A Worsening Context
On the morning of June 17, a Congolese soldier entered Rwanda with an AK-47 and began shooting at Rwandan security personnel and civilians at the border. After injuring two Rwandan police officers, the soldier was shot and killed by Rwandan law enforcement.
The border shooting is one of the latest events in an escalating series of incidents between the Democratic Republic of the Congo (DRC) and Rwanda. Recent tensions stem from an ongoing conflict between DRC and the March 23 Movement (M23), a DRC-based armed group with historical links to the Rwandan government. Large-scale fighting broke out between M23 and the Congolese military (FARDC) in the DRC’s North Kivu province in March 2022. Though M23 had once been one of the most powerful armed groups in eastern DRC, notably taking over the provincial capital of Goma in 2012, the group has been far less active in recent years. Until the latest flare up, international media predominantly focused on armed conflicts involving other armed groups in eastern DRC, a number of which have led to widespread civilian harm.
The re-emergence of conflict between M23 and FARDC has already had devastating consequences for civilians, including the displacement of over 150,000 people, at least 23 civilians killed, and the separation of hundreds of children from their families. Continued conflict has led to major demonstrations in DRC as well as a rise in violent rhetoric towards Kinyarwanda speakers in eastern Congo. On June 17, U.N. High Commissioner for Human Rights Michelle Bachelet and U.N. Special Adviser on the Prevention of Genocide Alice Nderitu called attention to the “hate speech that is fueling violence against civilians” in DRC.
Tensions between DRC and Rwanda are not new. But following several years of improved relations between the two countries, recent developments raise new questions of international law, including whether an armed conflict exists between the two countries or between the DRC and M23 and the legal frameworks applicable to different conflict scenarios.
Since the resumption of conflict between the FARDC and M23—which began in late 2021 but escalated first in March and then again in May—M23 has proven effective in their operations. In June, the armed group notably took control of the strategic border town of Bunagana and continues to expand its operations. The Congolese army has also accused M23 of attacking MONUSCO, the U.N. peacekeeping mission operating in DRC, including downing a U.N. helicopter in March in an attack that killed eight peacekeepers.
As actions have escalated, so too have the Congolese and Rwandan governments’ accusations against one another.
In the past, M23 received significant and widely publicized support from the Rwandan government. In 2012, the U.N. Group of Experts on DRC found that Rwanda had provided “recruitment, troop reinforcement, ammunition deliveries and fire support.” In recent months, the Congolese government accused Rwanda of once again supporting M23. Congolese President Felix Tshisekedi claimed on June 5 that there is “no doubt” that “Rwanda has supported the M23 to come and attack the DRC.” Other international actors, including the Foreign Relations Committee of the U.S. Senate, have also called on Rwanda to cease supporting the armed group.
As the fighting has worsened, the Congolese government has heighted its accusations, including accusing Rwandan Defense Forces (RDF) of illegally crossing into the DRC and directly participating alongside M23 in battles against the FARDC. On June 13, following M23’s occupation of Bunagana, the FARDC accused Rwandan forces of committing “no less than an invasion of the Democratic Republic of Congo.”
The Rwandan government has denied providing support to M23. Instead, it has ratcheted up its own rhetoric, accusing the Congolese military of firing rockets into Rwanda, attacking Rwanda, and kidnapping two Rwandan soldiers. Rwandan government accusations have focused in part on the Forces démocratiques de libération du Rwanda (FDLR) armed group, some leaders of which participated in the 1994 Rwandan genocide and fled into eastern DRC following their government’s defeat in 1994.
Though the FDLR was once one the most powerful armed groups operating in the DRC, with the capacity to launch cross-border attacks against Rwanda, the group has been significantly weakened in recent years. Nonetheless, Rwandan President Paul Kagame evoked the threats posed by the FDLR, as well as other armed groups in eastern DRC, in a Feb. 8 speech, in which he stated, “[A]ll our eyes are on Congo. We are focused there because of the armed groups based there that threaten us.” The president highlighted his willingness to wage war “with or without the consent of others.”
These incidents, including worsening violence between the FARDC and M23 and increasingly bellicose rhetoric from the Rwandan and Congolese governments, may indicate the beginning of new armed conflicts in eastern DRC.
Does an Armed Conflict Exist?
Though certain aspects of recent events are contested, it is clear that international law related to the conduct of hostilities—including international humanitarian law (IHL) and international human rights law (IHRL)—is applicable to the unfolding situation.
Based on the events that have taken place over the last several months between Rwanda and the DRC, it is likely that an armed conflict has already begun between the two states, despite the lack of a declaration of war by either government. It is even clearer that an armed conflict exists between M23 and the DRC. What is less certain, however, is whether these are two separate conflicts, or whether Rwanda has “overall control” over M23 such that M23 and Rwanda are acting together against the DRC in an international armed conflict (IAC).
Rocket attacks between the two countries, or the deployment of Rwandan troops to assist in the takeover of the Congolese town of Bunagana, would almost certainly meet the interstate use of force requirements necessary to trigger an IAC. A Congolese soldier entering Rwanda and firing at security personnel and civilians lends further credence to the existence of an IAC, though its relevance could depend, in part, on whether the soldier acted independently or under a commander’s orders.
Separately, the outbreak of violence between the FARDC and M23 meets the threshold requirements to constitute a non-international armed conflict (NIAC), which could exist in parallel to an IAC between Rwanda and the DRC. There have been significant battles between the belligerents over the past several months causing the displacement of tens of thousands of IDPs, a strong indication that the intensity of fighting has reached a level of “protracted armed violence.” The alleged use of artillery and rockets, as well as direct attacks on U.N. peacekeepers, are further evidence of adequate intensity. Additionally, M23 has demonstrated that it has capacity to conduct effective operations, has successfully taken over parts of Congolese territory, and continues to issue official statements, all of which indicate that M23 is sufficiently organized to be a party to a NIAC.
If, however, Rwanda has “effective control” or “overall control” over M23, then the group’s actions can potentially be attributed to the state: armed conflict between the M23 and FARDC on the DRC’s territory would thus signify the existence of an IAC between Rwanda and DRC, rather than a NIAC between the FARDC and M23. Under the overall control test—which the ICRC, as well as recent legal jurisprudence, supports—M23’s actions could be attributable to Rwanda if the state is financing, training, equipping, and contributing to the planning of M23’s operations. In mid-June, the Congolese government accused Rwanda of “supporting, financing and arming” M23.
If an IAC does exist, such a conflict would be governed principally by the four Geneva Conventions and the First Additional Protocol (AP I), in addition to customary IHL and IHRL. If a NIAC exists between M23 and the DRC, Common Article 3 (CA3) to the four Geneva Conventions, as well as customary IHL, would apply. The Second Additional Protocol to the Geneva Conventions (AP II) also likely applies, as M23 controls substantial territory in the DRC and continues to conduct armed attacks against the Congolese military and MONUSCO.
Regardless of whether the conflict is a NIAC, IAC, or both, IHL and IHRL unambiguously prohibit belligerents from targeting civilians, and further require that belligerents take measures to protect civilians in situations of armed violence. But since the 1990s, these basic international legal principles have been regularly violated in eastern DRC. As Amnesty International explained, “Congolese and foreign armies, as well as non-state armed groups, have committed countless crimes under international law, including war crimes and crimes against humanity, and grave human rights abuses.” In a deteriorating context, it is critical that all armed actors, including DRC, Rwanda, and M23, fully comply with their legal obligations and take proactive steps to protect civilians.
The Cost of Conflict for Civilians
Contemporary history is clear: whether between states, or between states and non-state armed groups, armed conflict in eastern DRC has devastating humanitarian consequences for Congolese civilians, including massive displacement, sexual violence, extrajudicial killings, and the recruitment of child soldiers.
Particularly since the First and Second Congo Wars in the late 1990s, state and non-state armed actors alike have committed egregious violations of international law on Congolese soil, often directly targeting civilians. The UN Mapping Report documented hundreds of the most serious incidents committed between 1993 and 2003, and found that the majority of them would qualify as war crimes or crimes against humanity. But almost two decades later, little has been done to hold perpetrators accountable.
In a reigning climate of impunity, the pattern of attacks against civilians has continued. The history of M23 offers an important example. The group was created by former officers from Congrès National pour la Défense du Peuple (CNDP)—an armed group led by Congolese Tutsi commanders and supported by the Rwandan government—who claimed that the Congolese government had failed to abide by the terms of an earlier agreement, which notably mandated the integration of CNDP fighters into Congolese security forces. Soon after its creation in 2012, M23 launched a large-scale military campaign against the FARDC, shocking the international community by briefly taking over the provincial capital of Goma.
During their operations, M23 soldiers committed scores of violations of international law, including summary executions, rapes, and forced recruitment of children. Human Rights Watch found that during the group’s short occupation of Goma, “M23 spread terror through deliberate attacks on civilians and threats against those who spoke out against them.” Navi Pillay, former U.N. High Commissioner for Human Rights, notably referred to the leaders of M23 as “among the worst perpetrators of human rights violations in the DRC, or in the world for that matter.”
M23 was not alone in deliberate violence against civilians. Driven out of Goma following M23’s offensive, FARDC soldiers committed dozens of rapes, including against girls as young as 13. In the town Minova, for instance, Congolese military and police officials fleeing M23 raped over 1,000 individuals over a ten day rampage in 2012. In the decade since, little has been achieved in terms of security sector reform. Congolese government forces remain regularly responsible for over 40 percent of human rights violations recorded in the DRC each month.
The recent outbreak of violence between M23 and DRC takes place in parallel to a series of other NIACs in DRC, all of which involve the Congolese government, various non-state armed groups and, in certain cases, MONUSCO as well as the Ugandan government. While the NIACs differ from one another in certain ways, intentional attacks against civilians are a critical common feature. Over the past few months, for instance, armed groups such as the Allied Democratic Forces (ADF) and the Cooperative for Development of the Congo (CODECO) have been regularly responsible for massacres of dozens of civilians. Continued attacks have led to one of the world’s largest displacement crises: DRC is home to over 5 million internally displaced persons, many of whom have been displaced due to ongoing conflict.
Mitigating Civilian Harm
As fighting has escalated between M23 and the FARDC, over 150,000 additional civilians have already been displaced and at least 23 killed. A wider conflict between Rwanda and DRC would likely lead to even greater civilian harm and exacerbate an already disastrous humanitarian situation in eastern Congo. It is urgent that Congolese and Rwandan governments, as well as M23, take meaningful steps to de-escalate and negotiate a peaceful resolution to the ongoing crisis. Leaders of all parties to the conflict(s), and in particular military commanders, must effectively implement their protection obligations under IHL and IHRL, including refraining from targeting civilians and holding their soldiers accountable for violations.
The international community can also play an important role, including by pressuring neighboring countries to do more to ensure respect for IHL and to cease providing support to non-state armed groups that have consistently displayed blatant disregard for the protection of the civilians in DRC. International actors can also support Congolese calls for transitional justice and accountability. As Congolese Doctor Denis Mukwege, winner of the Nobel Peace Prize, stated plainly, “Decades of impunity for serious crimes continue to fuel conflicts and abuses in Congo.”
Both in DRC and across the world, civilians continue to bear the brunt of the impacts of armed conflict. It is imperative that if violence continues to escalate, all parties to the conflict(s) scrupulously adhere to their obligations under international law, particularly with respect to the protection of civilians. And it is urgent that the international community hold all parties to the conflict(s), including governments, responsible for violations of international law.
 As used in this article, and consistent with common practice, “Congo” and “Congolese” are also used to refer to the Democratic Republic of the Congo (DRC).