide Convention, it has given the ICJ permission to prosecute the state for genocide, meaning that there are minimal legal barriers for prosecution of genocide. However, the minimal legal barriers do not entail that the prosecution would occur in a timely manner, or that the killings would end.

Although there are multiple paths to prosecuting NSAGs in the DRC for war crimes and violations of international law, it is important to remember that international legal proceedings are very long. If the prosecution began tomorrow, it is likely that there wouldn’t be a resolution until 2024 at a minimum. That date would be much later if the states involved were noncompliant in the investigation. The most realistic outcome is that there will only be justice served after the conflict has ended.

Olwyn Kells is a junior concentrating in International and Public Affairs and Slavic Studies. She currently serves as a staff writer for the BULR Blog, and can be reached at olwyn_kells@brown.edu.