Securing Congo's Peace: Accountability For Crimes By M23's Commander Sultani Makenga And The Foreign Sponsors

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U.S. Special Envoy to the Great Lakes former Senator Russ Feingold backs prosecution of M23 leadership involved in war crimes. What about their foreign sponsors -- International law holds them accountable

[Commentary: Prosecuting War Crimes]

The military defeat of Gen. Sultani Makenga and his gangster army by Congo's army with UN assistance is a welcome development.

It is time for justice, particularly for the victims and survivors of the proxy wars waged in the territory of the Democratic Republic of the Congo (DRC).  The M23 and its foreign backers must be held to account for the heinous crimes of mass murders, rape and other forms of sexual violence, recruitment and deployment of child soldiers and other serious violations of international humanitarian law.

M23 is an offshoot of a group called National Congress for the Defense of the People (CNDP) formerly headed by Gen Laurent Nkunda who currently resides at Kigali in Rwanda.

The objective of the CNDP was to create a new breakaway independent state in eastern Congo, allegedly with the tacit approval of Rwanda. Gen Nkunda had earlier broken away from Gen. Bosco Ntaganda, now an accused at the ICC. He had also sought refuge in Rwanda prior to surrendering to the US Embassy in Kigali, Rwanda for onward transfer to The Hague.

The military and political leaders of M23 deemed most responsible for serious crimes committed in the DRC must be investigated and prosecuted either by the International Criminal Court (ICC) or by the DRC national justice system.

These senior M23 leaders include Bertrand Bisimwa, the political head and self-styled Commander-in-Chief of the M23; Gen Sultani Makenge, the military Commander and Col. Jean Marie Vianny Kazaramo, Deputy Military Commander of M23.

Gen Makenga has a long history of violence against the civilian population. He joined the Rwanda Patriotic Front (RPF) as a child soldier, then aged 17. After the defeat of the Habayrimana regime, he continued with his many wars in the DRC, beginning in 1996, until his recent surrender to Uganda.

In 2012, the United Nations Security Council imposed a travel ban and asset freeze on Gen. Makenga. The Council accused him of being responsible for killing and maiming, rape and sexual violence, abduction of civilians and forced displacement. He was also accused of recruiting and deploying child soldiers.

These are serious violations of international humanitarian law for which there is no amnesty. Any agreement reached between the DRC government and M23 fighters must of necessity exclude any form of blanket amnesty.

Rejection of any amnesty provision in the agreement is necessary because after the defeat of the M23 by the Congolese Army, it has been reported that at least three mass graves have been discovered.

The government of President Joseph Kabila is reported to have set up a Special Commission to identify the graves and to determine the scale as well as those responsible for the crimes. To successfully carry out this task, the DRC government needs the support of the international community and the United Nations experts. It is only after forensic examination has been conducted that the scope and extent of the crimes can be determined and the identification process of the perpetrators can then seriously begin.

President Museveni is not an honest broker: With UN Security Council travel ban still in force, Uganda ought to have arrested and transferred Gen. Makenge to the DRC immediately or, at least as soon as it is practicable.  President Museveni would not be happy with President Kabila were he to arrest Joseph Kony and then decline to transfer him to The Hague or to Kampala. President Museveni must do the right thing and transfer the M23 leadership to the DRC until such time that the ICC may request their transfer to The Hague.

However, a close examination of Uganda’s involvement in the internal affairs of the DRC suggest that President Museveni is manipulating the Kampala Peace Talks as a cover to protect Gen. Makenga and his gangster fighters from criminal prosecution either at the ICC where the DRC situation has already been referred by the DRC government, or a national trial in the DRC. At his trial, Gen Makenge may disclose information about his military, financial and political relationship with some senior members of the National Resistance Movement (NRM) government and the leadership of the Uganda Peoples Defense Force (UPDF).

This conclusion is based on President Museveni’s track record of military, financial and political interference in the domestic affairs of the DRC. In a case decided by the International Court of Justice (ICJ), namely Armed Activities on the Territory of the Congo (DRC v Uganda) Judgment of 19 December 2005, the ICJ made a number of important legal and factual findings.

First, the ICJ held that unlawful military intervention by Uganda in the DRC constitutes grave violations of prohibition on the use of force expressed in Article 2, paragraph 4 of the Charter of the United Nations. Further, the ICJ held that the Republic of Uganda, by engaging in military activities in the DRC on the latter’s territory, by occupying Ituri, and by actively extending military, logistics, economic and financial support to irregular forces having operated on the territory of the DRC violated the principle of non-use of force in international relations and the principle of non-intervention.

Second, the Court held that Uganda, by the conduct of its armed forces committed acts of killing, torture and other forms of inhumane treatment of the Congolese civilian population, destroyed villages and civilian buildings, failed to distinguished between civilian population in fighting with other combatants, recruited and trained child soldiers, incited ethnic conflicts and failed to take measures to put an end to such conflict. This finding by the Court mirrors criminal acts and omissions committed in northern Uganda by the UPDF when civilians were herded into camps, without sanitation, medical care or security with the result that at least one hundred civilians were dying every week.  Civilian buildings were destroyed and water wells poisoned. The UPDF acts and omissions in northern Uganda also violated international humanitarian law in its treatment of the civilian population as were its acts in the DRC.

Third, the ICJ ruled that, Uganda, as an Occupying Power in Ituri, was in violation of the 1949 Geneva Conventions and is internationally responsible for serious violations of international humanitarian law committed by Uganda Peoples Defense Force (UPDF) in the Congo. And, finally, the ICJ found Uganda guilty for illegal exploitation of natural resources in the DRC.

At a later hearing, the ICJ ordered Uganda to pay to the DRC government the sum of US$ 10 billion as compensation for plundering. Uganda has not, so far, paid the fine.

Based on the ICJ legal and factual findings, President Museveni and his NRM government cannot be, and is not, an honest broker between the DRC, M23 and other armed groups opposed to the DRC government. President Museveni is an interested party and a potential suspect.

For the Congolese victims and survivors, justice can only be delivered if; a compressive investigation and prosecution of all parties to the armed conflict, including criminal acts and omissions of the Uganda People's Defense Force (UPDF) are undertaken. Most of the internal groups in the DRC were engaged in proxy wars initiated and financed by foreign governments. Since the ‘Situation in the Democratic Republic of the Congo’ has already been referred to the ICC by the DRC government, it is pertinent that the international community supports the ICC Chief Prosecutor whenever she decides to expand her scope of investigations to cover acts or omissions of the leadership of foreign governments who financed or provided political and military support to their respective proxy armies in the DRC.

The case of Charles Taylor, former President of Liberia is a relevant precedent for investigating and prosecuting leaders who finance wars or aid and abet criminal acts in neighboring states.

Gen. Makenga and his gangster army, although manipulated by regional powers, must not be given amnesty for their criminal acts. Instead the defeated M23 leadership must be prosecuted by the DRC government or at The Hague if the ICC Chief Prosecutor decides to do so.

It is hoped that this time, the African Union will not intervene on the flimsy ground that the ICC is targeting Africa. The AU needs to recognize that it is time for accountability for serious violations of international humanitarian law.


Dr. Obote Odora is Consultant in International Criminal Law and Policy



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