A DISCUSSION OF LAW AND JOURNALISM

A Cross-Border Affair

DRC

By Halina Schiffman-Shilo

In late October, I stood exactly 2.5 kilometers away from Goma.

A few friends and I had gone to Rwanda to see the countryside and visit some of the places we had read about in the Ngirabatware case we are working on.  A couple of long bus rides and two powerful genocide memorials in Butare and Kigali later, we left central Rwanda and headed north to Gisenyi. We wanted to spend some time relaxing and hiking around Lake Kivu before continuing on to Uganda.

Rwanda is aptly known as “Le Pays des Mille Collines,” the “Land of a Thousand Hills.” Everywhere I looked there were lush, explosively green hills, some terraced with banana and bean plantations and others simply untouched. Our ride to Gisenyi on winding, hilly roads, was absolutely spectacular, if a little nausea-inducing. But for the lack of dinosaurs, the landscape looked like it came straight out of Jurassic Park.

We arrived at night and, silently, took in the starlight shimmering off the waters of Lake Kivu. How could such an overwhelmingly beautiful place have been a dumping ground for so many dead bodies during the genocide?

The next morning we set out walking along a network of trails that weave through farmland on a ridge of hills. We had crystal clear views of Lake Kivu, Gisenyi town, and Goma. Along the way, we imagined what would happen if we accidentally crossed into the Democratic Republic of Congo (DRC). Though we knew that wandering into the DRC was highly unlikely, we weren’t exactly sure of where we were, so we weren’t ready to toss an accidental border crossing into the realm of impossibilities. With the help of a local farmer, we stayed safely in Rwanda and eventually found a tar road leading into town.

On the way we reached a crossroads — one sign pointed in the direction of the DRC border crossing, only 2.5 kilometers away, while another pointed in the opposite direction towards the Bralirwa brewery. We weighed our options. In the end, we decided that despite the strong travel-cred we’d accrue for venturing to the border, heading back to our lodge for a cold beer was the prudent, if less exciting, choice. And so we did.

On November 20, the M23 rebels, a group of soldiers who defected from the Congolese army in April, took control of Goma. Shots flew into Gisenyi and Rwanda returned the fire.

Another group of interns were there, in Gisenyi, when the shelling began. They had to run for cover while waiting at the bus rank to return to Kigali. Though the rebels have now retreated from Goma, news sources have reported that more than 60 people have died and at least 300,000 have been displaced due to rebel activity.

The DRC emerged from a civil war in 2003, but the eastern region surrounding Goma has remained a hot bed of militant activity and violence, in part because it is rich in natural resources. It’s widely believed that Rwanda, and to a lesser degree Uganda, are arming and supporting the M23 in the hopes of gaining control of the natural resources in the area. We interns speculated whether the M23 purposely shot into Rwanda to enable the country to invoke her right to self-defense and use of proportionate force, both enshrined in international law, to fire back into the Congo and possibly help the rebels.

With all the recent talk of arming the Syrian opposition, and recalling the 2011 UN-sanctioned action in Libya, I wondered whether it was legal for Rwanda and Uganda to support the M23. And on a more meta-level, I wondered when material international support for any insurgency was legal.

Western media wasn’t reporting on the legal issues, so with the splendor of Rwanda fresh in my mind, (and the fear of what could happen if the situation were not quickly pacified), I got down to business and did some research.

Is it legal for Rwanda and Uganda to support the M23?  The answer is an easy “no”. The arms embargo against the DRC established by the UN Security Council in 2003 has been continually reaffirmed and was recently extended until February 1, 2014. In addition, per Article 25 of the UN Charter, Security Council resolutions are binding on all member-states. Because Rwanda and Uganda are both UN member-states, they are obligated to respect the Security Council Resolution regarding arms trading with the DRC — the language of the Resolution reflects this obligation.

And when is international support for an insurgency legal? The answer to this question is a little more nuanced. Under international law, it is generally prohibited for one state to meddle in the internal affairs of another state. However, the Security Council is empowered under Chapter VII of the UN Charter to call on member states to use military force in a conflict when international peace and security is threatened. The Security Council has invoked its Chapter VII powers for both internal and international conflicts. In addition to Libya, these powers have been called upon, for example, in Bosnia and Herzegovina, Afghanistan, and Iraq.  To date, it has not done so in Syria.

In short, the Security Council needs to pass a resolution in order for military intervention, including UN peacekeeping missions, to be legal.

Though home to the largest UN peacekeeping mission on the planet, the Security Council has not passed a resolution allowing multilateral intervention in the DRC conflict, so by supporting the M23, Rwanda and Uganda are breaking the law in this regard, as well.

So, what’s the punishment for these treaty-breaching, obligation-shunning, rule-breaking states? It’s unclear – no state has taken any steps to force legal compliance. But that doesn’t mean the culprits are off the hook.

At times, politics and money speak louder than law, and over the past few months, Britain, the US, and other countries have suspended aid money to Rwanda. For the time being, Rwanda doesn’t seem fazed, but it may feel the pinch soon. Perhaps then Rwanda will take a time-out, and reassess whether its cross-border affair is worth the consequences.

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