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Central Africa: Q&A – Democratic Republic of Congo Conflict in North Kivu Province

Africa News

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Abuses by the Congolese Army, Rwandan Forces, M23, and Other Armed Groups

The Rwandan army and the M23 armed group have indiscriminately shelled displacement camps and other densely populated areas near Goma in eastern Democratic Republic of Congo throughout 2024. The Congolese armed forces and allied militias have increased the risk facing displaced people in the camps by deploying artillery nearby. Both sides have killed and raped camp residents, interfered with aid delivery, and committed other abuses. A new Human Rights Watch report documents laws-of-war violations by parties to the armed conflict in Congo’s North Kivu province, which may amount to war crimes.

Over 100 armed groups are active in eastern Congo, mainly in the eastern provinces of Ituri, North Kivu, and South Kivu. The resurgence of the M23 rebellion in late 2021, with Rwanda’s support, has led to multiple armies intervening on Congolese soil. The United Nations has reported on the presence of Rwandan and Ugandan troops in support of M23, with the Rwandan army taking a direct role in hostilities against Congolese forces.

In addition, the East African Community Regional Force – comprised of Burundian, Kenyan, South Sudanese, and Ugandan troops – deployed in Congo in November 2022. It withdrew in December 2023, at President Félix Tshisekedi’s request, although a Burundian military presence has remained in the country through a bilateral agreement. In January 2024 the Southern African Development Community mission in DR Congo (known as SAMIDRC), made up of Malawian, South African, and Tanzanian troops, was deployed.

The following questions-and-answers addresses issues relating to international humanitarian law (the laws of war) governing the 2024 hostilities between the Democratic Republic of the Congo, Rwanda, and non-state armed groups and militias in North Kivu province.

This document focuses on international humanitarian law governing the conduct of hostilities to facilitate analysis of the conduct of parties involved in the conflict between Congolese forces, the Rwandan army, and the abusive armed groups they support, with the aim of deterring violations of the laws of war and encouraging accountability for abuses.

The document does not address whether Congolese and Rwandan armed forces, and non-state armed groups were justified in their attacks or other matters concerning the legitimacy of resorting to armed force, such as under the UN Charter. Human Rights Watch does not take positions on issues of justifications to use armed force. The primary goal is to document violations and encourage all parties to respect the laws of war.

  1. What international humanitarian law applies to the current armed conflict between Congolese and Rwandan armed forces, and other armed forces and non-state armed groups?

International humanitarian law recognizes the ongoing fighting among Congolese and Rwandan armed forces, and other armed forces and non-state armed groups as an armed conflict.

Hostilities between Congolese and Rwandan forces are governed by treaty law for an international armed conflict, notably the four Geneva Conventions of 1949 and the First Additional Protocol of 1977 to the Geneva Conventions. All armed conflicts, including fighting involving only non-state armed groups and militias, are bound by Common Article 3 to the Geneva Conventions of 1949 and customary international humanitarian law applicable to non-international armed conflicts. The rules concerning the methods and means of combat, and fundamental protections for civilians are largely the same for international and non-international armed conflicts.

  1. What are the fundamental principles of international humanitarian law?

Foremost among the rules of international humanitarian law is the principle of distinction, that parties to a conflict must distinguish at all times between combatants and civilians. Civilians may never be the target of attack. Warring parties are required to take all feasible precautions to minimize harm to civilians and civilian objects, such as homes, shops, schools, and medical facilities. Attacks may target only combatants and military objectives. Attacks that target civilians or fail to discriminate between combatants and civilians, or that would cause disproportionate harm to the civilian population compared to the anticipated military gain, are prohibited.

Additionally, Common Article 3 provides a number of fundamental protections for civilians and anyone who is no longer taking part in hostilities, such as captured combatants, and those who have surrendered or become incapacitated. It prohibits violence against them – murder, cruel treatment, and torture – as well as outrages against their personal dignity, and degrading or humiliating treatment. It also prohibits taking hostages.

Parties to a conflict are also obligated to abide by international humanitarian law irrespective of the conduct of the other belligerent parties. That is, laws-of-war violations by one side do not justify violations by the other side. So-called belligerent reprisals – normally unlawful acts that are permissible under certain circumstances – are prohibited against civilians or the civilian population.

  1. What individuals and objects are lawfully subject to military attack?

The laws of war recognize that some civilian casualties may be inevitable during armed conflict, but impose a duty on warring parties at all times to distinguish between combatants and civilians, and to target only combatants and other military objectives, and to take all feasible precautions to avoid or minimize civilian casualties and damage to civilian objects.

Combatants include members of a country’s armed forces and commanders, and full-time fighters in non-state armed groups. They are subject to attack at all times during hostilities unless they are captured or incapacitated.

Civilians lose their immunity from attack when and only for such time as they are directly participating in hostilities. According to guidance by the International Committee of the Red Cross (ICRC), the laws of war distinguish between members of the organized fighting forces of a non-state party, who may be targeted during an armed conflict, and part-time fighters, who are civilians and may only be targeted when and only for such time as they are directly participating in hostilities.

The laws of war also protect civilian objects, which are defined as anything not considered a legitimate military objective, from deliberate attack. They include homes, businesses, places of worship, hospitals and other medical facilities, schools, and cultural monuments.

Civilian objects become subject to legitimate attack when they become military objectives; that is, when they are making an effective contribution to military action and their destruction, capture, or neutralization offers a definite military advantage, subject to the rules of proportionality. This would include the presence of members of armed groups or military forces in what are normally civilian objects. Where there is doubt about the nature of an object, it must be presumed to be civilian.

The laws of war prohibit indiscriminate attacks, which strike military objectives and civilians or civilian objects without distinction. Examples of indiscriminate attacks are those that are not directed at a specific military objective, or that use weapons that cannot be directed at a specific military objective. Prohibited indiscriminate attacks include area bombardment, which are attacks by artillery or other means that treat as a single military objective a number of clearly separated and distinct military objectives located in an area containing a concentration of civilians and civilian objects.

An attack on an otherwise legitimate military target is prohibited if it would violate the principle of proportionality. That is, if it may be expected to cause incidental loss of civilian life or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated from the attack.

  1. What are the obligations of Congolese and Rwandan armed forces, and non-state armed groups with respect to fighting in populated areas, including urban areas and displacement camps?

International humanitarian law does not prohibit fighting in urban areas, although the presence of large numbers of civilians places greater obligations on warring parties to take steps to minimize harm to civilians.

The laws of war require the parties to take constant care during military operations to spare the civilian population, and to “take all feasible precautions” to avoid or minimize the incidental loss of civilian life and damage to civilian objects. These precautions include doing everything feasible to verify that the objects of attack are military objectives and not civilians or civilian objects, giving “effective advance warning” of attacks when circumstances permit, and refraining from an attack if the rule of proportionality will likely be violated.

Forces deployed in populated areas must, to the extent feasible, avoid locating military objectives – including soldiers and fighters, but also ammunition, weapons, equipment, and military infrastructure – in or near densely populated areas, and endeavor to remove civilians from the vicinity of military objectives. Belligerents are prohibited from using civilians to shield military objectives or operations from attack. “Shielding” refers to purposefully using the presence of civilians to make military forces or areas immune from attack.

The warring parties should provide for the protection of and assistance to internally displaced people in accordance with the 2012 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention).

At the same time, the attacking party is not relieved from its obligation to take into account the risk to civilians, including the duty to avoid causing disproportionate harm to civilians, simply because it considers the defending party responsible for having located legitimate military targets within or near populated areas. The presence of Congolese artillery in a populated area would not justify attacking the area without regard to the threatened civilian population, including the duty to distinguish combatants from civilians and the rule of proportionality.

  1. What are the concerns about the use of explosive weapons?

The use of explosive weapons in populated areas is one of the gravest threats to civilians in contemporary armed conflict. In addition to causing civilian casualties directly, explosive weapons with wide-area effects have frequently damaged or destroyed civilian infrastructure, such as bridges, hospitals, and schools, causing long-term harm to civilians, including the disruption of basic services. These weapons have a wide-area effect if they have a large destructive radius, are inherently inaccurate, or deliver multiple munitions at the same time. Their use in populated areas forces people to flee their homes, exacerbating humanitarian needs.

Weapons that have a large destructive radius include those that detonate a large amount of explosive material and those that propel fragments over a large area, or both. Munitions with large amounts of explosive material can produce fragmentation that spreads unpredictably over a wide area, and a powerful blast wave that can cause severe physical injuries to the human body and physical structures, cause blunt force trauma and physical damage from flying debris, and cause or exacerbate other injuries or existing illnesses. Munitions that have preformed fragmentation warheads are designed to spread scores of fragments over an area, making it difficult or impossible to limit the effects of the weapon.

The use of explosive weapons with wide-area effects in the densely populated areas of North Kivu, where many residents and displaced people live, could be expected to cause serious harm to civilians and civilian objects. In addition, the use of rockets that are fundamentally inaccurate or designed to saturate a large area and are likely to strike civilians and civilian objects, also cause foreseeable harm to civilians and civilian objects.

More than 85 countries have endorsed the 2022 Political Declaration on Strengthening the Protection of Civilians from the Humanitarian Consequences Arising from the Use of Explosive Weapons in Populated Areas. Neither Rwanda nor Congo have done so.

  1. Should belligerent parties give warnings to civilians in advance of attacks? What constitutes an “effective” warning?

The laws of war require warring parties to give “effective advance warning” of attacks that may affect the civilian population unless circumstances do not permit it. What constitutes an “effective” warning will depend on the circumstances. Such an assessment would take into account the timing of the warning and the ability of civilians to leave the area. A warning that does not give civilians adequate time to leave for a safer area would not be considered “effective.”

  1. What are the obligations of Congolese and Rwandan armed forces, and non-state armed groups to humanitarian agencies?

Under international humanitarian law, parties to a conflict must allow and facilitate the rapid and unimpeded passage of impartially distributed humanitarian aid to the population in need. The belligerent parties must consent to allow relief operations to take place and may not refuse such consent on arbitrary grounds. They can take steps to ensure that consignments do not include weapons or other military materiel. However, deliberately impeding relief supplies is prohibited.

In addition, international humanitarian law requires belligerent parties to ensure the freedom of movement of humanitarian relief personnel essential to the exercise of their functions. This movement can be restricted only temporarily for reasons of imperative military necessity.

The 2012 Kampala Convention states that armed groups are prohibited from “violating the civilian and humanitarian character of the places where internally displaced persons are sheltered and [infiltrating] such places.”

  1. How should parties to the conflict address cases of sexual violence?

Acts such as rape, sexual assault, sexual slavery, forced prostitution, forced sterilization, forced abortion, and forced pregnancy, when committed in the context of an international or non-international armed conflict, are serious violations of international humanitarian law and amount to war crimes.

Rape and other forms of sexual violence may also constitute and be prosecuted as torture, in particular when committed in the context of detention.

Acts of sexual violence can also constitute crimes against humanity and acts of genocide.

In armed conflicts, international humanitarian law provides rules to protect access to health care. This means that healthcare facilities, providers, and medical equipment and supplies are to be protected from all attacks, and warring parties should not impede, but instead facilitate, access to health care, including for survivors of sexual violence.

All parties to the conflict should ensure access to all sexual and reproductive health information and services. This should include ensuring access to services for the prevention, treatment, and management of sexually transmitted infections and to safe, legal, and comprehensive abortion care for all the women and girls affected by the conflict.

Congo and Rwanda authorities should investigate and, evidence permitting, fairly prosecute individuals implicated in rape and other forms of sexual violence. They should also ensure access to medical, psychological, legal, social, and livelihoods support, as well as reparations, for survivors of sexual violence.

  1. Does international human rights law still apply in North Kivu?

International human rights law is applicable at all times, including during armed conflict situations in which the laws of war apply, as well as during times of peace. Rwanda and Congo are party to core international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. These treaties outline guarantees for fundamental rights, many of which correspond to the protections to which civilians are entitled under international humanitarian law (such as the prohibition of torture, inhuman and degrading treatment, nondiscrimination, and the right to a fair trial).

In May 2021 Congo declared a state of siege, akin to martial law, in North Kivu and Ituri provinces. While the ICCPR permits some restrictions on certain rights during an officially proclaimed public emergency that “threatens the life of the nation,” any derogation – that is, suspension – of rights during a public emergency must be of an exceptional and temporary nature, and must be limited “to the extent strictly required by the exigencies of the situation,” and should not involve discrimination on the grounds of race, religion, and more.

Certain fundamental rights – such as the rights to life and to be secure from torture and other ill-treatment, the prohibition on unacknowledged detention, the duty to ensure judicial review of the lawfulness of detention, and the right to a fair trial – must always be respected, even during a public emergency.

  1. Who can be held responsible for violations of international humanitarian law?

Serious violations of the laws of war that are committed with criminal intent are war crimes. War crimes, listed in the “grave breaches” provisions of the Geneva Conventions and as customary law in the Rome Statute, the founding treaty of the International Criminal Court (ICC), and other sources, include a wide array of offenses, such as deliberate, indiscriminate, and disproportionate attacks harming civilians, torture, and using human shields, among others. Individuals also may be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding, or abetting a war crime.

Responsibility also may fall on anyone planning or instigating the commission of a war crime. In addition, military commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes, and did not take the necessary steps to prevent them or punish those responsible.