Background to the Study and Motivation

There is a substantial weakness and limitation in the existing mechanisms for the prevention of violent conflicts in international law. Despite the need to be able to move quickly to prevent genocide and crimes against humanity, the United Nations has no capacity to avert such catastrophes, even when prompt action could save hundreds of thousands of lives. The international community's failure to prevent and resolve conflicts culminated in its failure to stop genocide in Rwanda in 1994 and to avert "ethnic cleansing" occurring in the Darfur region of Sudan. Such examples illustrate this incapacity, as do the other massive killings of civilians in Cambodia, the former Yugoslavia, East Timor, Sierra Leone, the Democratic Republic of the Congo, Liberia, and elsewhere.¹⁶

All these episodes led to intense studies, debates and evaluations over the UN capacities to address conflicts generally and internal armed conflicts in particular. The central conclusion indicated the existence of serious weaknesses within the organization, calling for various alternatives. Conflict prevention and management have thus acquired a relatively uncontested status within the UN community.

Significant thought is the question of which types of strategies are worthy of being adopted in preventing and managing conflicts.

15 Murray, R. ‘Conflict Prevention and the Human Rights Framework in Africa’ In McEvoy, K &

Newburn, T. (Eds.), (2003) Criminology, Conflict Resolution and Restorative Justice, New York:

Palgrave MacMillan, pp. 83-100.

16 Peck, C. (1996), The United Nation as a Dispute Settlement System: Improving Mechanisms for the Prevention and Resolution of Conflicts, The Hague: Kluwer Law International, p. 11

Peace building strategies, properly conceptualized, lie at the point where the UN Charter’s main concerns-peace and security, development and human rights- intersect and overlap. Policies which enhance economic development and distributive justice, encourage the rule of law and protect fundamental human rights- including the right to participate through the ballot box in the making of the government decisions which fundamentally affect peoples’ lives- are all in their own way security policies as well, addressing many of the problems which lie at the heart of violent conflicts.¹⁷

Although there is an attempt to regulate and manage armed conflicts, these efforts are seriously hampered by a number of factors. The basic presumption of international law post-1945 according to Article 2 (4) and 2 (7) of the UN Charter that the use of force is illegal, is qualified by the rules to the effect that self-defence and collective security are allowed. Furthermore, post-1990s legal framework accepted or at least tolerated the use of force for humanitarian intervention, which is defined as a coercive interference in the internal affairs of a state involving the use of armed force with the purposes of addressing massive human rights violation or preventing widespread human suffering.¹⁸ At the same time, international humanitarian law, which is intended to provide for rules regulating the actual conduct of warfare, has not always been respected and it is further limited by the distinction between international and non-international armed conflicts.¹⁹ It remains obvious, therefore, that preventing wars and massive human rights violations requires an alternative approach.

This study proposes a multidisciplinary approach to conflict prevention and management. The study is not positioned in any single family of legal sciences, but it rather combines public international law rules, human rights and theoretical as well as methodological perspectives of conflict resolution. Human rights violations have been a major source of conflicts in the Africa’s Great Lakes region.²⁰ Discrimination,

17 Peck, Ibid, p.ix

18 See generally Simon, C. (2001). Just War or Just Peace? Humanitarian Intervention and International Law, Oxford: Oxford University Press; Welsh, J. ‘Authorizing Humanitarian Intervention’ in Price, R. & Zacher, M. (Eds.) (2004). United Nations and Global Security, New York:

Palgrave Macmillan; Gray, C. (2000) International Law and the Use of Force, Oxford University Press, Oxford; Gray, C. ‘The Use of Force and the International Legal Order’ in Evans, M. (ed.), (2003). International Law, Oxford: Oxford University Press, p. 589.

19 For a thorough discussion of contemporary distinction between Wars and Belligerents, see Cassese, A. (2008). The Human Dimension of International Law: Selected Papers, Oxford: Oxford University Press, p. 99.

20 Mugwanya, G (2003) Human Rights in Africa: Enhancing Human Rights through the African Regional Human Rights System, New York: Transnational Publishers, pp. 180-224.

disregard for the rule of law, electoral malpractices, dictatorial regimes, suppression of popular participation in the affairs of government and impunity are but a few of the factors that violate human rights and lead to conflicts in the region. The perpetration of gruesome acts of sexual violence against women and girls in the conflicts in Burundi, Rwanda and the Democratic Republic of Congo (DRC) bears testimony to the impact of conflict on human rights.

The Africa’s Great Lakes conflicts (and others) have shown that traditional conflict resolution approaches currently applied under the auspices of the UN and regional bodies such as the AU are limited in impact and sustainability when undertaken without due consideration of human rights concerns. The relationship between conflict and human rights is both short-term and long-term in nature. In the short term, violent and destructive conflicts can lead to human rights violations. In the long term, a sustained denial of human rights can lead to conflicts, as fundamental needs of human beings are frustrated.²¹ The protection of rights is therefore of the utmost importance if conflicts are to be dealt with in an effective and constructive manner and lasting peace is to be created.

This direct relationship between rights and conflict has been generally under-explored in trying to resolve the Africa’s Great Lakes conflicts. In view of the effects of conflict on human rights, any attempt at resolving them must take into account the protection of human rights, rather than just the cessation of hostilities and negotiation of peace agreements. Though these measures have been successful in some conflicts, more often than not the protection of human rights is not given its necessary due prominence in conflict resolution.

Since the early 1990s the Africa’s Great Lakes region has been convulsed by interlocking civil wars, inter-state conflict and flawed democratic transitions.²² Many

21 Mertus & Helsing, supra note, 6. p.28.

22 Nzongola-Ntalaja, G. (2003) The Congo from Leopold to Kabila, London: Zed Books, p. 215-16.

According to Nzongola-Ntalaja the countries included in the designation ‘Great Lakes’ varies greatly from context to context. However, without delving into the various divergent views as to what constitutes Africa’s Great Lakes Region, the region is understood here to include not only the political

“core” countries of Burundi, Rwanda and DRC, but also includes such neighbouring states in East Africa as Kenya, Tanzania and Uganda. For further description of this region, see for example Mpangala, G. (2000). Ethnic conflicts in the Region of the Great Lakes: Origins and Prospects, Dar Es Salaam: Dar Es Salaam University Press, p. 1.

millions of lives across the region have been lost or blighted as a result of violence and displacement. Of the countries in the region, only Tanzania has managed to avoid such catastrophe, although it has been heavily affected by the strain of hosting hundreds of thousands of refugees.²³

In addressing the above arguments, the conflicts in the Africa’s Great Lakes Region are closely examined, with the DRC as a case study. The conflicts of the last decade across the region must be understood in the context of longer-term dynamics of ethnic conflict and state formation. It is particularly important to study patterns of intervention in each other’s affairs by the states of the region and the role of natural resources in fuelling conflict.²⁴ Three factors have been identified by analysts as key contributors to conflict in the region: ethnicity, state failure and greed. Peace-building strategies have increasingly sought to address these factors.²⁵ But, have these efforts sought to acknowledge the historical contexts within which these factors emerged?

There is no question that ethnicity has been an important factor in generating conflict in the Great Lakes region. However, ethnicity must be understood in a historical and political context. For example, Hutu and Tutsi identities are in no way ‘primordial.’

These identities hardened under colonial rule and became virtually the sole basis for political action in Burundi and Rwanda after the colonial era ended. Ethnicity has also undoubtedly played a major role in causing conflict in Uganda and the DRC.

In the case of the DRC, the people of the Congo have suffered cruelty throughout the past century from a particularly brutal experience of colonial rule. Following independence in 1960 and external interference by the United States and other Western powers, there was a generation-long spoliation at the hands of Mobutu (the dictator installed by the West in 1965), and periodic warfare which continues fitfully

23 By the end of 2004, more than 1 million refugees from the Great Lakes region were hosted in Tanzania, although by 2008 the number dropped to 334,862 following voluntary repatriation, local integration and resettlement to a third country, available at <http://www.moha.go.tz>, last visited September 8, 2009. See further for these statistics, Mwachifi, S.(2006) ‘Security and Related Implications of Forced Migration: East Africa and Great Lakes Region’, paper presented to the East African Summer School for Refugee and Humanitarian Affairs, Nairobi, 2006, p. 5. (On file with the Author)

24 Huggins, C. (2004) ‘Preventing Conflict through Improved Policies on Land Tenure, Natural Resource Rights, and Migration in the Great Lakes Region’ Eco-Conflicts, Vol. 3 No. 1, pp. 1-4.

25 Lunn, J. (2006) ‘The African Great Lakes Region: An End to Conflict?’ RESEARCH PAPER 06/51 25 OCTOBER 2006, available at < ttp://www.parliament.uk/commons/lib/research/rp2006/rp06-051.pdf>. last visited, September 8, 2009.

even now in the east of the country. But, as an insightful political history of the Congolese democratic movement in the 20^th century decisively makes it clear, the Congolese people have responded by trying both to establish democratic institutions at home and to free themselves from exploitation from abroad. (Indeed, internal and external exploitation cannot be separated one from the other).²⁶ Much of what is happening derives from the inbuilt culture of brutality from the time of King Leopold II of Belgium, who owned the “Congo Free State” as his private property. Leopold has gone down in history as a man of greed, who carved out an empire based on terror to harvest rubber.²⁷ Congolese families were held hostages, starving to death if the men failed to produce enough rubber. The shocking massacres and widespread brutality of the Belgian staff of a company which was ‘trading’ (substitute word for

‘plundering’) in the Congo, provided an outline for Joseph Conrad’s famous historical novel on Congo ‘Heart of Darkness’²⁸ which, set in the 1890s, remain a true testimony of crimes committed by colonial rulers in the heart of Africa, the current DRC. In this way, a terror was unleashed that, by all accounts, would eventually halve the population of the Congo. “During the Leopold period and its immediate aftermath the population of the territory dropped by approximately ten million people"²⁹

Congo was to attain independence smoothly in 1960. However, under the turbulent ghost of King Leopold II it fell under General Joseph Mobutu, who staged a military take over, and tyrannically misruled the country for 32 years while receiving misguided Western foreign assistance. His criminal government was preoccupied with extraction and extortion such that, like King Leopold II, he ran the country as a personal property until Laurent Kabila’s forces overthrew him in 1997. Kabila was himself assassinated four years later, to be succeeded by his son, the current President Joseph Kabila. The conflict under current study started all over in 1998, and efforts to resolve it motivated this study.

26 Nzongola-Ntalaja, supra note 22, cover page.

27 Prunier, supra note 12, p. 76.

28 See generally Cox, C. (Ed.), (1982) Conrad: Heart of Darkness, Nostromo and Under Western eyes:

A Casebook, London: Macmillan; Conrad, J. (1999) Heart of Darkness and Selections from The Congo Diary of Joseph Conrad, New York: Modern Library.

29 Hochschild, A. (1988). King Leopold's Ghost: A Story of Greed, Terror and Heroism in Colonial Africa, Boston: Houghton Mifflin, p. 233.

As pointed out early, for the purposes of this study, only one country in the Africa’s Great Lakes region, the DRC will be studied. Only by looking at the Great Lakes region as whole, however, with this one country as a case study, can one comprehend the calamities suffered by this part of the African continent.

The DRC is chosen as a case study for a number of reasons. Different traditional conflict resolution initiatives have been applied in the DRC since the war broke in August 1998. The involvement of many parties in the war and the complexity of interests have made conflict resolution initiatives rather complicated.³⁰ From the time the war broke various initiatives were taken under a sub-regional organization (SADC), a regional set up (AU) and the international community, particularly under the UN. Firstly, the SADC and AU led various negotiations, culminating in the process of the Inter-Congolese Dialogue from the aborted Addis Ababa meeting, through the Sun City I process of February-April 2002, the December Pretoria Agreement up to the Sun City II final talks of April 2003.³¹

Following the April 2003 Sun City Agreement, the composition of Transitional Government was finally settled and agreement reached to integrate all rebel factions into an integrated national army. Under a ‘1+4 formula’, the Transitional Government involved the appointment of four Vice-Presidents under President Joseph Kabila, thereby ensuring the representation of the main armed Congolese parties to the conflict.³² The parties declared the conflict in the DRC formally over. The new Transitional Government was promulgated in June 2003, leading to relatively peaceful parliamentary and presidential elections in July 30^th, 2006 with the run-off on October 29^th 2006.

30 For a thorough discussion on the parties involved in the DRC conflict and their varying interests, see Mpangala, supra note 22, p. 92

31 See detailed discussions of this dialogue in Apuuli, P. (2004). ‘The Politics of Conflict Resolution in the Democratic Republic of Congo: The Inter-Congolese Dialogue Process’ in African Journal of Conflict Resolution, vol. 4 No.1, pp. 65-84.

32 The various elements and entities involved in the Inter-Congolese Dialogue, Parties to the Global and Inclusive Agreement on Transition in the Democratic Republic of the Congo: were the Government of the Democratic Republic of the Congo the Congolese Rally for Democracy (RCD), the Movement for the Liberation of the Congo (MLC), the political opposition, civil society, the Congolese Rally for Democracy/Liberation Movement (RDC/ML), the Congolese Rally for Democracy/National (RCD/N) and the Mai-Mai.

The second set of conflict resolution initiatives in the DRC conflicts was that conducted under the auspices of the UN or UN led institutions. Firstly, the UN deployed a more military approach in the form of Peacekeeping operations, the MONUC,³³ which comprises of more than 17,000 personnel, being the biggest UN force in the world and costing $1.2 billion a year.³⁴ The mission must be seen as the start of the long road to change leading to free elections and sustainable and responsible government. Furthermore, should peacekeepers deploy to enforce peace and/or respond to a humanitarian crisis they must deploy in significant numbers with the appropriate command structure, mandate and capability to coerce effectively as required.

Additionally, judicial settlement or rather an adjudication-as-conflict-resolution approach has been tried in resolving the Congo conflict. Following armed activities committed by foreign troops from Uganda, Rwanda and Burundi in the DRC territory, the latter initiated proceedings before the ICJ in June 1999, alleging inter alia, that acts of armed aggression carried out by Uganda on the DRC territory constituted a flagrant violation of the United Nations Charter and the Charter of the Organization of African Unity (OAU).³⁵ The case, which continued against Uganda alone, ended in 2005 with the ICJ verdict implicating Uganda to have breached international law against the DRC and was thus ordered to pay damages. In another vein, following the issuing of a warrant of arrest in January 2006, in March Thomas Lubanga Dyilo, a former Ituri militia leader, was handed over to the ICC by the DRC authorities.³⁶ However, other militia leaders in custody are reported to have been released, by the Congolese authorities.³⁷ At the time of writing this thesis, this case was still pending before the ICC. It remains to be seen what impact the ICC’s decision will have on the developments in the DRC conflict.

33 This is an initial name of the French words “Mission de l' Organisation des Nations Unies en République démocratique du Congo, the United Nations Organization Mission in the Democratic Republic of the Congo (hereinafter to be referred to as “the MONUC”)

34 Wrong, M. (2006) ‘Congo on the Edge’. Available from the website of the All Party Parliamentary Group on the Great Lakes and Genocide Prevention at: <http://www.appggreatlakes.org>, last visited, September 8, 2009.

35 The original case was brought against Uganda, Burundi and Rwanda. The DRC discontinued the cases against Burundi and Rwanda in 2001 and filed a new submission against Uganda in 2002.

36 For a copy of the ICC’s arrest warrant, see < http://www.icc-cpi.int/cases/RDC.html>, last visited September 8, 2009.

37 Twenty-first report of the Secretary-General, 13 June 2006, para. 54.

Despite these notable initiatives by various organizations and ‘never again’ call after Rwanda genocide, the conflict prevention performance has been and is still ad hoc and ineffective because it does not address the root causes of conflicts. All the approaches have rarely addressed human rights, local dynamics and the historical as well as the multifaceted nature of the conflicts. Furthermore, participants in the peace process are restricted to representatives of political parties, the state and rebel movements, to the total exclusion of the civil society and other human rights groups.

In order to understand the present conflict situation in the Great Lakes region, it appears that focus should be placed not on the ancient past, but rather on the recent history, starting from colonialism, which has a great impact on the origin of these conflicts.

The various approaches to resolution of conflicts, as applied within the region will also be thoroughly studied. Proper analysis of these conflicts together with the suggestions on the new approaches to durable resolution of the same and prevention of other conflicts of similar nature will be fully addressed.