The whole world is saddened by the tragic events taking place in the east of the Democratic Republic of Congo (DRC). These new tensions are likely to further destabilize the region of the Great Lakes, already plagued by attacks from other armed groups. In a tweet, the Secretary General of the United Nations denounced this new attack of the M23 in Congo. Indeed, on 29 October 2022, the M23 rebels attacked the eastern part of the DRC, more precisely, in the territory of Rutshuru in the province of North Kivu. This offensive led to thousands of people’s massive displacement to the country’s center and to Uganda. Despite the fact that the DRC and Rwanda accuse each other, the loss of civilian lives is deplorable. Indeed, the Kinshasa government and some international organizations accuse Rwanda of supporting the M23 militia and other armed groups operating in the Great Lakes region. In a TV statement, President Felix Tshisekedi described the attack as an « aggression » against his country by Rwanda. The use of this term could well have legal consequences under international law. The government in Kigali denies any allegation that the Rwandan authorities are supporting the rebel group. Therefore, this article aims to question whether the attack by M23 members on 29 October 2022 may constitute aggression attributable to Rwanda and whether the DRC may exercise its right to self-defense under Article 51 of the UN Charter. It is important to mention that the day after the M23 attack, a ceasefire agreement was signed between Rwanda and Congo in which the parties demanded an immediate end to the violence.
Since 2004, when an insurgency broke out in South Kivu in the Congolese Republic, it has spread to the North. It is important to mention that the members of the M23 are former dissident officers from the pro-Rwandan ex-rebellion “National Congress for the Defence of the People”, better known by its french acronym (CNDP). For more than a decade, several attacks by this rebel group have been recorded, notably in 2012, 2021, August 2022 and now October 2022. Even if the reasons for the repeated attacks by the non-state group remain unknown, there is every reason to believe that it is an attempt to occupy part of Congolese territory, as is the case in Syria and Iraq, or in Nigeria, where ISIS and the Islamic State of West Africa respectively occupy part of the territories of these different states. One of the reasons for these incursions may be economic, as the eastern part of the DRC is a zone densely populated with raw materials from its subsoil.
The attack of 29 October 2022: an attack by whom?
The International Law Commission’s (ILC) 2001 draft articles on the international responsibility of States are clear. Indeed, Article 1 states that « Every international act of a State entails its responsibility ». These may be carried out by its organs in accordance with Article 4 of the ILC draft. Furthermore, Article 3g of UNGA Resolution 3314 defines aggression as « the sending by or on behalf of a State of armed bands or groups, irregular forces or mercenaries to engage in acts of armed force against another State of such gravity as to amount to the acts enumerated above, or to engage substantially in such acts”. A condition is set out in the text of the resolution that the State must be substantially engaged in carrying out the acts of the non-State group. This definition was established in the Nicaragua Military and Paramilitary Activities case. In this case the Court uses the strict test of effective control to establish attribution. It should be noted that the standard degree of attribution for imputing armed acts of a non-state actor to a state is based on Article 8 of the ILC Draft Articles which specifies that the State is only responsible for the acts of individuals if they acted under its instructions, directives control. It should be recalled that after the attacks of 11 September 2001 the effective control test has been criticized in state practice for having a low attribution threshold. However, in the Tadic case, the International Criminal Tribunal for the former Yugoslavia (ICTY) established the broader test of overall control. If the test of control concerns a material involvement of the State in carrying out the attack by a non-state actor, the criterion of total dependence adopted by the Court in the case of the Nicaragua military and paramilitary activities, proposes a criterion of control at a higher level because in this case, it is a question of total State subordination to a non-State actor. Although the Congolese government in attributing M23’s actions to Rwanda presents no evidence to support their allegations, contenting themselves with public statements, the UN experts’ report on the military intervention in eastern Congo is a relevant document for analysis today. The panel claims to have « strong evidence » of Rwandan troops’ involvement in military operations in eastern DRC between November 2021 and July 2022. This report by the group of experts is justified by the intensification of M23 attacks since November 2021 resulting in several civilian causalities. Two levels of Rwandan forces’ involvement will be analyzed here.
In the first instance, the fact that the Rwandan forces were fighting alongside the M23 group cannot engage their responsibility because the threshold for complete dependence or effective or overall control tests has not been reached because everything suggests that the M23 group would act autonomously from the neighboring States of the DRC.
Secondly, the report notes that the Rwandan armed forces supplied arms, ammunition and uniforms to the M23 rebels. While in the first case the M23 attacks can be attributed to the Rwandan state, in the second case it is difficult to establish the responsibility of the Rwandan state in terms of the criterion of effective or overall control of the M23 militia. Indeed, it is difficult to establish close links between the M23 and the government in Kigali to such an extent that the former acted under the total dependence or authority or on behalf of the latter. Therefore, article 3g of GA resolution 3314 cannot prevail in this case or article 8 of the ILC’s draft articles. This was the reasoning of the Court in the case of military and paramilitary activities in Nicaragua.
Can the DRC exercise its right of self-defense against Rwanda?
The evolution of the contemporary world requires a rereading of the jus ad bellum, in extenso, of Article 51 of the UN Charter, which states that « Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations until the Security Council has taken all measures to maintain international peace and security ». It is true that aggression committed by a State through a non-State actor constitutes indirect armed aggression. In this case it is the involvement of the state that is covered by Article 51 of the UN Charter. As we have seen above, the acts of a private group can only constitute aggression under Article 51 if they are attributable to the State. This section discusses the threshold of gravity of the acts of the M23 as constituting armed aggression and the possibility of the DRC’s use of force in self-defense. The ICJ’s reasoning suggests that an armed attack giving rise to the right of self-defense must take into account its gravity, scale and effects. There is no doubt that the 29 October attacks constitute aggression under international law. In the case of the Nicaraguan paramilitary activities as well as in the case of Oil Platforms, the Court distinguishes between the most serious use of force and less brutal modalities. Thus, the incursions of the M23 into the Rutshuru area could constitute an invasion or occupation of foreign territory; such an attack constitutes a serious form of use of force and therefore an aggression under international law. In the context of self-defense, States are obliged to inform the Security Council of the aggression they have suffered. However, the Congolese president was content with just a televised statement, and no government source indicates that a letter was sent to the Security Council.
In view of the foregoing, it must be said that this is a case of self-defense against a state actor based on the territory of another state. Indeed, it is the theory of Unwilling or Unable state defended by certain jurists (here) which states that a State A victim of an attack by non-State actor Y based on the territory of a State B can react in self-defense against this latter while proving that the latter is Unwilling or Unable to fight against this group on its territory. In this case, the Congo accuses Rwanda of supporting the M23 rebels because it does not want to fight them on its territory. However, this theory is still much debated among jurists and cannot reflect an international custom because, on the one hand, only a few States have invoked this doctrine, particularly in the case of military intervention in Syria, and on the other hand the doctrine has not yet reached the threshold of a binding rule within States.
The armed attack by the M23 in the DRC is indicative of the shortcomings of the rules governing the use of force. A military offensive against a non-State actor established on the territory of another State on the basis of self-defense contained in Article 51 of the UN Charter is illegal because current international law only allows the use of force by State against another State. In addition, such military action would violate the principle of the prohibition of force in international relations as well as the sovereignty and territorial integrity of Rwanda. This reinforces the need to apply the rules of IHL and Jus ad bellum in order to find peaceful and lasting solutions. It is also a question of reinforcing regional collective defense mechanisms in the light of cooperation between States in order to combat armed groups in the Great Lakes region.