The United Nations' Mapping Exercise Report and Uganda's involvement in the Democratic Republic of Congo conflict from 1996 to 2003

Phillip Apuuli Kasaija

Senior Lecturer, Department of Political Science, Makerere University, Kampala, Uganda

SUMMARY

The United Nations' 'DRC Mapping Exercise Report - Mapping of the most serious human rights and international humanitarian law violations committed in the DRC between 1993-2003 (August 2010)' was finally published in October 2010, albeit with clarifications, after strong objections from the countries that were adversely mentioned in it, including from Uganda. The article discusses the allegations levelled against Uganda in light of findings by other institutions, namely, the African Commission on Human and Peoples' Rights, which in 2003 found Uganda in violation of provisions of the African Charter on Human and Peoples' Rights, and the International Court of justice, which in 2005 found Uganda responsible for violations of the law of belligerent occupation, human rights and the international law of armed conflict. The key argument of the paper is that, instead of the government of Uganda dismissing the report, it should institute measures to investigate and prosecute its agents who committed crimes during this conflict. As well, instead of dismissing the report as untrue, the Ugandan government should have put the record straight by responding to the allegations.

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* BA (Hons) (Makerere), LLM Dhil (Sussex); kasaijap@yahoo.com/pkasaija@ss.mak. ac.ug. I would like to thank the African Human Rights Law journal's anonymous reviewers who made very constructive comments on the draft. This article was written when I was a British Academy Scholar at the Africa Studies Centre, University of Oxford (2010). I would therefore like to acknowledge the financial support extended to me by the British Academy, and the fantastic working environment provided by the staff at the ASC. Special thanks go to Dr David Pratten, Ms Wanja Knighton and Ms Sarah Forrest.
1 See Uganda's position on the draft DRC Mapping Exercise Report, 27 September 2010 (on file with author) http://www.ohchr.org/Documents/Countries/ZR/DRC_Report_Comments_Uganda.pdf (accessed 23 October 2011).
2 As above.
3 Upon attaining independence, the country was called Congo but, on 27 October 1971, President Mobutu changed its name to Zaïre.
4 In 2003, Burundi, Rwanda and Uganda were found by the African Commission on Human and Peoples' Rights to have violated the provisions of the African Charter on Human and Peoples' Rights.
5 According to G Prunier From genocide to continental war: The 'Congolese' conflict and the crisis of continental Africa (2009) 67-71,         [ Links ] the basic cause that led the Rwan-dese leadership to attack Zaïre in September 1996 was the presence of the large, partially-militarised refugee camps on its borders. But there was also a broader view, which was a systematic trans-African plan to overthrow the Mobutu regime in Zaïre. Already in November 1994, in the wake of the Rwandan genocide, President Museveni had called a meeting in Kampala of all the 'serious' enemies of Mobutu to discuss the idea of overthrowing him. The conclusion had been that the time was not yet ripe. In early 1995, former President Julius Nyerere had re-launched the idea, developing contacts with a number of African heads of state with the purpose of cleaning up what they looked on as the shame of Africa. Rwanda, because of the refugee question, was of course to be the entry point and the spearhead of the mission. Prunier also recounts an incident where former President Bizimungu on 3 October 1996 addressed the press and presented a map of Rwanda purporting to show large areas of North Kivu and smaller parts of South Kivu in Zaïre, as having been tributaries of the former Rwandese monarchy. Bizimungu had averred that if Zaïre gives back its Rwandese population, then it should also give back the land on which it (the population) lives. Prunier clearly insinuates that Rwanda's attack on Zaïre could also have been motivated by territory acquisition ambitions.
6 G Nzongola-Ntalaja The Congo: From Leopold to Kabila: A people's history (2002) 135.         [ Links ]
7 International Crisis Group 'Congo at war: A briefing of the internal and external players in the Central African conflict' Africa Report (1998) 14 http://www.crisisgroup.org/en/regions/africa/central-africa/dr-congo/002-congo-at-war-a-brieflng-of-the-internal-and-external-players-in-the-central-african-conflict.aspx (accessed 23 November 2011).         [ Links ] See also G Nzongola-Ntalaja From Zaire to the Democratic Republic of Congo (2004) 13,         [ Links ] observing that the Lemera Protocol of 18 October 1996 established the AFDL as an alliance of four groups.
8 PA Kasaija 'Rebels and militias in resource conflict in the Eastern Democratic Republic of Congo (DRC)' in W Okumu & A Ikelegbe (eds) Rebels, militias and Islamist militants: Human insecurity and state crises in Africa (2010) 187.         [ Links ]
9 International Crisis Group 'Democratic Republic of Congo: An analysis of the agreement and prospects for peace' Africa Report 5 (1999) 1 http://www.crisisgroup.org/en/regions/africa/central-africa/dr-congo/005-democratic-republic-of-congo-an-analysis-of-the-agreement-and-prospects-for-peace.aspx (accessed 23 November 2011).         [ Links ]
10 GS Gordon 'An African Marshall Plan: Changing USA policy to promote the rule of law and prevent mass atrocity in the DRC' (2009) 32 Fordham International Law journal 1371.         [ Links ]
11 PA Kasaija 'International law and Uganda's involvement in the DRC conflict' (2001 /2002) 10 University of Miami International and Comparative Law Review 75.         [ Links ]
12 G Nzongola-Ntalaja 'The role of intellectuals in the struggle for democracy, peace and reconstruction in Africa' (1997) 2 Africa journal of Political Science 2.         [ Links ]
13 Prunier (n 5 above) 285. See also International Crisis Group 'Africa's seven nation war' Africa Report 4 (1999) http://www.crisisgroup.org/en/regions/africa/central-africa/dr-congo/004-africas-seven-nation-war.aspx (accessed 23 November 2011).         [ Links ]
14 The eight were Burundi, Rwanda and Uganda, on the side of the rebels, and Angola, Chad, DRC, Namibia and Zimbabwe on the side of the Kabila government.
15 Nzongola-Ntalaja (n 7 above) 16.
16 As above. A series of mortality surveys, conducted by the international non-governmental organisation, the International Rescue Committee (IRC) between 1998 and 2002, showed that an estimated 3,3 million people had died as a consequence of the war. See IRC 'Mortality in the Democratic Republic of Congo: Results from a nationwide survey' (April-July 2004) http://www.rescue.org/sites/default/files/resource-file/DRC_MortalitySurvey2004_Final_9Dec04.pdf (accessed 20 October 2011).         [ Links ]
17 According to DRC's ambassador to the United Nations, Kabila took this decision 'after consultations with his Rwandan and Ugandan counterparts'.
18 FZ Ntoubandi 'The Congo/Uganda case: A comment on the main legal issues' (2007) 7 African Human Rights Law journal 163.         [ Links ]
19 Kasaija (n 11 above) 77.
20 As above.
21 Kasaija (n 11 above) 76.
22 As above.
23 As above. The clearest rationalisation as to why Uganda got entangled in the DRC was spelled out in detail by the Minister of State for Foreign Affairs in charge of Regional Co-operation, Amama Mbabazi, while addressing the 53rd General Assembly Session of the UN in New York. The reasons for Uganda's involvement in the DRC were presented in terms of both external and internal dimensions. The external dimensions were spelled out as: attacks by ADF rebels on Uganda from the DRC, from the Mobutu regime through to the present Kabila regime, necessitating self-defence and hot pursuit by Uganda into the DRC; an understanding between the Kabila regime and the Ugandan regime to collaborate in the task of flushing out of Ugandan rebels from the DRC; collusion between the DRC and the Khartoum regime to provide operational bases and material support to the rebels in the DRC, as well as to avail to the Khartoum regime the use of the DRC territory as a launching pad for attacks on Uganda; and the (unexpected) involvement of other new actors (Namibia, Angola, Zimbabwe and Chad) which acted as a catalyst to increase the level of Uganda's own intervention. The internal dimensions were spelled out as: the breakout of the rebellion of 2 August 1998 in the DRC, arising from the alienation of Congolese political actors excluded from the narrowly-based and sectarian regime established by Kabila after his ascent to power in 1997; the imminent threat of another genocide in the region, arising from Kabila's open support to the Rwandese Interahamwe and ex-FAR or Rwandese soldiers of the late Habyarimana regime on the territory of the DRC; Uganda's obligation (which should, incidentally, be the obligation of the rest of the international community, as well) to stop this threatening crime against humanity; and the need to look at the idea of the sacrosanctity of national sovereignty and of territorial borders more critically in circumstances involving such grave threats to human life as those prevailing in the DRC and in the Sudan.
24 F Soudan 'Justice: L'Affaire Bemba' jeune Afrique 1-7 June 2008 26.         [ Links ]
25 PA Kasaija 'The politics of conflict resolution in the Democratic Republic of Congo (DRC): The inter-Congolese dialogue process' (2004) 4 African journal on Conflict Resolution 75.         [ Links ]
26 Judicial Commission of Inquiry into Allegations of Illegal Exploitation of Natural Resources and Other Forms of Wealth in the DRC, Final Report (S/2003/1027) (2002) 71.         [ Links ]
27 Also called RCD-Kisangani. The different permutations of RCD emerged after the main RCD broke up in May 1999.
28 For a comprehensive list of the rebel movements and their state supporters, see Kasaija (n 8 above).
29 Eg UN Security Council Resolution 1304 (2000), 16 June 2000 S/RES/1304(2000), para 4 demanded that 'Uganda ... which ha[s] violated the sovereignty and territorial integrity of the Democratic Republic of the Congo, withdraw all [its] forces from the territory of the Democratic Republic of the Congo without further delay .'; UN Security Council Resolution 1341 (2001), 22 February 2001, S/RES/1341(2001), para 2 demanded that 'Ugandan . forces . withdraw from the territory of the Democratic Republic of the Congo
30 Agreement between the governments of DRC and the Republic of Uganda on the withdrawal of Ugandan troops from the DRC, co-operation and normalisation of relations between two countries (6 September 2002) http://www.iss.co.za/AF/pro-files/drcongo/cdreader/bin/5luanda.pdf (accessed 30 September 2010).
31 Office of the UN High Commissioner for Human Rights 'Report of the Mapping Exercise documenting the most serious violations of human rights and international humanitarian law committed within the territory of the Democratic Republic of the Congo between March 1993 and June 2003' (August 2010) (Mapping Report), para 271.
32 Para 285 Mapping Report (n 31 above).
33 Para 290 Mapping Report.
34 Para 290 Mapping Report.
35 Paras 330, 346, 347, 348, 349, 361, 362, 363, 365, 366 & 370 Mapping Report.
36 Para 347 Mapping Report.
37 Para 349 Mapping Report.
38 Paras 361 & 363 Mapping Report.
39 Para 363 Mapping Report.
40 As above.
41 Para 385 Mapping Report.
42 Para 402 Mapping Report.
43 Paras 402, 408, 421, 433 & 444 Mapping Report.
44 Para 408 Mapping Report.
45 Para 409 Mapping Report.
46 Para 421 Mapping Report.
47 Para 178 Mapping Report.
48 Mapping Report 70.
49 As above.
50 Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda) ICJ (19 December 2005) (2005) ICJ Reports 168.
51 UN Mission in the DRC, Child Protection Section 'La justice et le recrutement et l'utilisation d'enfants dans des forces et groupes armés en RDC' (2005) http://www. unhcr.org/refworld/pdfid/46caaafcd.pdf (accessed 2 October 2010).
52 Para 285 Mapping Report (n 31 above).
53 Para 429 Mapping Report.
54 Para 697 Mapping Report.
55 Para 698 Mapping Report.
56 Para 210 Mapping Report.
57 PA Kasaija 'The implications of the arrest of Jean Pierre Bemba by the International Criminal Court' (2008) 14 East African journal of Peace and Human Rights 259.
58 As above.
59 Arts 8(2)(b)(xxvi) & 8(2)(e)(vii) Rome Statute of the International Criminal Court, A/ CONF 183/9 (1998).
60 Art 22(2) African Charter on the Rights and Welfare of the Child, OAU Doc CAB/ LEG/24.9/49 (1990).
61 Para 330 Mapping Report (n 31 above).
62 As above.
63 Para 347 Mapping Report.
64 Paras 330, 347, 348 & 349 Mapping Report.
65 Armed Activities on the Territory of the Congo case (n 50 above) para 208.
66 As above.
67 See generally Human Rights Watch 'Ituri: Covered in blood - Ethnically-targeted violence in North-Eastern Congo' (July 2003).
68 Paras 349 & 444 Mapping Report.
69 Para 402 Mapping Report.
70 Armed Activities on the Territory of the Congo case (n 50 above) para 178. The cited provision is art 43 of Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907, which states: 'The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.'
71 Armed Activities on the Territory of the Congo case (n 50 above) para 178.
72 Armed Activities on the Territory of the Congo case (n 50 above) para 211.
73 Arts 7(1)(f) & (k), 8(2)(a)(ii) & (iii), 8(2)(b)(xxi), 8(2)(c)(i) & (ii).
74 Para 583 Mapping Report.
75 Para 330 Mapping Report.
76 Para 405 Mapping Report.
77 Para 443 Mapping Report.
78 Para 408 Mapping Report.
79 See generally Human Rights Watch (n 67 above).
80 Paras 605, 606 & 607 Mapping Report.
81 Para 179 Mapping Report.
82 Eg, see arts 8(b)(2) & 8(e)(2) of the Rome Statute.
83 Eg, see Prosecutor v jean Paul Akayesu judgment, Case ICTR-96-4-T, 2 September 1998.
84 International Crisis Group 'Uganda and Rwanda: Friends of enemies?' Africa Report 14 (2000) 7 http://www.crisisgroup.org/en/regions/africa/central-africa/rwanda/014-uganda-and-rwanda-friends-or-enemies.aspx (accessed 23 November 2011).
85 Para 361 Mapping Report.
86 Para 362 Mapping Report.
87 Para 363 Mapping Report.
88 International Crisis Group (n 84 above) 8.
89 Kasaija, (n 57 above) 250-251. See also n 84 above, 8.
90 Of the RCD leadership, Wamba dia Wamba accepted Uganda's strategy, while Emile Ilunga, Bizima Karaha, Moise Nyarugabo, Lunda Bululu and Alexis Tambwe agreed with Rwanda.
91 International Crisis Group (n 84 above) 14.
92 n 84 above, 15.
93 As above.
94 UN Security Council Resolution 1304 (2000), 16 June 2000, S/RES/1304(2000), Preamble para 8.
95 UN Security Council, Third Report of the Secretary-General on the United Nations Organisation Mission in the Democratic Republic of the Congo (MONUC), S/2000/566, 12 June 2000, para 79.
96 Armed Activities on the Territory of the Congo case (n 50 above) paras 196-204.
97 Armed Activities on the Territory of the Congo case (n 50 above) para 207.
98 Armed Activities on the Territory of the Congo case (n 50 above) para 208.
99 As above.
100 As above.
101 Para 732 Mapping Report.
102 See generally Addendum to the Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the DRC (S/2001/1072) 13 November 2001.
103 See generally Kasaija (n 8 above).
104 Para 748 Mapping Report.
105 Para 402 Mapping Report.
106 Para 748 Mapping Report.
107 Para 408 Mapping Report.
108 Para 769 Mapping Report.
109 Para 768 Mapping Report.
110 As above.
111 The UN Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo (UN Panel) was set up by the Security Council in June 2000.
112 The Commission was established under Legal Notice 5 of the Uganda Gazette of 25 May 2001 issued by the Minister of Foreign Affairs. The Commission was composed of Justice David Porter (Chairperson); members Justice JP Berko and Mr John Rwam-buya; Mr Bisereko Kyomuhendo (Secretary); and Alan Shonubi (Lead Counsel).
113 Cited in Armed Activities on the Territory of the Congo case (n 50 above) para 234.
114 Brigadier Kazini was killed by his girlfriend in Kampala in November 2009.
115 Armed Activities on the Territory of the Congo case (n 50 above) para 242.
116 Armed Activities on the Territory of the Congo case (n 50 above) para 246.
117 Armed Activities on the Territory of the Congo case (n 50 above) para 250.
118 Under general rules of international law, the Court ruled that 'any violation by a state of its international obligation generates state responsibility and, consequently, a duty to make reparation'. The Court, however, enjoined DRC and Uganda to decide on the nature, amount and the form of reparation since DRC was also found to have violated international law regarding the inviolability of diplomatic missions and personnel a propos Uganda's mission in Kinshasa; Armed Activities on the Territory of the Congo case (n 50 above) para 345 (5, 6, 13, 14). The DRC asked for billion, which has been a subject of discussion between the two countries.
119 'UN report pins Uganda on Congo' Daily Monitor 1 October 2010 http://www.monitor.co.ug/News/National/-/688334/1021752/-/cn40clz/-/index.html (accessed 23 November 2011).
120 As above.
121 'Kampala, Kigali "ate" in old world order, eating in new one too' Daily Monitor 6 October 2010 http://www.monitor.co.ug/OpEd/OpEdColumnists/CharlesOnyan-goObbo/-/878504/1026812/-/glcoe9/-/index.html (accessed 6 October 2010).
122 Their full responses can be found at http://www.ohchr.org/EN/Countries/AfricaRe-gion/Pages/ RDCProjectMapping.aspx (accessed 23 October 2011).
123 'UN backs down under Uganda, Rwanda pressure' The Observer 3 October 2010 http://www.observer.ug/index.php?option=com_content&task=view&id=10386&Itemid=59 (accessed 5 October 2010).
124 'Somalia: Uganda vows to remove their soldiers' Garowe Online 3 October 2010 http://www.garoweonline.com/artman2/publish/Somalia_27/Uganda_Vows_to_remove_their_soldiers_in_Somalia_printer.shtml (accessed 5 October 2010).
125 'United Nations blocks change of AMISOM mandate' Daily Monitor 28 July 2010 http://www.monitor.co.ug/News/National/-/688334/966154/-/x2o9ru/-/index.html (accessed 5 October 2010).
126 'Al-shabab terrorists lose key sites' The New Vision 4 October 2010 http://www.newvision.co.ug/D/8/12/734067 (accessed 5 October 2010).
127 'UN Publish report as Uganda, Rwanda & Burundi deny accusation' Africa News 2 October 2010 available at http://www.africanews.com/site/list_message/30746 (accessed 30 September 2010).
128 'Peacekeepers on standby for pull-out - Mushikiwabo' The New Times 1 September 2010 http://allafrica.com/stories/201009010009.html (accessed 5 October 2010).
129 'Ban arrives in Rwanda to discuss upcoming report on rights violations' UN News Service 7 September 2010 http://www.un.org/apps/news/story.asp?NewsID=35852&Cr=democratic&Cr1=congo (accessed 5 October 2010).
130 According to the anonymous reviewer of this article, former British Prime Minister Tony Blair put pressure on President Kagame to change his mind on withdrawing Rwandan troops from UN peacekeeping.
131 Personal communication with Levi Ochieng by e-mail, 2 October 2010.
132 See 'Museveni and child soldiers' (video) http://www.youtube.com/watch?v=uplTVcXw_Gk (accessed 10 October 2010).
133 See eg, 'How UPDF ghosts were created' The Independent 10 September 2008 http://www.independent.co.ug/reports/intelligence-file/169-how-updf-ghosts-were-created (accessed 23 November 2011).
134 C Onyango-Obbo in 'Kampala, Kigali "ate" in old world order, eating in new one too' (n 121) above.
135 F Reyntjens 'The UN report on Congo's atrocities: The end of impunity?' International justice Tribune 5 October 2010 http://www.rnw.nl/international-justice/article/un-report-congos-atrocities-end-impunity (accessed 6 October 2010).