THE WAR IN CONGO: TRANSNATIONAL CONFLICT NETWORKS AND THE FAILURE OF INTERNATIONALISM Laurence Juma Cite as: Laurence Juma, The War in Congo: Transnational Conflict Networks and the Failure of Internationalism, 10 GONZ. J. INT‘L. L. 2 (2006), available at http://www.gonzagajil.org. I. INTRODUCTION .................................................................................. 98 PART ONE II. TRANSNATIONAL CONFLICT NETWORKS AND THE BUSINESS OF WAR ................................................................................................ 102 A. Lifting the Veil of Sovereignty ............................................... 104 B Transnational Conflict Networks: What are They? ................. 106 C. The Reach of International Law .............................................. 108 1. Curbing Excesses of Non-State Entities ............................ 108 2. The Human Rights Dimension .......................................... 110 3. The Moral Issue................................................................. 113 PART TWO III. INTERNATIONALISM AND THE ‗FORMATION‘ OF THE CONGO NATION STATE ................................................................................ 114 A. The Creation of Congo Free State ........................................... 115 1. The Berlin Conference and the Legitimization of Colonial Adventurism ....................................................... 117 2. The Arab War of 1892-1893 ............................................. 118 B. Leopoldian Congo and the African Holocaust ........................ 120 C. Katanga: The Jewel on the Crown .......................................... 122 IV. CONGO‘S FIRST REPUBLIC AND THE GUISE OF FREEDOM ............... 124 A. Political Party Activity and the Path to ‗Independence‘.......... 125 1. Mouvement National Congolais (MNC) ........................... 126 2. Moishe Tshombe and Conakat .......................................... 127 Lecturer, Faculty of Law, National University of Lesotho; M.A., University of Notre Dame; LL.M., University of Pennsylvania; LLB., University of Nairobi. 97 98 Gonzaga Journal of International Law [Vol. 10:2 B. The Assassination of Lumumba: The Stifling of a Nationalist Cause .................................................................... 129 C. Mobutu‘s Zaire and the Collapse of a Nation ......................... 130 V. THE WARS OF ‗SECOND‘ LIBERATION ............................................ 133 A. Reclaiming Zaire and the ADFL Factor .................................. 134 1. Regional Dynamics ........................................................... 135 2. A Fractured Mobutu Regime............................................. 138 3. The Question of Wealth Control ....................................... 139 4. The War and the Ineffective Peace Process ...................... 142 B. The Kabila Regime and Botched Expectations ....................... 144 C. Asserting Sovereignty and Territorial Integrity ...................... 147 1. Alliance of Friendly Nations ............................................. 148 2. Peace Process .................................................................... 150 a. The Lusaka Peace Accord of July 1999 ...................... 151 b. The Sun City Agreement April 2002: Towards A Transitional Government ............................................ 153 c. The Pretoria Accord July 2002.................................... 154 d. The Gbadolite Agreement December 2002 ................. 155 3. Legal Measures ................................................................. 156 PART THREE VI. LEGACY OF THE WAR AND THE MURKY FACE OF INTERNATIONALISM ........................................................................ 157 A. Ethnicity and the Culture of War Phenomenon....................... 159 B. The Influx of Light Weapons .................................................. 160 VI. CONCLUSION ................................................................................... 162 I. INTRODUCTION Until recently, scholarship on transnational networks that shape the patterns of internal wars in Africa has been scant.1 While resource exploitation, ethnicity and competing claims to political power constitute the main thrust of the discourse on African conflicts, the idea that these factors could be indicative of the ‗economic and political complexes‘ that links local conflicts to global network of trade, ideas and power often eludes attention. The reason might be historical just as it is political. The rise of 1. The work of Carolyn Nordstrom in this field is remarkable in many ways, but what will probably remain as her greatest contribution is the illustration of the fact that war is neither static nor a local phenomenon. Her recent book, SHADOWS OF WAR: VIOLENCE POWER AND INTERNATIONAL PROFITEERING IN THE TWENTY-FIRST CENTURY (2004), captures the political complexity of war and its interconnectedness to the world of international commerce through businessmen, profiteers, black market operators, and the multi-trillion-dollar international financial networks. Fall 2006] The War in Congo 99 capitalism after the First World War, and the concomitant support by the western world of the major African polities during the cold war, produced in its wake a bunch of institutions faithful to the neo-liberal agenda. And when capitalism triumphed over communism in the 1990s, the neo-liberal agenda became widespread. Its influence, spread through the rhetoric of human rights, democracy, and free trade, encouraged revolts and uprising against systems that were opposed to its hegemony. So entrenched did it become that for a long time, its epistemic strongholds in the western hemisphere and their surrogates in the south were unwilling to examine the contradictions of the ideological frame in which its agenda was carried even when the same was delivering underdevelopment, poverty, and conflict to the poorer nations.2 The disintegration of the Soviet Union and the emergence of the United States of America as the sole superpower drove into maturation the neoliberal orthodoxy consistent with the ideas of deregulation, privatization of enterprises and the limitation of governmental control. World attention is now drawn to the systems of corporate globalization and free trade that have fashioned a new understanding of a ‗modern empire‘—not as a single powerful entity but as a global system of interlocking states, international institutions and multinational corporations.3 With the divergence of power and the diminution of the United Nation‘s role as the sole source of international legitimacy, especially after its poor performance in Rwanda, Bosnia, Croatia and even Somali, these ideas have become the benchmark for limiting participation of states in international politics.4 The ‗new world order‘ envisioned by George Bush or ‗assertive multilateralism‘ of Bill Clinton resonate these ideas and implies both political acquiescence from the holders of power and the placement of normative architecture that allows for their implementation.5 2. The thesis that connects third world underdevelopment to the growth of capitalism is well canvassed in Walter Rodney‘s, HOW EUROPE UNDERDEVELOPED AFRICA. Early dependency theorists, Andre Gunder Frank and Paul Baran, had shown how developing countries were caught in a cycle of dependence to the international capital, and from which they would never disentangle. See generally ANDRE GUNDER FRANK, CAPITALISM AND UNDERDEVELOPMENT IN LATIN AMERICA: HISTORICAL STUDIES OF CHILE AND BRAZIl 3 (1969); PAUL BARAN, POLITICAL ECONOMY OF GROWTH 231 (1967). 3. See DAVID HELD ET AL., GLOBAL TRANSFORMATION, 282 (1999). 4. Indeed when the UN authorized the powerful nations to take charge of its operations in these countries, the inkling about it loosing control seemed prevalent. In some quarters, the view that great nations were curving out ‗spheres of influence‘, reminiscent of the 1883 Berlin conference that partitioned Africa, were proclaimed. The editors of the New York Times commented, ―Having taken its lumps trying to be a world Police force, the UN has now fallen into the unhealthy habit of licensing great power sphere of influence.‖ See A UN License to Invade Haiti, N.Y.Times, Aug. 2, 1994, at A20. 5. See generally RICHARD FALK, World Orders, Old and New, CURRENT HISTORY 29 (Jan. 1999). 100 Gonzaga Journal of International Law [Vol. 10:2 The neo-liberal agenda has infused world politics with a sense of multilateralism which on the surface appears to pay homage to democracy, human rights, and other liberal theories, but on the inside remains comfortable with ‗global networks‘ that feed systems of resource exploitation, and political mismanagement in poor countries. Through bilateral arrangements, multilateral financial assistance programs, and international legal order, the neo-liberal agenda has taken an international dimension that entraps poorer nations in a systemic dance to which they have no control. The extent to which nations have disintegrated, regions flared up in war, genocide, ethnic cleansing and all the horrors of mankind have become widespread, affirms the failure of the neo-liberal enterprise. The optimism of neo-liberal theorists that the world would be a better place after the cold war has badly floundered. The reason, in my view, summarizes the thesis of this article. The forces of liberalization, and the trends by which globalization has become an inherent feature of international commerce and politics, fostered the evolution of transnational networks that survive on ruthless extraction of resources from weak nations. These networks have encumbered the rise of nationalism by localizing their pursuit for wealth and providing material support to groups willing to challenge the authority of the state. Thus, the study of the nexus between conflicts and transnational institutions borne out of the so-called ‗new world order‘ provides a necessary point of departure in the exploration of Africa‘s endemic disorder. Local conflicts, according to a one scholar, ―involve a myriad of transnational connections so that the distinction between internal and external between aggression (attacks from outside) and repression (attacks from inside the country) or even between local and global are difficult to sustain.‖6 Thus, internal wars are not really internal in nature. They are as much a product of international linkages as trade, ideology and culture. Nordstrom observes, We may speak of internal wars but they are set in vast global arenas. We may speak of contests within or between states, but a considerable part of war and post conflict development takes place along extra-state lines. War and peace unfold as much according to these extra-state realities as they do according to state based ones.7 6. See MARY KALDOR, NEW AND OLD WARS: ORGANIZED VIOLENCE IN A GLOBAL ERA 2 (1999). 7. See CAROLYN NORDSTROM, Out of the Shadows, in INTERVENTION AND TRANSNATIONALISM IN AFRICA 216, 217 (Thomas Callaghy et al. eds., 2001) [hereinafter INTERVENTION AND TRANSNATIONALISM]. Fall 2006] The War in Congo 101 In Africa where most states are weak and impoverished, there has emerged a formidable network of actors that operates independently of the government and maintains close links to the global markets, and other transnational monetary institutions. These actors have forged transnational networks that propel the war agenda. They, according to one writer, Cross territorial boundaries monetary trade zones link diasporic transnational non-governmental and ethnic communities include international and regional organizations and have a global reach. Some like the small arms trade networks are violent and clandestine while others such as the transnational network of human rights activists are more transparent but all are social structures with independent components.8 It is in this context that this article discusses the war in Congo. My contention is that the civil war in Congo can only be understood by examining the array of international factors and actors, their interconnectedness with local agents and their symbiotic modes of operations. The linkages between these actors cannot be viewed in isolation to the overall structure of the international system—what I call ―internationalism.‖ Local profiteers, gunrunners and smugglers can only survive if they have a linkage to the international capital. Thus, the United Nations, powerful member states and their predatory corporations, rebel or military outfits, corrupt government officials, down to the individual dealer in the streets of some remote African town, are all part of a system that wittingly or unwittingly support violence. My argument is that international law is part of this system, too, or at least improperly positioned to deal with this murky face of internationalism. Ultimately, the point I propose to make in this article is that resolving African conflicts will require a complete reordering of the international system because the current arrangement is certainly compromised. This article is in three parts. The first part discusses the conceptual issues that frame my main argument on the relationship between transnational forces and conflict in Africa and particularly in the Congo. The second part is an in depth analysis of the paradigmatic influences that these factors have imparted on Congo‘s political life from colonial days to the present. The analysis takes the form of a historical narrative that highlights events within the trajectory of changing phases of internationalism that impinged on Congo‘s efforts to develop a cohesive nationalist government. The conflict that began in 1996 and the Kabila factor are presented as consequences of these paradigmatic influences. The 8. See Tatiana Carayannis, The Complex Wars of the Congo: Towards a New Analytical Approach, 38 JOURNAL OF ASIAN & AFRICAN STUDIES 232, 236 (2003). 102 Gonzaga Journal of International Law [Vol. 10:2 third part sums up the discussion by suggesting some steps which the international legal system could take to stymie activities of international networks that propel war and conflict. It also analyzes some of the tragedies that the conflict has bequeathed to the people of Congo. In whole, this article is about the failure of the international system; the limits of international law on curbing transnational activity that promote war; and the immorality of those who propagate the profit motive at the expense of humanity, however defined. PART ONE II. TRANSNATIONAL CONFLICT NETWORKS AND THE BUSINESS OF WAR For over two centuries, conflicts in Africa have depicted a complex interconnectedness of the local and the international actors through trade, military adventurism and ideological leanings. The actors, diverse as they are, have functioned within networks of institutions that operate in the international arena. African leaders have proved powerless over these institutions, and in certain instances, relied on them for survival. For example, during the civil war in Sierra Leone, President Ahmed Tejan Kabba and his ruling coalition sought the help of Executive Outcomes, a mercenary outfit to prevent the Revolutionary United Front (RUF) of Foday Saybana Sankoh from attacking Freetown, and yet his country was a signatory to the OAU convention that outlawed mercenarism.9 The RUF on their part secured arms and ammunition through trans-border networks secured by Liberia‘s dictator Charles Taylor.10 In Angola‘s civil war, the US government for a long time covertly supplied arms to UNITA rebels to fight the Marxist government of Edwardo Dos Santos.11 For the most part these arms were delivered through a network of dealers with dubious credentials, but with the blessing and assistance of the friendly regime of Mobutu in Congo.12 Hidden within the military adventurism has been the trade and lucrative exploitation of natural resources that feed these networks and sustain their momentum. The symbiosis, though tilted towards the benefit of the northerners, has remained a permanent feature of the African political landscape, and thus a malignant threat to peace in the continent. 9. See Laurence Juma, Africa Its Conflicts and Its Traditions: Debating a Suitable Role for Traditions in African Peace Initiatives, 13 (2) MSU J INT‘L L 463-4 (2005). 10. See William Reno, Failure of Peace Keeping in Sierra Leone, 100 CURRENT HISTORY 219, 222 (2000); Francois Miser, Knives Out for Taylor, NEW AFRICAN 10 (Sept. 2000). 11. See HENRY F. JACKSON, FROM CONGO TO SOWETO: US FOREIGN POLICY TOWARDS AFRICA SINCE 1960 71 (1982). 12. Kathy Austin, Hearts of Darkness, THE BULLETIN OF THE ATOMIC SCIENTISTS 34, 36 (Jan./Feb. 1999). Fall 2006] The War in Congo 103 The civil war currently raging in the Democratic Republic of Congo is a product of these networks. Any analysis that would be favorable to the resolution thereof must be underpinned by the understanding of ‗internationalism‘: the complex relationships between the networks and the international systems; the interactions between the networks and local political groups seeking autonomy and a share in the mineral wealth; and the internal manipulation of ethnicity and other differences by these networks to placate local resentments and fears. The history of the country reveals how these networks have over the years positioned themselves strategically within the local economy and systematically reaped the vast mineral wealth while controlling all political institutions. The process began long before the country became independent. Some analyses have suggested that the civil war in Congo arose from the regional political competition of the mid 1990s.13 These events may have ignited the war in 1996, but the conditions for instability were laid from the day the early Portuguese traders first landed on its coast in the 1400s. An accurate typology of the war in the Democratic Republic of Congo is revealing of the nature of the international system: its inherent weakness and its acquiescence to the predatory characteristics of some of the institutions that have taken advantage of globalization and other neo- liberal ideas to undermine Africa‘s economic and political development. This war demonstrates, perhaps more than most, the tragedy of a history of subjugation, alienation, political domination, corruption, and racism, all these immortalized in the outbreak of an internecine war and the ultimate collapse of a nation. The war in Congo illustrates rather starkly how globalization engenders what Nzongola-Ntalaja calls the ―logic of plunder,‖ and which he defines as the ―growing tendency for states, Mafia groups, offshore banks and transnational mining companies to enrich themselves from crisis.‖14 Thus, whereas the role of the international system may be conceived as that of erecting a buffer between elements prone to war and pursuits of peace, the Congo civil war unveils its ineffectiveness when confronted with entrenched economic interests. In Congo we see how war becomes business and business becomes war: a fusionary modus vivendi that minimizes the prospect for peace as globalization and the race for profits becomes the operating mantra of the wielders of power. What is striking about this war is how the past has connected to the present and perhaps, to the future, too. King Leopold‘s annihilation of the eight million people resonates with the current massacre in the Kivu See, e.g., Carayannis, supra note 8, at 233. See GEORGES NZONGOLA-NTALAJA, THE CONGO: FROM LEOPOLD TO KABILA 227 (2003) [hereinafter THE CONGO]. 13. 14. 104 Gonzaga Journal of International Law [Vol. 10:2 region.15 Leopold might not have set foot in the Congo, in the same way gun manufacturers and diamond merchants in the western world may not be able to locate Katanga in the world map. Similarly, the users of the end products, those who purchase the diamond, or the cell phone and computer manufacturers who use mineral products from these war ravaged regions, have the least concern about where their raw materials come from. Of King Leopold II and his modern equivalent, Adam Hochschild wrote, Unlike the great predators of history from Genghis Khan to the Spanish conquistadors, King Leopold never saw a drop of blood split in anger. He never set foot in the Congo. There is something very modern about that, too, as there is about the bomber pilot in the stratosphere, above the clouds who never hears screams or sees shattered homes or torn flesh.16 This is the tragedy of globalization: that as long as it is not in my backyard I have no cause to worry about it. At the international level, it explains the climate of passivity and sometimes hostility, which characterizes responses to the need to create more elaborate regimes for universal criminal sanctions against those whose activities across borders cause harm to others. A. Lifting the Veil of Sovereignty The realist perspective of world politics is tempered by the proliferation of many non-state entities whose voice on issues of international concern, be they human rights, environment, global peace and security, religious tolerance or even free trade, has become crucial to the international processes of norm creation and supervision. The basis for international relation is sovereignty, territorial integrity and the legal equality of states. That is why international law is commonly referred to as the ‗law of nations‘—a definition based on the idea that states are the sole participants in the international legal system; that they respect each others sovereignty; that they do not intervene in the internal affairs of another; and that they consent to international obligations. As already mentioned, this classical postulation of international law is increasingly becoming frivolous. The global society is no longer an exclusive domain of the nation states. Since the Second World War, various actors have emerged as ‗supra national legal personalities‘ and the international legal order has shown 15. See International Crisis Group (ICG), North Kivu Into the Quagmire: An Overview of the Current Crisis in North Kivu, KIVU REPORT NO.1 1-2 (13 Aug. 1998); Mahmood Mamdani, UNDERSTANDING THE CRISIS IN KIVU: REPORT OF THE CODESRIA MISSION TO THE DEMOCRATIC REPUBLIC OF CONGO (2001). 16. See ADAM HOCHSCHILD, KING LEOPOLD‘S GHOST: A STORY OF GREED AND HEROISM IN COLONIAL AFRICA 4 (1998) [hereinafter KING LEOPOLD‘S GHOST]. Fall 2006] The War in Congo 105 considerable willingness to accommodate the interests of these actors by allowing them to participate in the normative process. Though the non-state actors still suffer what scholars have called ‗procedural disability‘, their contribution has been key to the development of international law either through ‗soft law‘ enactments, or by offering expert advice to various organs of the United Nations. The manner of interaction between the international system and these non-state entities is often characterized by the latter‘s collective approach to policy issues and the paradigmatic influence they have on the international norm creation process. Collectively, these non-state entities function as ‗transnational networks‘ capable of instigating change and transforming international practice and norms. The ‗network‘ concept infers complex and fluid patterns of interrelationships between internal and external actors engaged in fields of common interest and which respect no territorial borders. Networks function as institutions ―characterized by voluntary and reciprocal and horizontal patterns of communication and exchange.‖17 From the vantage point of a social constructionist, a ‗network‘ is a social structure that brings together actors who are interdependent but linked together through complex social, economic and political interactions. They are trans-border agents or structures, closely linked, and acting in concert with one another. In the realm of economics, networks are perceived as the third mode of economic organization, removed from the mainstream, and yet efficient in the ―exchange of commodities whose value is not easily measured‖.18 Sovereignty implies that states have a monopoly on political, economic and social programs within their borders. However, this is no longer the case. Transnational networks exert considerable influence on state affairs, merging its politics, economy and even culture with the international system. You no longer need to go to China to enjoy Chinese cuisine, or to the United States to eat a McDonald‘s hamburger. Similarly, rebels in the heart of tropical forests in Africa watch the latest of Hollywood movies and communicate via satellite phones, not to mention their access to email and the ability to post information on the internet. Transnational networks have broken down borders, making international regulatory polities look like charlatans in the realm of social and political control. Certainly, international law has been slow to react to these new phases of internationalism, and as we shall argue later, this raises moral as well as legal issues to the manner in which the its legal system has aided or abetted 17. See MARGARET E. KECK AND KATHRYN SIKKINK, ACTIVISTS BEYOND BORDERS: ADVOCACY NETWORKS IN INTERNATIONAL POLITICS 8 (1998) [hereinafter ACTIVISTS BEYOND BORDERS]. 18. See Walter Powel, Neither Market nor Hierarchy: Network Forms of Organization, 12 RESEARCH IN ORGANIZATIONAL BEHAVIOR 295-96, 303-04 (1990). 106 Gonzaga Journal of International Law [Vol. 10:2 predatory practices of multinational corporations who today constitute the most formidable part of the international system. B Transnational Conflict Networks: What are They? In this article our concern is with the transnational networks that propel war and conflict. Primarily, such networks are linked to, but do not entirely comprise of what Carolyn Nordstrom calls the ‗shadow economy.‘19 She defines ‗shadows‘ as the ―large scale system of affiliation and exchange that occur apart from formal state structures.‖20 The ‗shadow economy‘ represents, in her view, an intricate system of political economic and sociocultural forces, not just the ‗black markets.‘ The networks‘ formations within the shadow offer three basic characteristics: they operate outside the formal state systems, are international and they ―function not only by exchange and alliance but by internalized norms and cultures of exchange and alliance.‖21 Because they operate outside local governmental structures, shadow networks are not encumbered by local laws, police or courts. But still, they source their legitimacy from the international system through a complex array of ‗institutional dependencies‘ and corporate manipulation.22 ―Conflict networks‖ on the other hand, comprise of the whole spectrum of transnational entities, legal and illegal; visible and invisible. Like other forms of transnational networks, the ―conflict networks‖ have been successful because of their ability to ―mobilize information strategically to . . . pressure and gain leverage over much more powerful organizations and governments.‖23 They are often linked to the ―illegal extraction of natural resources and the exploitation of civilians.‖24 These networks are sustained by a complex system of economic and political alliances that involves powerful political establishments, multinational corporations and many other visible and invisible institutions functioning in the international realm. It is critical to understand that ―conflict networks‖ may be excluded from the mainstream of the discourse on international commerce, not because they are separated from the international structure, but because they bear a label of illegality. Individuals or groups that carry out the dirty business of legitimate functionaries within governments, or the clandestine wings of multinational corporations are often dismissed as criminals, but with little effort to trace their principals. This is because they are a vital part See Nordstrom, supra note 7, at 216. Id. Id. at 218. See William Reno, How Sovereignty Matters: International Markets and the Political Economy of Local Politics in Weak States, in INTERVENTION AND TRANSNATIONALISM supra note 7, at 197-98. 23. See KECK AND SIKKINK, supra note 17, at 2. 24. See Carayannis, supra note 8, at 235. 19. 20. 21. 22. Fall 2006] The War in Congo 107 of internationalism. Marvel Castells explains that ―complex financial schemes and international trade networks link up criminal economy to the formal economy . . . the flexible connection of these criminal networks constitute an essential feature of new global economy.‖25 Good examples are the gun merchants, or merchants of death as they are have been called. Guns and weaponry that support war in Africa and other poorer regions of the world are manufactured in the developed world. These guns find there way into the hands of rebels, most of them under-age children, in the deepest jungles of Angola, Sierra Leone, Congo, and many other remote parts of the world, through a coordinated system of gun trade that connects the industrial complexes of the western world to rebel outfits in the poorer nations.26 According to Jose Vegar, gun merchants are not just anybody.27 They are people with good connections to their governments and often move back and forth through nations without much difficulty. Governments are aware of their activities but ignore them; some even shield them. Jose writes, The international market operates on a number of levels—legal, quasi legal, and nowhere near legal—and employs a network of manufacturers, dealers, middlemen, politicians, military officers and others in every part of the world. While most transactions are not surrounded by spy-novel intrigue, the market remains one of the least understood of the world big business.28 Several observations can be made in reference to this scenario. The first would be the generalized supposition that the ―shadow networks‖ are a necessary and almost inevitable phenomenon of the elitist and comprador trade systems. As far as gun smuggling is concerned, the international system would be hard placed to phase them out because they (networks) stimulate the lucrative gun trade by accessing markets that in the ordinary course of business, legitimate systems may find very hard to reach. Second, war is big business and yet the most catastrophic. While nobody wants to be associated with the horrors of war, those with power and money see no harm in reaping its benefits. And since these wars take place far away, in places that the public in developed nations may occasionally only visit through their television screens, the moral obligation to end them is often overshadowed by the benefits that are reaped out of 25. Marvel Castells, End of Millenium, in THE INFORMATION AGE: ECONOMY SOCIETY AND CULTURE, 167 (3d vol. 1998) cited in CAROLYN NORDSTROM, SHADOWS OF WAR: VIOLENCE, POWER, AND INTERNATIONAL PROFITEERING 94 (2004). See NORDSTROM, supra note 27, at 95. Jose Vegar, Working in the Shadows, 55 THE BULLETIN OF THE ATOMIC SCIENTISTS 37 (Jan. 1999). 28. Id at 38. 26. 27. 108 Gonzaga Journal of International Law [Vol. 10:2 them. The concern that the manufacturers should take blame is often dismissed with a callous naiveté: the intentions of the manufacturer are honorable—blame the illegal gun merchants!29 Third, the need for more intrusive international norms is undercut by the obscurity of such networks. We cannot regulate what we don‘t see, or maybe, what we have decided not to see. The complicity of international media in this respect makes it hard to mobilize public opinion in favor of demanding more accountability. C. The Reach of International Law 1. Curbing Excesses of Non-State Entities International law functions on the basis that nation states, signatories to the United Nations Charter, will abide by certain uniform standards of behavior. But as already mentioned, states are not the only entities that are governed by international law. Today, wide ranges of participants perform on the international scene because the law has imputed upon them a ―legal personality.‖30 These include states themselves, international organizations, NGOs, public and private companies, and individuals. The idea that only states are subject to international law has been overtaken by practice and the evolution of branches of international law such as human rights, the law relating to armed conflicts and international economic law; all of which recognize the participation in the international realm of entities other than states. The International Court of Justice (ICJ) has also recognized corporate personality as a subject of international law in the Bercelona Traction Case.31 But the law of treaties and its jurisprudence has not proclaimed rules on standards of behavior for transnational corporations, or established any surveillance regime over their activities.32 SeidlHohenveldern argues that because of the ―suspicion‖ on transnational corporations, the search for international rules ―better adapted to cope with economic realities of the activities‖ of these corporations will continue.33 Contrary to Seidl-Hohenveldens observation, transnational corporate 29. See generally Natalie J Goldring, The NRA Goes Global, 55 THE BULLETIN OF THE ATOMIC SCIENTISTS 61 (Jan. 1999). 30. Legal personality refers to the capacity of entities to maintain certain rights and to perform certain duties arising from international law. See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 58 (4th Ed. 1990). 31. Barcelona Traction, Light and Power Company Ltd, 1970 I.C.J. 3, 37 (February 5). The court's ruling seems to infer that domestic laws could be brought into the realm of public international law. The justification was stated as follows: "seen in historical perspective, the corporate personality represents a development brought about by new and expanding requirements in the economic field." Id. at 34. 32. See IGNAZ SEIDLL-HOHENNVELDERN, CORPORATIONS IN AND UNDER INTERNATIONAL LAW 12 (1987). 33. Id at 13. Fall 2006] The War in Congo 109 malfeasance is not just a ―suspicion.‖ Environmental and human rights abuses are a common feature of transnational corporate activity in less developed parts of the world.34 Thus, the principle of transnational corporate criminality should have been incorporated into international law long before. After the Second World War, the international judicial community showed the willingness to do so in the I.G. Farben trial at Nuremberg when they affirmed the principle that companies can be held liable for breach of international crimes, such as war crimes and crimes against humanity.35 With the International Criminal Court‘s jurisprudence currently developing, the ambit of criminal culpability is bound to expand from the narrow limits of I.G. Farben to encompass issues of corruption as well.36 Currently, in absence of any laws or accepted guidelines governing different aspects of TNC‘s operations, their conduct of business is beyond third party scrutiny even though some of them clearly go beyond what could be considered morally unacceptable. The question that has arisen with regard to the developing world is whether transnational corporations trading with corrupt entities can be subject to international sanctions. More recently has been the issue of minerals from conflict zones. For example, there are questions whether Charles Taylor, the former Liberian dictator now living in Nigeria, and his consort of armed groups and companies should become a subject of deliberations at the International human rights court in Sierra Leone for his dealings in diamonds during that country‘s civil war.37 Taylor, who continues to ―threaten peace‖ from his exile in Nigeria has been indicted by the court on charges of crimes against humanity.38 In 1974, the United Nations, responding to the need to fill this vacuum, established the United Nations Centre on Transnational Corporations 34. See generally IKE OKONTON & ORONTO DOUGLAS, WHERE VULTURES FEAST: SHELL, HUMAN RIGHTS AND OIL IN THE NIGER DELTA (2001); Raul C. Pangalangan, Sweatshops and International Labor Standards: Globalization, Markets, Localizing Norms, in GLOBALIZATION AND HUMAN RIGHTS 98 (Alison Brysk ed., 2002). 35. The I.G. Farben Trial Case No 57, 10 L rep. of Trials of War Crim.1 (US Military Tribunal, Nuremberg 1947-48). The US tribunal convicted the individual directors of I.G. Farben with war crimes for activities carried out by the company. 36. See Andrew Claphan, The Question of Jurisdiction under International Criminal Law over Legal Persons: Lessons from the Rome Conference on an International Criminal Court, in LIABILITY OF MULTINATIONAL CORPORATIONS UNDER INTERNATIONAL LAW 191 (Menno T Kamminga & Saman Zia-Zarifi eds., 2000). 37. See Jamie O'Connell, Here interest Meets Humanity: How to End the War and Support reconstruction in Liberia, and the Case of Modest American Leadership, 17 HARV. HUM. RTS. J. 207, 212, 237 (2004). 38. Id. at 225. 110 Gonzaga Journal of International Law [Vol. 10:2 (UNCTC).39 One of UNCTC‘s broad objectives is to further understanding of the political economic and social and legal effect of TNC activity especially in developing countries. In 1976, UNCTC formed an intergovernmental Working Group to develop a code of conduct for TNCs, but the draft code has not come into effect yet.40 So far, the only semblance of a United Nation‘s regulatory regime is the ILO guidelines.41 Also, the UN has indicated a ready willingness to apply the OECD guidelines.42 When the UN Security Council established a panel to investigate the linkage between conflict and resources in Congo in 2000, it found that 85 international companies had breached international norms and the OECD guidelines as well.43 The OECD guidelines enjoin member nations to ensure that companies trading within the member nations‘ territories comply with ethical standards. They invoke municipal law as the basis for enforcement, a fact that makes them less useful as instruments of international control. 2. The Human Rights Dimension In most internal wars human rights is often the first casualty. The war in DRC is no exception. Described as Africa‘s ―most African war‖ in the postcolonial era, the war has killed well over 3.3 million people and caused the displacement of millions of people. According to 1999 figures, the UN estimated that about 221,000 Congolese citizens had fled their country and about 775,000 had been internally displaced.44 These figures do not include Rwandan and Burundian refugees on either side of the borders. The New York based International Rescue Committee estimated that about one third of those who have died are children under five.45 Most of the deaths have resulted from starvation, disease and depravation.46 According to The 39. See A. A. Fatouros, The UN Code of Conduct on Transnational Corporations: A Critical Discussion of the first drafting Phase, in LEGAL PROBLEMS OF CODES OF CONDUCT FOR MULTINATIONAL CORPORATIONS 104, 105 (Norbert Horn ed., 1990). 40. See United Nations Commission on Transnational Corporations: Draft U.N. Code of Conduct on Transnational Corporations, May, 1984, 23 I.L.M. 626. 41. See International Labor Organization: Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, March, 1978, 23 I.L.M. 422, 423-30. 42. OECD Guidelines for Multinational Enterprises, 75 U.S. DEPT. STATE BULL. 83 (1976). 43. See generally Report of the Panel of Experts on Illegal Exploitation of Natural Resources and Other Forms of Wealth in the Democratic Republic of the Congo, UN Doc S/2001/357; Stephen Kabel, Our Business is People (Even if it Kills Them): The Contribution of Multinational Enterprises to Conflict in the Democratic Republic of Congo, 12 TUL. J. INT'L & COMP. L. 461, 466 (2004). 44. See Jude Murison, The Politics of Refugees and Internally Displaced Persons in the Congo War, in AFRICAN STAKES OF THE CONGO WAR, 227 (John F Clark ed. 2002). 45. Karl Vick, Death Toll in Congo May Approach 3 million: Conflict leaves Trail of Starvation Disease and Carnage, Washington Post, Apr. 30, 2001, at AO1. 46. Id. Fall 2006] The War in Congo 111 World Health Organization, 70,000 people die avoidable deaths in Congo every month.47 In Congo, like in many other regions of conflict, there have been reports of mass killings, rape, torture, slavery, mutilations and other forms of human rights violations as well. For example, a Human Rights Watch investigative report released in July 2005 has unveiled the depth of the human rights catastrophe in the North Kivu area by detailing the killings and rape of civilians by the Congolese national army.48 The responsibility for human rights violations falls on all entities that have been involved in the war either directly or indirectly. The successive governments in Congo, right from the time of Mobutu to the present bears the first mantle. Though the tragic human conditions have been exacerbated by the war, the consistent pattern of human violations in Congo mirrors the climate of political instability that has rocked the entire region since the 1960s. Political rivalry has taken advantage of ethnic differentiation and identity cleavages nurtured by colonialism to perpetrate what many today see as ethnic conflicts.49 The topology of Congo‘s conflict shows that human rights violations have followed the path of such ethnic schism. The AFDL soldiers, most of whom were drawn from the Tutsi units, led a savage campaign to wipe out the over 300,000 Hutu refugees in Congo.50 A UN investigative team to eastern Congo in 1997 identified about 40 massacres sites where about 100,000 Hutu refuges were believed to have been buried.51 The massacre was probably committed by the AFDL as they fought to remove Mobutu. However, when AFDL took over power, the tide turned against the Tutsis and many of them suffered torture and even death at the hands of the Kabila regime.52 And as will be discussed later in this article, it was this change in policy that led to the beginning of 1998 Rwandan offensive against Kabila. The other connection to human rights violations that seems to be drawing much international attention is that of corporate organizations, especially multinational corporations, carrying on business in Congo and invading forces of Uganda and Rwanda. In eastern Congo, the UN has 47. B. Harden, A Black Mud from Africa Helps Power the New Economy, N.Y. Times, Aug. 12, 2001 cited in ROBERT EDGERTON, THE TROUBLED HEART OF AFRICA: A HISTORY OF THE CONGO, 230 (2002). 48. Democratic Republic of Congo Civilians, Attacked in North Kivu, Hum. Rts. Watch, July 2005, Vol. 17 No. 9, available at http://hrw.org/reports/2005/drc0705/drc0705.pd f. 49. See generally MAHMOOD MAMDANI, WHEN VICTIMS BECOME KILLERS: COLONIALISM, NATIVISM, AND THE GENOCIDE IN RWANDA, (2001). 50. See Frank J. Parker, From Mobutu to Kabila: An Improvement? 177 AMERICA 18 (Nov. 8, 1997). 51. Kevin C. Dunn, A Survival Guide to Kinshasa: Lessons of the Father, Passed Down to the son, in AFRICAN STAKES OF THE CONGO WAR supra note 44, at 58. 52. EDGERTON, supra note 47, at 224. 112 Gonzaga Journal of International Law [Vol. 10:2 estimated that about 3 million deaths can be directly attributed to the external occupation and illegal mineral trading in those areas.53 And with the UN affirmation that corporations dealing in minerals from Congo are helping perpetrate the conflict, human rights organizations have turned their focus to the activities of these corporations and their linkage to human rights violations that may be carried out in their names.54 In October 2003, Human Rights Watch and a group of human rights organizations working in Congo including the International Human Rights Law Group, Global Witness and International Peace Service issued a joint statement calling on the UN and individual member governments to hold the companies mentioned in the report to account.55 In the climate of member states complicity, some directly like the Rwandan and Ugandan governments, and others indirectly, there is little hope that the UN Security Council can move beyond mere acknowledgement of the report.56 In my discussions elsewhere about the nexus between peace and human rights in a civil war context, I contended that human rights enforcement should be part and parcel of the peace building process.57 Before the Rome statute, United Nations intervention was limited to the ad hoc criminal tribunals such as the one in Yugoslavia, Rwanda and Sierra Leone.58 With coming into force of the statute and the establishment of the ICC at the Hague in July 2002, new possibilities have arisen for punishing international criminality that may affect entities engaged in areas of conflict.59 The statute in article 8, gives the court jurisdiction over war crimes, which is defined to encompass ―extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully or wantonly.‖ The exploitation of Congo‘s minerals is unlawful and certainly amounts to wanton destruction of property within the meaning of article 8. It would thus be desirable for prosecutor of the court, Luis Moreno Ocampo, to exercise his rights under article 15(2) and commence investigation of the companies alleged to be illegally benefiting from Congo‘s natural resources. Under this article, the Prosecutor can initiate investigation on his own accord based on information of any impropriety See Report of the Panel of Experts supra note 43. See id. See D.R. Congo: U.N. Must Address Corporate Role in War, Hum. Rts. Watch, Oct. 27, 2003, available at http://hrw.org/press/2003/10/drc102703.htm. 56. See Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth in the Democratic Republic of Congo, supra note 43. 57. Laurence Juma, The Human Rights Approach to Peace in Sierra Leone: The Analysis of the Peace Process and Human Rights Enforcement in a Civil War Situation, 30 Denv. J. Int‘l L. & Pol‘y 325 (2002); Juma, supra note 9. 58. See Makau Mutua, Never Again: Questioning the Yugoslav and Rwanda Tribunals, 11 Temp. Int‘l & Comp. L.J. 167 (1997). 59. Rome Statute of the International Criminal Court, July 17, 1998, 37 I.L.M. 999. 53. 54. 55. Fall 2006] The War in Congo 113 within the courts jurisdiction.60 But any ambitious pursuit of this right may, in the short run, appear unlikely because of the United States continued pressure to water down the ICC‘s overall mandate.61 3. The Moral Issue In absence of any tangible steps being taken against those responsible for human rights violations and other violations of international law, the viability of the international legal order is cast into serious doubt. One cannot help but question the propriety of international law that governs the relationship between the rich nations in the north and the poor ones in the south. To the southerners it may appear that the international systems of laws and polities have remained as tools at the disposal of the northerners, in the construction of a political agenda that favor the rapacious activity of their corporate enterprises. The immorality belies any gestures or rhetoric of good will that occasionally come out of governments, or their paltry handouts channeled in the form of loans and grants, and which to their credit feed the elite networks of political dictators and thieving bureaucrats.62 While the UN is left to churn out a series of resolutions calling on parties to stop fighting, or even send a paltry number of peacekeepers to the conflict arena, the networks that ensure profit for war mongers and their foreign supporters hardly come under any serious scrutiny. This is the problem that confronts Africa today and it is the problem of the Congo. It is also the problem of international law in as far as conflict resolution is concerned. Congo provides a good example of how the regime of international law provides the rich nations of the north with a climate of impunity when their nationals ruthlessly loot natural resources of the poorer nations and in the process ignite factional wars. Indeed, an argument may be made that the regime of international law has never been morally fair, and probably never will. This may be a preposterous statement to make in view of the fact that the UN was founded upon the foundations of peace. Clearly article 2(4) of the Charter of the United Nations which prohibited war and other forms of aggression by one state against another, also forbade other forms of interference or the disruption of peace. But for over half a century that the UN has been in place, its organs have been very ineffective in enforcing the principle of peace. While the Charter has remained in force, UN members continue to wage wars against one another, invade others, and seek corporate Id. at art. 15(3), 12(2). See Kenneth Roth, The Court the US Doesn’t Want, N.Y. REV. BOOKS, Nov. 19, 1998, excerpted in HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT 1195-98 (2d ed. 2000). 62. See, e.g., George B.N. Ayittey, How the Multilateral Institutions Compounded Africa’s Economic Crisis, 30 LAW & POL‘Y INT‘L BUS. 585 (1999). 60. 61. 114 Gonzaga Journal of International Law [Vol. 10:2 enrichment from illegal extraction of resources from their weaker counterparts.63 Whereas the logic of humanitarian intervention is not contested, the bias that enshrouds its implementation still enforces our argument.64 And so African scholarship should begin to question the preponderance of ideas and/or notions derived from the international system, its manner of composition and the political agenda it espouses and test them against the morality of common good that imbued the UN system with the prestige that it has enjoyed all these years. Such an undertaking is crucial to the study of Africa‘s conflicts and especially the DRC civil war. But this cannot be done without an understanding of how the international system has interacted with Africa since the beginning of history. Examining the problems in DRC from a historical perspective thus provides a necessary pivotal point from which to begin configuring what the proper response to the African conflicts ought to be. PART TWO III. INTERNATIONALISM AND THE ‗FORMATION‘ OF THE CONGO NATION STATE Congo‘s formation came about as a result of the European expansionist experiments of the 18th and 19th century. Powerful nations of the northern hemisphere clamored for colonial possessions in Africa and elsewhere to help expand their economies. But like all events of history which devastated the economic, social and political realms of African society, the imperialist project proceeded on the familiar path of international consensus, ruthless military conquest and complete economic and political domination. By and large, the propriety of the international legal regime existing at the time depended solely on the articulation of consensual programs that would further the interest of western capitalism.65 Thus, the imperialist project may have been archaic, racist and brutal, but it was not illegal. In the Congo, the project engendered great suffering to the African people: the massacre of millions of Congolese people by the King Leopold II, the assassination of Patrice Lumumba, Congo‘s first Prime Minister, by the Katangalese secessionists, but with the complicity of the American CIA and the Belgium government, and the rapacious plunder of natural resources by foreign companies. All these factors and others that we shall discuss here conspired to make DRC the mess that it is today. 63. See Edward Khiddu-Makubuya, Violence and Conflict Resolution in Uganda, in THE CULTURE OF VIOLENCE 144 (Kumar Rupesinghe & Marcial Rubio C. eds., 1994). See Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27,1986). 64. The abandonment of Rwanda just before the genocide in 1994 is a case in point. 65. See Dr. Makau wa Mutua, Why Redraw the Map of Africa: A Moral and Legal Inquiry, 16 MICH. J. INT‘L L. 1113 (1995). Fall 2006] The War in Congo 115 Considering that much of what is taking place now has its origins in the colonial history, and also, that the international system is much at work today as it was in the 19th century, the lessons of the country‘s formative years offer valuable insight into causes of the war. The early years were the most important in the establishment of international linkages that were later useful in forging trans-border networks of trade, political alliances, and social movements. These networks have mutated and metamorphosed over the years to comprise the elite groups of key politicians, multinational corporations and military establishments, all hooked onto the rich natural resources that DR Congo has historically provided. A. The Creation of Congo Free State The European political interests in the Congo became manifest in 1865 when King Leopold II took the Belgium throne.66 But by this time the vast area of south Congo and modern day Katanga had already fallen prey to marauding Arab slave traders coming from western Tanzania. In the 1850‘s these Arab traders together with their Nyamwezi counterparts invaded the lower Congo and sold thousands of slaves to the Indian Ocean region and the Far East.67 Apart from the Arabs, the indigenous people of Congo had come into contact with Europeans as early as 1483 when the Portuguese voyager Diogo Cão landed at the mouth of the River Congo.68 Since then, a lucrative trade between the Portuguese and the King of Kongo had ensued. The Portuguese got ivory, slaves, and copperwares in exchange for what has been described as ‗technical assistance‘ (guns and gun powder). The competition for these items of trade brought about many conflicts between the Africans and the foreigners, and also between the foreigners themselves. And as a result, African communities experienced much fragmentation and dislocation. Even when slave trade was abolished in Europe in the midnineteenth century, long and enduring cleavages had emerged within these societies making them vulnerable to European culture and conquest. King Leopold‘s imperialist designs benefited no less from the abiding conditions rendered in the wake of European and Arab intrusion into the Congo. In fact some accounts acknowledge that Arab slave trading prepared, unknowingly though it might be, the grounds for colonial conquest.69 The King, enthralled by the stories of adventure into Africa, and overcome by the ambition to acquire possessions for his country, formed the Association Internationale Africaine (IAA) at a conference of famous explorers in Brussels in 1876.70 The aim of the conference was stated to be 66. 67. 68. 69. 70. EDGERTON, supra note 47, at 77. See J.D. FAGE, A HISTORY OF AFRICA 245-262 (3d ed. 1995). Id. at 224. See KEVIN SHILLINGTON, HISTORY OF AFRICA 252 (1989). THE CONGO, supra note 14, at 15. 116 Gonzaga Journal of International Law [Vol. 10:2 ―abolishing slave trade, establishing peace among chiefs and procuring for them just and impartial arbitration.‖71 But Leopold‘s dream had always been to exploit the vast wealth of the Congo. His fascination with the work of a British journalist Henry Morton Stanley, who had led expeditions to the heart of Congo in 1877, was indeed the precursor to his association with the continent. The King created a financial syndicate known as Comité d‘études du Haut-Congo in 1878 and hired Stanley as the head of the African expedition.72 The Kings instructions to Stanley had been grandiose as was his ambition. Stanley was to ―purchase as much land as you will be able to obtain, and that you should place successively under . . . suzerainity . . . as soon as possible and without loosing one minute, all chiefs from the mouth of the Congo to Stanley falls . . . .‖73 With the financial backing, Stanley returned to central Africa in 1879 as an agent of the King and with express mandate to lure African chiefdoms into signing treaties ceding authority of their fiefdoms to the Belgium King.74 Stanley‘s work, which included the building of roads and the opening of administrative centers along the lower Congo basin from Boma to Kisangani, established for Leopold, the basis for an expanded European empire in central Africa. But these achievements, remarkable as they were, could not translate into direct economic benefit for King Leopold unless some form of international legitimization was achieved. Already, the French were staking claims on areas traveled by their renowned explorer, Savor Nan Brazza.75 The German Chancellor, Otto von Bismark, as well as the British, were far less enthralled by Leopold‘s ambitions. The latter also feared that the King‘s pretensions and expansionist program was likely to hinder free trade in the central African region.76 The period immediately preceding the Berlin Conference saw a lot of diplomatic maneuvering by Leopold, in an attempt to gain acceptance from the European community of his control of the Congo. He realized that some form of an international legal regime needed to be in place that would give Belgium the unfettered authority to exploit all resources of these vast lands and subjugate its peoples without threat from other equally powerful nations. Such a regime came in the form of the Berlin Act, drawn at the Berlin Conference of 1884. The Conference offered the legal consort that European imperialism very KING LEOPOLD‘S GHOST, supra note 16, at 45. See ROBIN HALLETT, AFRICA TO 1875 402 (1970). SHILLINGTON, supra note 69, at 70. FAGE, supra note 67, at 366. Though largely credited as a ―civilizing‖ mission, Brazza‘s expedition up the Ogowe River to the Upper Congo areas had the exclusive purpose of extending French hegemony over these areas. See JOHN READER, AFRICA: A BIOGRAPHY OF A CONTINENT 537 (1997). 76. EDGERTON, supra note 47, at 78. 71. 72. 73. 74. 75. Fall 2006] The War in Congo 117 much needed to ensure a modicum of peace in the face of the bitter jostling for possessions in Africa. It provided Leopold with political legitimacy to his imperialist pursuits that he would have undertaken anyway. Just before the conference, his IAA, which had by then changed its name to International Association of the Congo, transformed itself into an instrument of political administration and renamed the Congo Free State.77 To the African continent, the Berlin Act heralded the inflow of foreign polities interested not in the welfare of the indigenous people, but on their resources. 1. The Berlin Conference and the Legitimization of Colonial Adventurism The Berlin conference took place between November, 1884 and February, 1885.78 It was hosted by Germany and attended by AustriaHungary, Belgium, Britain, Denmark., France, Holland, Italy, Norway, Portugal, Russia, Spain, Sweden, Turkey and the United States.79 On April 30, 1885, the conference gave to the King of Belgium the personal control of the Congo upon the ambiguous understanding that he would improve the condition of the indigenous people and shield them from the exploits of Slave trade. While recognizing King Leopold II as the sovereign of the Congo, the European powers also agreed that there would be free trade and navigation in the entire Congo basin, neutrality in the event of war and that slave traffic would be suppressed. The legal requirement that the King must have ‗effective occupation‘ of the territory meant that Congo was to be transformed into a modern state. It assumed the name Congo Free State and immediately began to assemble the vital elements of state machinery. An army, called Force Publique (a people‘s army) was immediately constituted. It was a small force officered by Belgians, Scandinavians and Italians, but with African soldiers.80 A small core of Belgian administrators and a skeletal transportation grid linking the Leopoldville and the coast was also established.81 The penetration of the empire far into the interior proved much more challenging than had been anticipated. Further, the state was not making any profits as had been expected. By 1890, five years after Berlin, the Congo Free State was overspending about ₤120,000 a year.82 Bankers and other financiers of the imperial enterprise were losing patience with the State. And yet in the Belgium parliament, Leopold still pushed for more assistance in the hope that the Congo Free State may soon generate income. THE CONGO, supra note 14, at 18. EDGERTON, supra note 47, at 78. Id. Id. at 96. Id. at 62. See THOMAS PAKENHAM, THE SCRAMBLE FOR AFRICA: THE WHITEMAN‘S CONQUEST OF THE DARK CONTINENT FROM 1876-1912 (1991). 77. 78. 79. 80. 81. 82. 118 Gonzaga Journal of International Law [Vol. 10:2 In 1887, he requested 10 million francs, and in 1890, he requested another 25 million.83 Leopold was also a ruthless and shrewd businessman. While the Berlin Act had guaranteed a free trade zone for all manufactured products from the European sub-continent, Leopold sought to tax these goods so as to generate income for his struggling state.84 In 1891 and in disregard of the treaty, he issued a decree to the authorities in Aruwimini and Ubangi Uele districts to secure all ivory on behalf of the state. The natives were also banned from hunting elephants or harvesting rubber. In the same vein he made a declaration vesting all land in the state except for minute portions occupied by the natives. The decrees drew opposition from many quarters and threatened him with isolation. Thus, in 1892, he divided the Congo Free State into three zones: the Domaine Privé which comprised of the area north of the equator left exclusively to the state; the middle zone which was open to traders; and South and Eastern region including the Katanga which was still controlled by the Arabs.85 This division deprived Leopold of income from ivory and rubber which were abundant in the south and in the Arab controlled areas and he soon abrogated his own decree and annexed most parts of southern Congo. This brought him into conflict with the Arabs who had controlled these areas from as far back as 1840s. 2. The Arab War of 1892-1893 The presence of Arab traders on the eastern and southern parts of the Congo presented to the Leopoldian imperialist agenda a dilemma of sorts. Earlier, Stanley had warned that the Arabs from Zanzibar might, ―with justice present a counterclaim to the territory.‖86 In the perception of the Europeans, the Arabs were men of ―thought and reflection,‖ and ―capable of zealous service.‖87 This perception rested on the earlier interactions between the European explorers and Arab traders, which by all measures, were very cordial. The explorers relied upon Arab knowledge of the hinterland and secured porters and soldiers from the ranks of Zanzibari Africans, who by association had converted to Islam. Arab settlements along the coast such Kilwa Kivinje, Mombasa, and those in the hinterland such as Ujiji and Tabora, provided resting points for the Europeans.88 But as European occupation became eminent and its motley of traders, missionaries, and administrators began to pour into Africa, the balance of Id. at 398. Id. at 397. Id. at 412. THE CONGO, supra note 14, at 21. See generally EDGERTON, supra note 47. For example In August 1874 when Cameroon reached Nyangwe, an Arab settlement on Lualaba river, the Arab leader of the area, Tippu Tip, generously offered him two men to guide him through Congo and Angola to the coast. See id. at 93. 83. 84. 85. 86. 87. 88. Fall 2006] The War in Congo 119 power shifted. Indeed, the Europeans who had looked weak and vulnerable at the beginning were now strong and superior both politically and militarily. With such power the Europeans began to dictate the terms of trade, and of course insisted on the abolitions of slave trade and the emancipation of all slaves, a matter that did not sit very well with the Arab traders. The abolition of slavery also undermined the Arabs domination of the ivory trade—a trade largely dependant on slave caravans for transportation to the coast. The Arabs also used slaves to construct forts and to carry supplies. For Congo Free State, the Arab question seemed predicated on a preponderance of geo-political and economic considerations. Tippu Tip, described by one author as ―the symbol of Arab slavery and the spiritual leader of the Arab resistance to the Congo Free State‖,89 had been largely instrumental in the ascendancy of Arab control over the entire Kasai, Kivu and Orietale regions. The Arabs captured slaves stole ivory and established huge settlements. Around these settlements were plantations of rice maize and cotton. The settlement around Nyangwe was particularly impressive as Tippu had constructed roads and beautiful forts. It was these same areas that Leopold had acquired by the letter of the Berlin Act. It was inevitable that the Europeans and the Arabs would clash. But Leopold being a crafty colonizer, he at first tried a delicate policy of collaboration, trading money with freed slaves and laborers. But sooner other than later, Leopold could not withstand Arab competition in the Ivory and rubber trade. On the pretext of a Christian anti-slavery crusade, he wedged a brutal war against the Arabs partly to expand his empire and consolidate his dominion over the Congo. The war began with the Arabs attacking a Congo Free State caravan led a British trader Arthur Hodster and killing all its Europeans members.90 The Belgians reacted by sending Captain Van Kerckhoven in company of a thousand African soldiers to the Arab territory. Though Kerckhoven was later killed, the incursion was largely successful. The Belgians seized Ivory worth 1.5 million francs from the Arabs.91 After this incident, several other battles were fought for about two years. The Arabs whose weaponry consisted mainly of muzzle-loading muskets were no match to the Force Publique whose soldiers were trained in the use of modern breech loading rifles, repeating Winchesters Krupp artillery pieces and machine guns.92 By 1893, Arabs had been defeated and driven out of the strongholds in central and southern Congo. At this time Force Publique had grown to about 3 89. 90. 91. 92. Id. at 90. EDGERTON, supra note 47, at 98. Id. Id. at 101. 120 Gonzaga Journal of International Law [Vol. 10:2 thousand African soldiers and 12 European officers.93 Throughout the war they were reinforced by elite African soldiers from the western African nations of Liberia and Sierra Leone. Nyangwe was captured in 1893 by Captain Francis Dhanis and his men after six weeks of artillery fire and hand-to-hand fighting. Soon Kasongo also fell to the Belgians. The last battle was fought just around Lake Tanganyika on October 20, 2004.94 There too, the Arabs suffered defeat. Most of those who were killed were African soldiers. Only sixteen Force Publique officers and non commissioned officers had died and even then, six of them had died of disease. The zeal with which the Belgians fought the Arabs demonstrated their perception of the Congo as being their land or country. Indeed, the two years of brutal military campaign reinforced this view. When the war was won, the task of administering the vast land became but an epicurean undertaking flowing from the ‗hard won independence‘. Captured by the words of a young Force Publique officer Emile Lemery, who had been assigned to administer Nyangwe after its capture from Arabs, Vive le Congo, there is nothing like it. We have liberty, independence and life with wide horizons. Here you are free no more a slave of society...I hope that later on they (Congolese) will be grateful for all the efforts I have made here for the good of the state.95 The war also demonstrated that as far as the Europeans were concerned, Arabs, Africans and others were not subject of international law. There was no need to negotiate with them in the manner of the Berlin Conference. Their interests were subject to the higher good, that of European dominance and cultural subjugation. Defeating the Arabs allowed for the establishment of a colonial state whose brutality was to ―exceed the worst horrors of Slave trade.‖96 The subjugation of the African and the destruction of Islamic dominance were presented as a form of civilized compassion, an idea of which we see some correlation today. B. Leopoldian Congo and the African Holocaust The enterprise of the Congo Free State illustrates in many ways the essence of the economic and political systems established in colonial Africa. The CFS was a hegemonic entity run by the King himself, and a bunch of 93. 94. 95. Id. at 97. Id. at 104. See L H GANN & P DUIGAN, THE RULERS OF BELGIAN AFRICA 1884-1914, 62 THE CONGO, supra note 14, at 21. (1979). 96. Fall 2006] The War in Congo 121 companies such as the Baron Empain Banking Group, Société générale de Belgique (SGB), Campagnie du Kasai and Anglo Belgian India-Rubber Company (ABIR), and solely concerned with the generation of wealth.97 The race to extract rubber made officials of CFS inflict torturous demands on the Africans. They (Africans) were required by law to supply the state with free labor, ivory and rubber. Those who could not meet these demands were raped, lashed with the deadly hippopotamus hide, cicotte, and even murdered. Other companies established under Leopold included the Compagnie des Charmins de fer du Congo Supérieur aux Grands Lacs (CFL), floated in 1889 with a 10 million Franc loan from the Belgian government; Société Internationale Forestiére et Miniére (Forminiére); and the Compagnie du Chemin de fer du Bas-Congo au Katanga (BCK). Leopold used these private enterprises to improve infra structure and to strengthen his administration of CFS. For example in between 1889 and 1898, he built the railroad connecting the port of Matadi and Leopoldville using funds he solicited from a consortium of companies that sought to do business in CFS.98 Leopold‘s rule over Congo resulted in heinous crimes against humanity. Adam Hochschild‘s book, King Leopold’s Ghost- A Story of Greed, Terror and Heroism in Colonial Africa published in 1998 is a convincing narration of how the agents of CFS annihilated millions of Africans through murder, starvation, exhaustion, exposure and disease. He describes the brutality of CFS officers in such passionate terms that arouse even the most malevolent of minds to the catastrophe of the imperial enterprise in early Congo. Take for example the account about one officer called Fievez, whose manner of punishing those who failed to collect enough rubber to meet their quota was particularly cruel: ―I made war against them. One example was enough: a hundred heads cut off and there have been plenty of supplies ever since. My goal is ultimately humanitarian. I killed a hundred people . . . but that allowed five hundred others to live.‖99 Though details of Leopold‘s murderous rule over Congo have been widely documented and its profoundness and sheer illegality generated extraordinary expressions of anger and opprobrium, the atrocity committed to a people still begs some kind of international acknowledgement. Ntalaja-Nzongola has observed that although Leopold‘s 97. Id. (citing to PIERRE JOYE & LEWIN ROSINE, LES TRUSTS AU CONGO (Societe Populaire D‘Editions 1961). 98. READER, supra note 75, at 543. 99. See KING LEOPOLD‘S GHOST, supra note 16, at 166. Most of these murderous acts were committed by the officers of the Anglo-Belgian-Indian-Rubber Company (Abir), a company founded in 1892 in Antwerp and which had been granted concessions to exploit all forest products in the CFS. The arrangement was that the locals would be excused of paying taxes in lieu of collecting wild rubber for Abir. See READER, supra note 75, at 545. 122 Gonzaga Journal of International Law [Vol. 10:2 massacre of the Africans ―did not meet the definition of genocide under international law . . . it resulted in a death toll of holocaust proportions that is estimated to be as high as 10 million people.‖100 The brutality of the CFS attracted the attention of the international community initially through the work of missionaries. An American Southern Presbyterian missionary, William Shephard, an African American from Waynesboro, Virginia, left United States in 1890 to spread the gospel to the African natives in Congo.101 His encounter with the African people and the brutality of the CFS administrators made him write an ―open letter‖ to both Leopold and the New York Herald.102 In it, he blamed the King for not spending enough on African education, and for the unfair trade practices. He noted that the natives he had encountered were ―humans of unexplained patience, long suffering and forgiving spirit‖ against ―the deceit, fraud robberies, arson murder, slave raiding and general policy of cruelty.‖103 Together with other missionaries, such as William Morrison, they wrote extensively about the agents of CFS and the devastation that the natives were subjected to. This attracted the attention of the British Consul for Congo, Roger Casement who conducted an investigation and prepared a report.104 Though largely contested by Leopold, the report created furor in international circles prompting the formation of an international commission of enquiry to investigate the charges made by Casement.105 Unfortunately, the commission confirmed all the findings of the casement report. In August 1908, after an intense debate, mostly acrimonious, the Belgian parliament voted to annex CFS. On November 15, CFS became Belgian Congo.106 C. Katanga: The Jewel on the Crown Katanga Province is part of the central African copper-belt which extends from Angola through Congo to Zambia. It is the seat of 34 percent of the worlds Cobalt reserve and 10 percent of the world‘s Copper reserves. Originally, Katanga was part of the larger Luba Empire founded by the legendary Chiefs Mkongolo, Ilunga and Kalala, in the 1400s. Weakened by internal dynastic struggles and the pressures from neighboring Lunda and Kuba polities, the Luba Kingdom was unable to resist the invasion of the Arab slave traders coming from the eastern African region, especially 100. 101. 102. 103. 104. 105. 106. See THE CONGO supra note 14, at 22. EDGERTON, supra note 47, at 116. Id. at 124. Id. at 125. READER, supra note 75, at 547. FAGE, supra note 67, at 404. EDGERTON, supra note 47, at 155. Fall 2006] The War in Congo 123 Tanganyika.107 By 1856, a Nyamwezi trader named Msiri had conquered it and set up a kingdom in the area. It was a Belgian expeditionary force headed by Captain Grant and sponsored by the CFS that defeated Msiri and killed him on December 28, 1891.108 That paved the way for the control of the area by King Leopold‘s Congo Free State. Leopold extended the CFS hegemony southwards to cover the entire present day Katanga province. Then, the province had no significance in terms of economic wealth, except for rubber and ivory that CFS obtained through forced labor. The demand for rubber rose after the discovery of pneumatic tyres by Eduoard Michellin in 1891. Prior to this rubber was only used for water proof clothing and elastic products.109 This changed dramatically in the early 1890s when the Europeans discovered and began to exploit the large copper deposits in the areas of Northern Rhodesia and across the border into the Katanga region. The discovery of the mineral wealth in Katanga has been accredited to René Jules Cornet, a Belgian geologist who traveled into Congo in 1892 as part of a mission sponsored by the Compagnie du Katanga.110 The discovery of copper coincided with the expansion of electricity use and electric companies in Europe. King Leopold granted a concession to CCCI to begin prospecting for minerals and to establish CFS hegemony over mineral resources. CCCI later formed another subsidiary company called the Compagnie du Katanga, ―to ensure effective occupation administration and mineral exploration of Katanga.‖111 In 1900, just eight years before CFS relinquished its rulership over Congo, Leopold and the company formed a joint venture company to mange the Katanga both administratively and its minerals. The company was called Comité Spécial du Katanga (CSK).112 In 1906, the Katanga Special Committee in which Leopold had significant interests, the Tanganyika Concessions and Société Générale de Belgique founded the great Union Minière du Haut-Katanga (United Mines of Upper Katanga, UMHK).113 The company began to extract copper in 1911 and by 1928, it was producing about 7 percent of the world‘s total. UMHK, the largest single corporation was at the helm of international corporate venture in Congo and 107. See FAGE supra note 67, at 308 (suggesting that Luba kingdoms failed because they were unsuccessful in integrating local communities into their ―political hierarchy.‖) This is an interesting correlative to the Mobutu regime many centuries later which failed for the same reason. 108. PAKENHAM, supra note 82, at 409-410. 109. READER, supra note 75, at 544. 110. THE CONGO, supra note 14, at 28. 111. THE CONGO, supra note 14, at 31. 112. Id. 113. See LUDO DE WITTE, THE ASSASSINATION OF LUMUMBA 31 (Ann Wright et al. trans., 2001). 124 Gonzaga Journal of International Law [Vol. 10:2 probably the most lucrative enterprise for the colony.114 It carried business through a conglomerate of trusts and subsidiaries, the oldest being the Compagnie du Congo pour le commerce et I‘industrie CCCI established in 1928. It was this subsidiary together with its other subsidiary, Compagnie du Chermin de fer du Congo (CFC), that later financed the building of the lower Congo railroad to speed up the development of mining activities in the entire copper-belt zone. This venture received monetary support for the British as well as German private groups, all of them interested in the exploitation of the mineral wealth in the region. In the 1950s, copper production from the Katanga mines neared about 250,000 tons, thus placing Congo among the four largest world producers.115 In the same years, cobalt from Congo represented over 75 percent of the entire world production. In the same period, UMHK registered profits of between 2.5 and 4.5 million Belgian francs a year.116 This company dominated the political, social and economic affairs of the province because it controlled the exploitation of all the minerals: cobalt, copper, tin, Uranium and zinc. No wonder it became a major political player in the events that were to plague the country immediately after independence and later on. But as far as this discourse is concerned, it signaled the internationalization of Congo‘s wealth and the effective political influence that transnational organizations were to exert on the future of the country. As suggested by one analyst, the impact of the colonial plunder and exploitation of natural resources through organized corporate entities engendered the ―the complete transformation of the African societies by subjecting them to capitalist relations of productions.‖117 IV. CONGO‘S FIRST REPUBLIC AND THE GUISE OF FREEDOM The characteristics of the Belgian rule over Congo was in many ways similar to any other colonial hegemony in Africa. The exploitation of the wealth in the colony was to feed the expanding industrial infra-structure and the war efforts in Belgium. Already, Katanga was providing the bulk of minerals, including uranium from the Shinkolobwe mines.118 The grid of transnational networks in the region expanded beyond Belgium. Leopold and his successors could be credited with directing the bulk of wealth from the colony to benefit their citizens, but other European nations benefited as well. In fact, it was during this period that transnational networks 114. 115. 116. 117. 118. Id. Id. Id. THE CONGO, supra note 14, at 32. Id. at 29. Fall 2006] The War in Congo 125 entrenched themselves in the region to create such powerful and exploitative conglomerates with tenterhooks in all European and northern American countries. To understand how this network began, one has to envision the entire mineral rich zone stretching from the southern tip of the continent, across Transvaal to the southern parts of present day Zambia and then into southern parts of Congo, as having been completed dominated by European interests by the mid-seventeenth century. In 1889, the British had established British South African Company (BSAC) based in South Africa but with a charter to exploit all mineral wealth north of the Cape. Cecil Rhodes, the Boer leader of South Africa, had extended his hold to Zambia using his company Tanganyika Concessions Limited (TCL) which by 1899 was already prospecting for minerals there. Thus, when UMHK came into the scene, TCL and a number of British banks, including Barclays, acquired shares. The Americans joined the race for exploitation of Congo in 1940 through the Rockefeller group. Its interest was mainly in diamond mining.119 There was no question that under the Belgian rule, Congo had been internationalized, and the race for exploitation of its resources superseded any concerns for the establishment of a viable political unit within its borders. Every administrative action, addict, or policy orientation, fed into this agenda—profiteering. And not the welfare of African peasants who participated in the agricultural sector, or the infra structure that could uplift their life, was a priority. In all counts the Belgians presided over one of the most exploitative regimes that catered for international interests at the expense of local communities. Yet the integration of the indigenous systems of local communities to international realm never really occurred, except that the former were alienated from their wealth and culture when the later flourished by reaping all the benefits. Historians now document how in the process, the colonial system dismantled social and political cohesion of indigenous groups by subjecting them to serve the capitalist exploitative networks. Thus, early African resistance did not take the form of organized political action, but sporadic uprisings within the colonial structures of administration such as, ―the colonial army, workers camp and compulsory labor camps.‖120 Such uprisings were crushed in the normal cause of colonial rule and did not make any significant dent on their hold of power. A. Political Party Activity and the Path to ‘Independence’ Ironically, the birth of the decolonization process in Congo is credited to a Belgian professor, A.A. J Van Bilsen who in 1956 published a report entitled ‗Thirty year plan for the Political emancipation of Belgian 119. 120. Id. THE CONGO, supra note 14, at 41. 126 Gonzaga Journal of International Law [Vol. 10:2 Congo.‘121 The report castigated the Belgian colonial edifice as subversive and lunatic and called for his fellow countrymen to prepare for the emancipation of the Congolese people. While this report infuriated the colonial administrators, its publicity evoked African nationalism in the form of Alliance des Bakongo (ABAKO) of Joseph Kasa-Vubu, grandson of a Chinese laborer who helped Stanley build the railroad. It also brought the future of Congo to the forefront of Belgian national political debate. But, while the Belgians were still debating the merits and the demerits of the report, Joseph Kasa-Vubu, rejected the thirty year plan calling for the immediate withdrawal of Belgians from Congo.122 ABAKO thus became the first political party, and its success as seen in the election of Kasa-Vubu as a mayor of Dendale commune in 1958, spurred the formation of other parties such as the Mouvement National Congolais (MNC) of Patrice Lumumba, and Conakat of Tshombe and Munongo, that were to play a role in the independence movement and the political fiasco in the immediate post independence period. 1. Mouvement National Congolais (MNC) This is was the first truly national party. It was formed in October, 1957, under Patrice Lumumba, a prominent leader of the independence movement. Lumumba was born on July 2, 1925, at Katako Kombe in eastern Kasai.123 A prolific nationalist and gifted orator, he joined other African nationalists like Tom Mboya of Kenya and Nkuramah of Ghana to the Pan African Conference in Ghana in December, 1958. When he came back he convened a huge rally in the heart of Kinshasha to report to the Congolese peoples the events in Ghana and to call for total independence of Congo. In his moving speech, he asserted that independence was not a gift but a ―fundamental right of Congolese people.‖124 By this time, the mood in the country was generally opposed to the continued Belgian authority. In January 1959, there were widespread riots in Kinshasha after the Belgian authority cancelled Kasa-Vubu‘s planned rally.125 The mass riots and state of insecurity continued year long. MNC called it congress in October 1959 in the wake of these riots that had now spread to Kisangani and as far as Rwanda. Lumumba was arrested and detained at a Likasi prison. While in prison, his popularity soared, and his name became the symbol of the independence movement. The Belgians, unable to resist the pressure, called for an independence conference in Brussels on January 20, 1960. All the 121. Id. at 81 (citing Van Bilsen, ‗Un plan de trente ans pour l‘emancipation politque de l‘Afrique belge‘). 122. Id. at 82. 123. Id. at 83. 124. EDGERTON, supra note 47, at 182. 125. Id. at 182-83. Fall 2006] The War in Congo 127 African parties rallied behind Lumumba and insisted on his release. Congo obtained its independence on June 30, 1960. Patrice Lumumba‘s MNC-L had captured most of the seats in the pre-independence elections in May. Thus, with a loose coalition of radical nationalist parties, mainly Antoine Gisenga‘s PSA, Anicet Kashamura‘s Cerea and Jason Sandwe‘s Balubakat, Lumumba formed the government and became Congo‘s first prime minister. Joseph Kasa-Vubu became the nation‘s first ceremonial president. Lumumba‘s government did not have time to settle. Apart from inheriting a country where the average yearly income of the population, then about 15 million, just about $ 95 per person,126 the infiltration of external influence, and their monopoly of all the wealth, made Lumumba less able to consolidate and assert his government‘s authority. The political differences fanned by the external cold war cleavages denied MNC an opportunity to forge any meaningful political alliance, and thus effectively assume full leadership of the country. Soon these differences began to precipitate violence and open rebellion. The widespread mutiny within the army and the secessionist revolt in Katanga, both of which occurred only two weeks after Lumumba came to office, demonstrated the fragility of the African government in Congo. The mutiny led by General Emiles Janssens, a colonial officer retained by the new government, began on July 4.127 The soldiers demanded promotions and better salaries. As a result of the mutiny many Belgians left Congo and the Belgium government under pretext of the protection of its citizens intervened militarily. As we shall show, it was not by coincidence therefore, that Moishe Tshombe proclaimed Katanga‘s secession on July 11. However, these two events, the mutiny and Katanga secession, reflected the context in which Congolese politics were carried at the time, the irreconcilable differences between the progressives nationalists like Lumbuba and the moderates like Joseph Kasa-vubu, and the dominance of western political influence that was to become anathema to the emergence of benign and autochthonous nationalist leadership in Congo. That is why Tshombe‘s revolt in Katanga is a particularly significant factor in the understanding of Congo‘s political history. It was undoubtedly the prelude to the chaos and instability that external interests and influences have wrought upon the nation while competing for its natural wealth. 2. Moishe Tshombe and Conakat Conakat was founded in 1956 by Moishe Tshombe, a Lunda, and Godefroid Munongo, a grandson of the famous Nyamwezi King Msiri. Conakat‘s political activity was much influenced by the European settler ideology which favored Katanga‘s secession from Congo. Originally 126. 127. PARKER, supra note 52, at 2. DE WITTE, supra note 113, at 6. 128 Gonzaga Journal of International Law [Vol. 10:2 known as the Union Pour la collaboration des classes moyennes au Katanga (Union for the collaboration of the middle classes in Katanga), the party had advocated for the continual immigration of Europeans in Katanga. Notable was a declaration on the introduction to its manifesto that denigrated the black people as being a people ―without writing, without history, without philosophy and without any consistency.‖128 Thus, Conakat had opposed the creation of a unified government. It was not so much of this party‘s politics that brought about the secessionist movement, but the conflict between the unitarist aspirations of the Lumumba government and the entrenched European bourgeoisie interests maintained and propagated by the management of UHMK and SGB companies. These external interests were politically represented by the Union Katangaise, a party of white settlers. Among the constellation of interests that favored the declaration of an independent Katanga were the white dominated South Africa, Britain, France and the Belgian ruling class. Union Katangaise needed a nationalist outlook that would mask its racist overtones. Thus, they recruited Tshombe and Munongo. The UMHK paid 1.25 billion Francs into Tshombe‘s account. Without this money, the secession could not have survived.129 This was the tax money that the company was supposed to pay to the government in Kinshasa. The role of the United Nations under the Dag Hammerskjold is worth mentioning. When the situation in Katanga got out of hand in July, Lumumba and Kas-Vubu requested help from the UN.130 The Security Council proceeded to authorize the secretary General to send a peace keeping force to Congo. According to the Resolution, the force was to assist the Congo government ensure the withdrawal of the Belgian forces, to end the Katanga session, and restore law and order. While the mandate was carried out in most other parts, the UN was unwilling to aid in the expulsion of the Belgians. The UN soldiers merely acted as a buffer between the government and Tshombe, a fact that in Lumumba‘s eyes lent legitimacy of sorts to the secession and bolstered the Belgian position.131 The Belgians welcomed the UN action which was seen as the triumph of their diplomacy and military support of Tshombe. Its foreign minister while addressing the House of Representatives remarked, ―thanks to our perseverance and I can also say thanks to our diplomatic prudence, Monseuir Tshombe has gained recognition.‖132 While such UN policy could mainly be attributed to Hammerskjold‘s belief that the west, as opposed to the Soviets, had had a 128. 129. 130. 131. 132. Id. at 32. Id. DE WITTE, supra note 113, at 8. Id. at 13-14. Id. at 13. Fall 2006] The War in Congo 129 ―sacred mission towards Africa in general and especially the Congo,‖133 most of the decisions he made on Congo were influenced by Ralph Mbunche, his American aide. It is most remarkable that after Lumumba‘s assassination and the US interest shifted, the UN strategy also changed towards pragmatic reintegration of the territory of Congo. The secession quickly ended and Tshombe went on vacation to Spain only to come back to Congo in 1964 as Congo‘s prime minister.134 B. The Assassination of Lumumba: The Stifling of a Nationalist Cause From inception, Lumumba‘s nationalist government was under threat from the western powers who sought its overthrow and subsequent replacement by neo-colonial stooges who would succumb to the interests of foreign trusts and holding companies that had controlled the country‘s political mainstay for years. There are numerous accounts which explain how these forces conspired to eliminate him. The infamous US Senate investigation of the CIA‘s role in the affair in 1975-6, that absolved the intelligence organization from blame, nevertheless detailed how it helped plan for the assassination.135 The United States government appalled by Lumumba‘s invitation of the Soviet Union to help restore order in Congo sanctioned a plan by the CIA to kill Lumumba through lethal poisoning.136 The CIA delivered the poison to Larry Devlin, their agent in Leopoldville. But the plan failed because Devlin, a devout Catholic refused to ―commit murder.‖137 The Belgian Barracuda plan, allegedly abandoned after Lumumba was arrested in October 10, 1961, did not mark the end of that country‘s involvement in the Lumumba affair.138 In fact, later accounts indicate how the Belgian Foreign, Minister Pieere Wigny and its African Minister, Harold d‘Asperemont, gave orders for the transfer of Lumumba to Lubumbashi on January 17, 1961, where he was assaulted by Conakat leaders and later executed and his body dissolved in acid.139 The overthrow of Congo‘s first government, the elimination of Lumumba, and the suppression of the popular resistance to the neo-colonial regimes of Joseph Kasavabu, Mobutu and Moishe Tshombe undermined the prospect of forging nationalism in the Congo. According to one analyst, the assassination of Lumumba ―was the West‘s ultimate attempt to destroy the 133. THOMAS KANZA, CONFLICT IN THE CONGO: THE RISE AND FALL OF PATRICE LUMUMBA 220 (1972). 134. EDGERTON, supra note 47, at 197. 135. SENATE INTERIM REPORT, ALLEGED ASSASSINATION PLOTS INVOLVING FOREIGN LEADERS, S. REP. NO. 94-465, at 13 (1975). See SENATE FINAL REPORT, FOREIGN AND MILITARY INTELLIGENCE, S. REP. NO. 94-755 (1976). 136. DE WITTE, supra note 113, at 15-17. 137. See id. at 47-48. 138. Id. at 22-26. 139. See id.; THE CONGO, supra note 14, at 111-112. 130 Gonzaga Journal of International Law [Vol. 10:2 country‘s authentic independent development.‖140 It also heralded a period of uncertainty that Mobutu later capitalized on to forcefully take leadership. He too, but with the support of western governments, proceeded along the same path—that of eliminating nationalists and institutionalizing kleptocracy and dictatorship. And yet it is not difficult to understand why the western nations led by United States summoned all their powers to defeat Congo‘s nationalism. Of course, a justification is often found in the cold war argument that the soviet influence in Africa needed to be checked. But ensconced in this fact, were the economic contraction that the emerging nationalist movement was bound to create for the imperial powers. Lumumba‘s assassination and the western government‘s role in it is just one example of how imperialist opportunism of the western world resulted in a myriad of political instability all over Africa. The current war in Congo, the Angolan civil and many other conflicts in the continent are a direct consequence of the stifling of nationalism in these countries so as to allow for the free exploitation of resources. In not a single African country was nationalism ever allowed to grow. In Congo, nationalism was equated to communism. And because there were a handful of African politicians already functioning within the comprador capitalist networks that had cropped up during the colonial era to exploit Congo‘s natural resources, it suited the west just fine to brand the nationalists as ideological misfits. History has shown that Lumumba and other nationalists like Mulele had broken ranks with this group of comprador capitalists and ―thrown their lot with the broad spectrum of the population.‖141 That is why he was killed. C. Mobutu’s Zaire and the Collapse of a Nation After coming to power through a military coup on November 24, 1965, with the help of the western nations, Mobutu became the undisputed leader of government and the ‗big man‘ of Congo‘s politics. He changed his name to Mobutu Sese Seko Kuku Ngbendu Wa Za, Banga (the all powerful warrior who goes from conquest to conquest leaving fire in his wake)142 and his country to Zaire. Mobutu tenaciously presided over one of the most corrupt and dictatorial regimes in the history of the sub-Saharan region. And yet the regime lasted for a whole three decades because it enjoyed the patronage of the US and other western nations. For example, in 1977 Citibank helped raise $250 million to help develop Zaire‘s mineral resources.143 In the words of Irving Freidman, the bank‘s Senior-Vice President, ―there was pressure in the world for capitalist governments to DE WITTE, supra note 113, at xxv. DE WITTE, supra note 113, at 176. See EDGERTON, supra note 47, at 208. MICHAEL BARRATT BROWN, AFRICA‘S CHOICES: AFTER THIRTY YEARS OF THE WORLD BANK 111 (1995). 140. 141. 142. 143. Fall 2006] The War in Congo 131 support Zaire‘s economy.‖144 Such patronage may have encouraged Mobutu to implement ambiguous economic policies that were aimed at nothing but improving his own personal wealth. In 1966 he passed the Bakajika law where the state took over all the ownership of all land and mineral rights in the country.145 Then in November 1973, he announced measures to put nationals in charge of all economic activities. He called it the Zairenization program.146 He justified it thus: ―Zaire is the country that has been the most heavily exploited in the world. That is why farms, ranches, plantations, concessions, commerce, and real estate agencies will be turned over to sons of the country.‖147 Zairenization was an ill-conceived program of economic devolution where foreign-owned commercial and industrial assets were seized and distributed to patrimonial clients.148 Through this program, big plantations, ranches and large commercial business enterprises were given to the top political elite. Smaller enterprises were allocated to local notables. Army officers, judges, members of the regional administration, and ambassadors failed to qualify as potential recipients (acquéreurs). Because of the very nature of the Zairenization program, its populist agenda and claim for African aggrandizement, Mobutu included in it an ambiguous cultural program that advocated for the elimination of western cultural influence, but with little to show for it except the encouragement for citizens to replace their Christian names with traditional ones. The result was an economic disaster.149 Within months, business concerns suffered losses, there were massive lay-offs and commodity shortages became increasingly widespread, along with liquidations of assets. Asset stripping in the retail sector became a common practice. Efforts of the regime to introduce price controls did little to curb inflation. The plantation sector of the economy was completely crashed. The mining sector was affected, too. Earlier in January 1967, Mobutu had nationalized the UHMK and a state owned company was formed.150 And with the closure of the Benguela Railway due to the Angola civil war, the only costly alternative was through South Africa. While the prices of copper plummeted from $3380 a ton to $1350 a 144. Nancy Belliveau, Heading Off Zaire’s Default, INSTITUTIONAL INVESTOR, March 1977, cover story quoted in SUSAN GEORGE, A FATE WORSE THAN DEBT 117 (1990). 145. See THE CONGO, supra note 14, at 147. 146. See MARK HUBBAND, THE SKULL BENEATH THE SKIN: AFRICA AFTER THE COLD WAR 222-23 (2001). 147. Mobutu made the declaration on November 30, 1973. See Zaire: Zairianization, Radicalization and Retrocession, available at http://www.country-data.com/cgi-bin/query/r15003.html. 148. See THE CONGO, supra note, 14, at 149. 149. Id. 150. Id. at 147. 132 Gonzaga Journal of International Law [Vol. 10:2 ton within a space of three months, oil and gas prices rose exponentially to heighten the country‘s economic crisis.151 The most conspicuous aspect of Mobutu‘s regime was its kleptocracy. The depth of official corruption was well known even in the international financial circles. According to one estimate, ―the direct thefts‖ of Mobutu and his cronies in any single year amounted to at least ―20% of the state operating budget (of slightly over US $1 billion in 1986), 30% of mineral export earnings (worth $200 million a year in 1980s) and as much as 50% of the state capital budget (US $500 million).‖152 Mobutu‘s personal wealth at the time of his overthrow could be estimated at between $4 billion and $5 billion.153 Apart from corruption, the Mobutu days saw Zaire transform itself into a major center for smuggling.154 One of the reasons was the scale of investment in its rich copper-belt area, but primarily it was the weakness of government and dire economic conditions. Zaire developed large scale smuggling operations involving armed gangs and mercenaries, dishonest political officials, which spread to north to Sudan, Nigeria and south into Botswana and South Africa. Goods which flowed through these smuggling rings included gold, ivory, coffee, cobalt, and malachite. In exchange, manufactured goods including cars and pharmaceuticals flowed back into Zaire. It was no secret that money earned out of these operations found its way into Swiss bank accounts and property investments in Europe and the US. The exact amount of Zaire‘s smuggling cannot be certain. McGaffey has estimated that it was 30 to 60 percent of coffee crops between 1975 and 1979, diamonds valued at $59 million in one year, 90 tons of cobalt in 1985 valued at $15 million, and 90 percent of ivory exported in the 1970s.155 In the late 1980s about twenty international companies from the US, South Africa, France, Australia and Canada jostled for control of Zaire‘s mineral wealth.156 But Mobutu‘s regime, already entrenched in its corruption, had monopolized the main national mining companies such as Gecamines (copper and cobalt), Okimo (gold), Miba (diamonds) and Somiki (gold and cassiterite). The foreign companies exerted pressure on Mobutu to privatize the mining interests but he resisted, mainly because he would lose the source of his personal wealth.157 By 1987, Zaire‘s per capita 151. Jermaine O McCalpin, Historicity of a Crisis: The Origins of the Congo War, in AFRICAN STAKES OF THE CONGO WAR, supra note 44, at 43. 152. See Steve Askin & Carole Collins, External Collusion with Kleptocracy: Can Zaire Recapture its Stolen Wealth?, 20 REV AFR POL ECON 72, 83 (1993). 153. Parker, supra note 50. 154. See generally JANET MACGAFFEY, THE REAL ECONOMY OF ZAIRE (1991). 155. MACGAFFEY, supra note 154, at 17-19. 156. See Colette Braeckman, The Looting of the Congo, NEW INTERNATIONALIST, May 1, 2004, at 13. 157. Id. Fall 2006] The War in Congo 133 income was no more than $150.158 With inflation rising to 23,000 percent and the Zairian currency almost worthless, the nation‘s institutions, notably the army, began to collapse.159 At the same time, the US began to distance itself from Mobutu. His fall had begun and nothing short of a miracle could save the regime. V. THE WARS OF ‗SECOND‘ LIBERATION It is inconclusive to see Congo‘s civil war as having begun only in 1996 with the invasion of Laurent Kabila‘s Alliance of democratic Forces for the Liberation of Congo (AFDL). Congo has been at war with itself since its inception. This legacy is owed to the successive competition among groups that over the years have exploited its natural wealth, but which had never found a formula for peaceful coexistence amongst themselves or with indigenous peoples. From the day Congo became a country, a mélange of capitalist trade ventures represented in the lot of Arab slave marauders, Belgian prospectors, the fractured colonialist consort of corrupt administrators, weak and corrupt African post-colonial regimes, and the whole array of multinational companies now operating in the region, have been at war without any semblance of order that would restore the nation‘s wealth to its rightful owners: the Congolese people. Congo had become an arena of resource wars and competition of strategic interests that pitted the super powers, the USA and Soviet Union against one another, postcolonial African states against one another, and of course, criminal gangs and smugglers of varying strength. While the struggles of the Congolese peoples against hegemonic subjugation by such confluence of international interests have always been there, their effect has been minimal until Laurent Kabila‘s team came into the picture. Some of the reasons have been discussed already but the significance of it lies in the understanding that whereas in the past international groups were willing to involve themselves in the wars and articulated their interests rather blatantly, the tactics have changed. Kabila and his rag tag rebel army were creatures of these same interests, and thus, executed a course that had already been charted for them. A journalist wrote thus of Kabila, ―[t]hough [Kabila] had been anti-Mobutu revolutionary all his adult life, this wasn‘t his war. He didn‘t start it. He didn‘t fund it. He didn‘t even arm it or staff it, at least not in the beginning.‖160 158. WORLD BANK, SUB-SAHARAN AFRICA: FROM CRISIS TO SUSTAINABLE GROWTH 221 (1989). 159. See GEORGE B. N. AYITTEY, AFRICA IN CHAOS, 62 (1998). 160. LYNNE DUKE, MANDELA MOBUTU, AND ME: A NEWSWOMAN‘S AFRICAN JOURNEY 142 (2003). 134 Gonzaga Journal of International Law [Vol. 10:2 A. Reclaiming Zaire and the ADFL Factor Some analysts believe that Laurent Kabila, a Luba from Katanga, was propped up by the coalition of African states including Angola, Eritrea, Rwanda, Tanzania, Uganda and Zimbabwe to mask their intention of removing Mobutu from power.161 Indeed this may be a very credible summation of what the Kabila factor represented at the beginning of the ADFL affair, only that Kabila himself never realized this and that is why his exit came fast on the heels of the ADFL triumph in Kinshasa. But, who is this Laurent Kabila? Born in 1939 in Jadotville, Shaba province, Laurent Kabila first came into the limelight in around 1958 when together with Jason Sendwe, Prosper Mwamba Ilinga, and Idelphonse Masengwo formed the Balubakat party in Katanga to press for independence. Balubakat shared Lumumba‘s nationalist agenda and was opposed to the Tshombe‘s secessionist moves in Katanga. After the assassination of Lumumba, most of his supporters and sympathizers were eliminated from the political scene. Some of them like Christophe Gbenye went into exile in Congo Brazzaville. While there, he formed the Counseil National de Liberation (CNL) as means to garner support in their efforts to remove the neo-colonialists from power. Joined by the revolutionary forces of Pierre Mulele, the Marxist guerrilla who had spent years in the Peoples Republic of China, CNL began a military campaign against the Kinshasha regime in 1963. Gbenye who was the then leader of CNL named Kabila, ―Chief of military operations for the east of Congo.‖162 Mulele was later lured into Kinshasha by Mobutu and brutally murdered. By this time, CNL, under the leadership of Laurent Kabila and Gastom Soumialot, continued with its armed campaign. By November 1964, CNL had taken control of over half of the Congo territory. But, plagued by leadership squabbles, dearth of ideology, and poor military organization, CNL was unable to hold to its gains. With Mobutu‘s onslaught, its leaders disintegrated and went into exile. It should be noted however, that Mobutu could not have succeeded then, except for the support he got from the western countries led by the United States. The CIA, fearing the possible defeat of Mobutu and the capitalist leaders in Congo, began an intensive military campaign to remove CNL from Congo. This campaign, according to one analyst, was against Kabila and Mulele factions and lasted for four years.163 Apart from giving ―critical air support to government troops and mercenaries in addition to dropping napalm and other deadly agents on the people,‖ US planes dropped Belgian paratroopers on Kisangani and Isiro to help recapture these strategic towns.164 With the 161. 162. 163. 164. THE CONGO, supra note 14, at 225. Id. Id. at 136-38. Id. Fall 2006] The War in Congo 135 defeat of CNL, Kabila was left alone to lead a low-intensity guerilla struggle around Fizi-Baraka until 1980 when he retired and went into business. Several accounts describe Kabila‘s life after that to have been devoted to smuggling of gold and ivory out of eastern Congo.165 It was during this time that he might have masterminded the kidnapping of Stanford university students studying chimpanzees at the Jane Goodall‘s Gombe Stream Research Centre in Tanzania.166 The students were held for two months before being released on a ransom of $40,000. Kabila‘s comeback in 1996 is explained more in what he did after 1980 than in his political association with Christophe Gbenye, Pierre Mulele, Gastom Soumialot and other opposition groups during the Mobutu era. After Mobutu had crushed their resistance, Kabila shed off his Marxist orientation to join the fledgling informal capitalist economy dominated by trade in smuggled good, extortion and, of course, mercenarism. One author has described him as spending ―more time roaming between Zaire, Tanzania Uganda and Uganda directing a group of soldiers who spent more time smuggling minerals out of the country than trying to overcome Mobutu.‖167 The Kabila factor is profound because it causes an understanding of how the plight of nationalism and the need to let the Congolese people take charge of their political matters had always been obviated by powerful external interests. To canvass this rather large understanding of the complexity of Congo‘s situation, I examine three factors that show the interconnectedness of ADFL and Kabila to the externalities that made war inevitable. These factors, summarized in the weakness of the Mobutu Empire, the political dynamics of the region, and of course, the question of wealth control, made conditions of incongruity amongst ethnicities to come to the surface and help perpetuate such a heinous war. 1. Regional Dynamics Congo is in the central part of Africa. It is virtually interlocked except for a thirty five mile Atlantic Ocean coastline and served by the port of Matadi on the mouth of river Congo. To the east the country borders the small countries of Rwanda and Burundi, Uganda and Tanzania. To the north are Sudan and the Central African Republic. Congo Brazzaville and Angola are to the east, while Zambia is to the south. Because of its strategic location, Congo has always been involved, in one way or another with events in the neighboring countries. During the Angola civil war, Congo provided a safe route for contraband diamonds that UNITA rebels smuggled across the border to finance its war agenda. There were also UNITA bases 165. 166. 167. SHILLINGTON, supra note 69, at 228. Id. See Parker, supra note 50. 136 Gonzaga Journal of International Law [Vol. 10:2 in Congo. Thus, Mobutu was always viewed suspiciously by the Dos Santos government in Luanda. Congo Brazzaville, its neighbour to the north, had always provided asylum to political refugees running away from Mobutu‘s dictatorship. Between Congo and Uganda, there had been tensions since rebels fighting the Museveni regime were known to have sanctuaries in Congo. Given that Uganda supported the southern Sudan separatist, the Khartoum government forged some kind of understanding with Congo to help fuel instability in northern Uganda.168 Examining the history of the eastern provinces of south Kivu might give an insight into the reason why Kabila‘s forces began their assault from there. The Banyamulenge, a Tutsi population that moved into the province about 200 years ago, and a prosperous cattle ranchers and traders, had become a target of political xenophobia when the Mobutu government stripped them of their citizenship in 1981 and declared them refugees.169 The hatred against the Tutsi community reached its height in 1996 when politicians and administrators threatened to expel all the foreigners from Congo.170 The announcement by the governor of south Kivu on October 7, 1996, that all the Banyamulenge had to leave Congo within one week was rendered in the wake of inter-ethnic conflicts in the area that flowed from events that had occurred in Rwanda two years earlier.171 When the Tutsi dominated government took over power in Rwanda in 1994, the Hutu extremists who had perpetrated the genocidal war against them, moved into Congo. While there, they launched attacks against the Banyamulenge groups in Congo.172 The inter-tribal fighting that ensued among the refugee community attracted international attention and in November 1996, the United Nations Security Council passed a resolution for a ―temporary multinational force‖ that would help create a ―safe corridor‖ for the deliverance of humanitarian goods and services.173 The resolution did not deal with the real problems of the region. Thus, violent reprisals between the Hutu genocidaires and the Tutsis—both in Congo and inside Rwanda— continued. And soon the instability gained a momentum of its own. Amid this chaos, the ADFL was formed, first as a joint force to help protect the Tutsis from the Hutu groups that had moved into Congo, and later as a viable military organization with national ambitions. Initially, it 168. Osita Afoaku, Congo Rebels: Their Origins, Motivations and Strategies, in AFRICAN STAKES OF THE CONGO WAR, supra note 51, at 109, 121. 169. This was done by the passing of the Citizens Act in 1981. See MAMDANI, supra note 49, at 244. 170. See Carayannis, supra note 8, at 238. 171. See Dunn, supra note 51, at 55-56. 172. See Paul S. Orogun, Crisis of Government, Ethnic Schisms, Civil War, and Regional Destabilization of the Democratic Republic of Congo, 165 WORLD AFF. 25, 29 (2002). 173. See G.A. Res. 1080, ¶ 3, U.N. Doc. S/RES/1080 (Nov. 15, 1996). Fall 2006] The War in Congo 137 attacked the Hutu refugee camps, sending a majority of the Hutus refugee community back into Rwanda.174 Later ADFL expanded into a multi-ethnic organization and began to pursue wider interests. Among the groups that joined it were the People‘s Revolutionary Party, headed by Laurent Kabila; the Peoples Democratic Alliance, headed by Deogratias Bugera, (representing Congolese Tutsis, including the Banyamulenge and the Nayamasisi from North and South Kivu); the Revolutionary Movement for the Liberation of Zaire, headed by Anselme Masasu Nindaga (a Bashi); and the National Democratic Resistance, headed by Andre Kisase Ngandu. Rebel groups representing the Luba from Shaba, the Lumba from Lubumbashi, and the Bashi from South Kivu also joined the coalition.175 Furthermore, many deserters from the Zairean army joined the ADFL, further broadening its ethnic representation. Kabila was named the spokesperson, and Kisase Ngandu, its military commander. But Kisase Ngandu later ―died in mysteriuos circumstances[.]‖ Kabila then became president, Bugera the secretary general and Masasu the military commander.176 Some analysts believe that Rwanda‘s support of Laurent Kabila in the war to oust Mobutu was because of its own security.177 They observe that Rwanda believed that by removing Mobutu, they would be able ―to crush the Interahamwe and the ex-FAR bandits‖ and thus, ―safeguard its territorial integrity and political sovereignty as an independent nation-state.‖178 This could have been the trigger, but behind it was a grandiose economic plan that targeted Congo‘s mineral resources. After AFDL was formed, it incorporated Banque de Commerce du Developpement et de l‘Industrie (BCDI) to operate most of its transactions.179 The bank was headquartered in Kigali, Rwanda and its main shareholders were ―[m]embers of top leaders in the Rwandan Patriotic Army.‖180 As for Uganda, analysts point to the existence of Allied Democratic Forces (ADF) and allied democratic movement (ADM) forces present in Zaire who had received support from Sudan government to destabilize northern Uganda.181 Allegedly the ADM/ADF alliance had issued a communique in November 1996 outlining the purpose to ―reintroduce multi-party politics in Uganda, stop Museveni‘s See Carayannis, supra note 8, at 239. See THE CONGO, supra note 14, at 225. THE CONGO, supra note 14, at 225-226. See Orogun, supra note 172, at 29. Id. Dena Montague, Stolen Goods: Coltan and Conflict in the Democratic Republic of Congo, XXII SAIS REVIEW 103, 106 (2002). 180. Id. 181. See generally Gerard Prunier, Rebel Movements and Proxy Warfare: Uganda, Sudan and the Congo (1986-1999), 103 AFR. AFF. 359 (2004). 174. 175. 176. 177. 178. 179. 138 Gonzaga Journal of International Law [Vol. 10:2 nepotism‘‖ and to re-establish cordial relationship with Uganda‘s neighbours.‖182 By this time, Ugandan forces were fighting in Zaire already. Asked whether Ugandan military were in Zaire, Museveni vehemently denied it, declaring that those fighting Mobutu were the Zairean dissident groups, ―Lumumbists, the Tshombe group, Muleles groups and others. They are the ones who have taken up arms.‖183 Uganda too, had plans of benefiting from Congo‘s wealth which became even more pronounced after Mobutu‘s removal. 2. A Fractured Mobutu Regime The Mobutu regime, characterized by ―economic mismanagement, petrifiction of autonomous society, manipulation of ethnic schisms, impunity, and erosion of institutional structures of the state[,]‖184 wobbled through the years, often relying on powerful western nations to paralyze its internal and external detractors. However, by the late 1980s western governments had begun distancing themselves from him. Lack of external support and corruption completely shattered the country‘s economy. Without enough cash to support the opulence of his generals and to pay the soldiers, the internal strain on his leadership began to emerge. In September 1991, his army rioted which was followed by widespread lawlessness and looting in Kinshasa.185 Scores of city residents were killed and many foreign nations evacuated their nationals. The riot ended when Mobutu announced a 2,000 percent pay raise for civil servants.186 However, it signaled the beginning of a tumultuous political period for his regime. He scrambled to introduce multiparty politics and even appointed Etienne Tshisekedi Prime Minister in October.187 But this arrangement did not last long, since the military and other constituencies that favored the authoritarian regime were aptly opposed to it. The Prime Minister was fired a few days after taking office and another appointed. Eventually the government lost direction and its downward spiral began. The Mobutu regime became a shaky edifice with no domestic support, waiting to be pushed off from the reigns of power. Thus, Mobutu became prey to all the vultures that had been on the fence waiting for their moment to strike. These vultures forged alliances with the global and regional networks that were sympathetic to their cause and quickly pacified all organs of state, including the army and sent Mobutu scurrying for safety abroad. 182. 183. 184. 185. 186. 187. Id. at 375. Id. 375-76. See Orogun, supra note 172, at 25. See EDGERTON, supra note 47, at 219. Id. See THE CONGO, supra note 14, at 189. Fall 2006] The War in Congo 139 The thesis that regime weakness leads to state collapse has been advanced by many scholars.188 However, in the case of Congo, it is critical to realize that the state had ceased to exist, at least in the Weberian sense, long before its challengers and their external backers began their advance in 1996. But the ‗weakness‘ in Congo‘s case must be understood in terms of the changed international structure that conjured new expectations and brought new actors into the scene. Similarly, new centers of power emerged, with the concomitance of internal frictions in the national government and divergent political alliance. Parallel political authorities—warlords, kingdoms, new religious groups—often make stronger claims on obedience than do nationstates and compete with nation-states as centers of revenue collection and regulation. Pervasive personal insecurity, a result of the spread of cheap and therefore ―democratic‖ weaponry such as grenades, AK-47s, and land mines, undermines norms that support savings, maintenance, and investment. At issue in these cases is not policy per se but the very existence of states.189 One might even argue that the transnational character of the campaign against Mobutu was in itself an indicator of the diminution of the strength of his regime. His weakness was really the aggregate of the diversionary interest on the part of those networks that had sustained his corrupt autocratic rule. For on his own, he could never have survived the early revolts by Lumumbists such as Pierre Mulele and Gbenye, the Simba uprisings of 1965, and even the internal fissures within his own ruling oligarchy. Now, these forces that he had fought successfully before were teaming with his former allies to bring him down. 3. The Question of Wealth Control Undeniably, access to vital resources has been a major determinant of foreign policy formulations in many western nations. In the United States for example, resource issues have always assumed a central role in strategic and military planning. During the cold war, a lot of energy was spent in developing military strategies capable of defeating the Soviet Union. Thus, resource issues may have been obscured. But, its prominence was not completely diminished. Now that the Soviet Union is no longer a threat, United States‘ policy towards resource monopolization has become bolder 188. See e.g., SAMUEL P. HUNTINGTON, POLITICAL ORDER IN CHANGING SOCIETIES (1968); CHARLES TILLY, FROM MOBILIZATION TO REVOLUTION (1978); Ted Robert Gurr, Theories of Political Violence and Revolution in the Third World, in CONFLICT RESOLUTION IN AFRICA 153, 158-59 (Francis M. Deng & I. William Zartman eds., 1991). 189. Jennifer A. Widner, States and Statelessness in Late Twentieth-Century Africa, 124 DAEDALUS 129 (1995). 140 Gonzaga Journal of International Law [Vol. 10:2 and sometimes even blatant. The so called ―national security‖ is seen to depend ―on the successful engagement in the global economy.‖190 Michael Klare in his recent book Resource Wars: The New Landscape of Global Conflict, has detailed how US foreign policy has and will continue to be dictated by resource issues.191 He writes, As the American economy grows and U.S. industries come to rely more on imported supplies of critical materials, the protection of global resource flows is becoming an increasingly prominent feature of American security policy. This is evident not only in the geographic dimensions of strategy—the growing emphasis on military operations in the Persian Gulf, the Caspian, and other energy-producing areas—but also in its operational aspects.192 The fusion of security and resource accessibility has seen a marked increase in military activity. Ethnic schism and religious fundamentalism are mere external expressions of ‗economism‘ that finds ready converts and inspires ruthless anger. The war in Sierra Leone was about diamonds; the wars Iraq and Angola are about oil; and in Congo, it is a naked race for minerals. Thus, it is safe to argue that it is not the ‗clash of civilizations‘ that is rendering violence and conflict, but resource competition.193 And because it is the developed countries in the north that have power to access and alienate resources, especially those in the less developed countries of Africa, some analyst have called it a new form of colonization. One only has to look at the list of American corporations wheeling and dealing in Congo at the height of the war to understand how competition for resources has become, and will still be an anathema to peace. The list includes, ―America Mineral Fields, once headquartered in former President Bill Clinton‘s hometown of Hope, Arkansas, and the Barrick Gold Corporation of Canada, which until recently listed former President George H. W. Bush on its international advisory board.‖194 The corporations follow the trails of the military very closely. Before the Rwandan and Ugandan forces crossed into Congo to fight against Kabila, ―U.S. Special Forces maintained a 190. National Defense University (NDU), Institute for National Security Studies (INSS) Strategic Assessment 1999, at 30 (1999), available at http://www.ndu.edu/inss/Stategic%20A ssessments/sa99/02.pdf; see also THEODORE H. MORAN, AMERICAN ECONOMIC POLICY AND NATIONAL SECURITY (1993). 191. See generally MICHAEL T. KLARE, RESOURCE WARS: THE NEW LANDSCAPE OF GLOBAL CONFLICT (2001). 192. Id. at 6. 193. For the clash of civilization theory, see Samuel P. Huntington, The Clash of Civilizations?, 72 FOREIGN AFF. 22 (1993). 194. Adam Hochschild, The Dark Heart of Mineral Exploitation Congo Back on the Brink II, INT‘L HERALD TRIB., Dec. 24, 2004, at 6. Fall 2006] The War in Congo 141 visible presence‖ on the Rwandan side of the border.195 This was a clear indication of the US policy to help remove Kabila from power by force. A World Bank official summed up US involvement in Congo as follows, We are seeing a new colonization in Africa . . . and it‘s by American speculators with minimum cash/maximum profit ventures based on short-term, low-risk exit plans. U.S. political and military muscle is being used to facilitate the rape of Africa‘s resources by American multi-nationals backed by both Democratic and Republican heavyweights.196 The history of Congo reveals a consistent pattern of meddling by foreign nations as they compete for its wealth that has in turn generated certain sets of circumstances conducive to war. It is not just those regional states which were physically involved in the war that we are talking about here, but the wider picture that encompasses the entire grid of powerful nations that have always used the African nations as clients. For example, almost all African countries who were involved in the Congo had obtained military assistance and purchased weapons from the United States. According to the World Policy Institute report, it was the weapons supplied by the United States that were fueling aggression and inflicting death and human suffering in the region. In 1998 alone, U.S. weapons to Africa totaled $12.5 million, including substantial deliveries to Chad, Namibia, and Zimbabweall now backing Kabila. On the rebel side, Uganda, received nearly $1.5 million in weaponry over the past two years, and Rwanda was importing U.S. weapons as late as 1993 (one year before the brutal genocide erupted). U.S. military transfers in the form of direct government-to-government weapons deliveries, commercial sales, and IMET training to the states directly involved has totaled more than $125 million since the end of the Cold War.197 The involvements of Belgium, France, United United Nations were cataclysmic in many other abandonment of Rwanda at the height of its political often cited. But behind these foreign nations States and even the respects, too. The instability in 1994 is were the invisible Dunn, supra note 51, at 65. WAYNE MADSEN, GENOCIDE AND COVERT OPERATIONS IN AFRICA 1993-1999 477-78 (1999). 197. William D. Hartung & Bridget Moix, Deadly Legacy: U.S. Arms to Africa and the Congo War (World Policy Institute, Jan. 2000), available at http://www.worldpolicy.org/proje cts/arms/reports/congo.htm. 195. 196. 142 Gonzaga Journal of International Law [Vol. 10:2 transnational networks that were dictating policies and reaping the conflict benefits. The picture emerges of a linkage of regional dynamics to the international conglomerate of companies, trade patterns and even to the top most political spectrum in the developed nations. Complexity of mapping these interests, given that much information is held under secrecy, and the fact too, that a great deal of what went down in smuggling and other shadow business interactions were never documented, the whole specter of internationalism in the Congo may be rendered the greatest dilemma of history. However, looking at the behavior of the actors on the scene and studying their modus operandi, a veritable picture of a scramble for resources emerges; a poignant revelation that wealth and security are intractably interlinked. According to Klare, it will no longer be ―possible to explain the dynamics of global security affairs without recognizing the pivotal importance of resource competition.‖198 4. The War and the Ineffective Peace Process It is worth while to note that the United States, Belgium and France who had played in a key role in the early internal wars in Congo, especially those against the remnants of Lumumba supporters, had distanced themselves from Mobutu by the 1980s. Thus, when Kabila‘s ADFL army began its campaign in 1996, capturing Bukavu and Goma by November 1996, the tottering Mobutu regime had nobody to turn to except sympathetic African leaders like Daniel Arap Moi of Kenya, himself an accomplished dictator. The ailing Mobutu was at the time in Switzerland undergoing treatment for prostate cancer. The Moi initiative which was the very first African diplomatic attempt to reconcile the warring parties convened a summit in Nairobi under the auspices of the OAU on November 5, 1996. This summit paved way for another meeting convened six weeks later that brought together delegations from Cameroon, Tanzania, Uganda, Zambia, Zimbabwe, Eritrea, Ethiopia and South Africa. Not much was accomplished except that the delegation supported a renewed effort by Moi and Nelson Mandela to open negotiation between Mobutu and Kabila. They also urged the parties to stop fighting and allow for negotiations based on a power sharing arrangement. Mobutu came back to Zaire at the end of 1996 and immediately declared war against ADFL. This not only undermined the Nairobi peace process, but created uncertainty as to the future of the nation; an atmosphere that lent legitimacy of sorts to the externally backed ADFL forces and made them intensify their campaign. Mobutu hired white mercenaries from Europe and Russia to fight alongside the Zairian army.199 Also, he got help 198. 199. KLARE, supra note 191, at 14. EDGERTON, supra note 47, at 220. Fall 2006] The War in Congo 143 from Jonas Savimbi of UNITA, a rebel leader who Mobutu had supported in his secessionist war against the government of Angola. While the fighting continued, African leaders and the Organization of African Unity (OAU) made efforts to mediate the conflict and bring Mobutu and Kabila to agree to a power sharing arrangement. Moi met with Mobutu in February 1997 but was not successful in forging any understanding as to the possibility of a cease fire. With the humanitarian conditions deteriorating and various NGOs in the region keeping the plight of the citizens in the international agenda, the United Nations Security Council met on February 18 and endorsed a five-point peace plan for eastern Zaire.200 The plan called for the: [i]mmediate cessation of hostilities; [the] [w]ithdrawal of all [foreign]...forces, including mercenaries; [the] [r]eaffirmation of respect for the national sovereignty and the territorial integrity of Zaire and other States of the Great Lakes region; [the] protection and security for all refugees and displaced persons and facilitation of access to humanitarian assistance; [and the] [r]apid and peaceful settlement of the crisis through dialogue, the electoral process and the convening of an international conference on peace, security and development in the Great Lakes region.201 The United Nations also dispatched a representative, Mohammed Sahnoun, an Algerian national, to the region to help promote a peaceful settlement of the conflict and prepare a conference for peace and development. On March 7, 1997, the United Nations Security Council president issued a statement confirming Mobutu‘s acceptance of the fivepoint peace plan but lamented the ADFL refusal to do the same.202 In the meantime, fighting continued. On March 23, 1997, ADFL captured Kisangani. With the fall of Kinshasa now eminent, the South African then deputy president, Thabo Mbeki, met with Mobutu in Kinshasa on March 23 and also with ADFL representatives a few days later but no settlement was reached. But South Africa, widely believed to have the support of the United States, exerted more pressure. On May 2, Mandela succeeded in bringing Mobutu and Kabila to the South African warship, Outeniqua, in international waters off Point Noire, Congo-Brazzaville. In this meeting South Africa and the United States attempted to impress upon the belligerents a plan which would offer Mobutu a safe exit and Kabila a transitional arrangement that would incorporate all elements of Zairian S.C. Res. 1097, U.N. Doc. S/RES/1097 (Feb. 18, 1997). Id. at § 1. Press Release, Security Council, Security Council Welcomes Zaire‘s Acceptance, OAU Endorsement of Peace Plan for Eastern Zaire, U.N. Doc. SC/6336 (March 7, 1997). 200. 201. 202. 144 Gonzaga Journal of International Law [Vol. 10:2 opposition.203 In response to the South African peace overture, Kabila publicly announced that Mobutu had to step down before any negotiations could take place. However, he agreed to send representatives to Pretoria for a secret negotiation whose outcome was never made public. Meanwhile, Mobutu, believing that his regime could survive if he enlisted the help of the opposition, appointed his long-time rival and leader of the opposition, Etienne Tshisekedi, to the post of Prime Minister.204 But Tshisekedi immediately dissolved the Mobutu cabinet and invited Kabila and his ADFL group to join the new government. Mobutu, displeased by such a move, immediately fired Tshisekedi a week later and appointed General Likulia Bolongo the new Prime Minister.205 Technically, this move placed Zaire under military rule. By then it was too late. ADFL captured Lumbumbashi, capital of the mineral-rich Katanga Province, on April 10, 1997, and Kinshasa on May 17 of the same year, thereby putting paid to the thirty long years of Mobutuism. Mobutu fled to Rabat, Morocco, where he died on September 7, 1997.206 B. The Kabila Regime and Botched Expectations The short-lived Kabila regime exemplified yet again the contradictory forces at work in the making and sustaining of Congo‘s civil war. For the external power wielders it was a question of balancing the books. They had propped Kabila and given him leadership, and now it was time to reap the benefits. But Kabila, once in office, seemed to have acquired a mind of his own, a political twist which certainly contradicted the expectations of United States and its surrogate governments in Kampala and Kigali. Kabila‘s minor transgressions of eliminating rivals, even those who, like Masasu Nindaga and Bugera, had fought with him against Mobutu, could be ignored.207 But when he committed the ultimate sin of reneging on contracts and promises he had made to foreign investors, his exit became just a matter of time. The Wall Street Journal stated that Kabila had ―alienated potential foreign investors, especially the crucial mining sector, by making deals and then breaking them.‖208 The enormity of Kabila‘s treachery can be discerned from the unfolding just before he came to power. 203. See Chris Landsberg, The Impossible Neutrality: South Africa’s Policy in the Congo War, in AFRICAN STAKES OF THE CONGO WAR, supra note 51, at 172. 204. See Peter Rosenblum, End Game in Zaire, CURRENT HISTORY, May 1997, at 200, 205. 205. Id. 206. EDGERTON, supra note 47, at 221. 207. Bugera was forced back to flee back to Rwanda. Masasu was not so lucky. When he fell out of favor with Kabila in 1998, he was arrested and later executed in Katanga. See Thomas Turner, The Kabila Congo, CURRENT HISTORY, May 2001, at 216. 208. Robert Block, Fighting in Congo, Angola Undercuts Kabila’s Power, WALL ST. J., Aug. 5, 1998, at A12. Fall 2006] The War in Congo 145 A few weeks before and immediately after AFDL‘s success in removing Mobutu, multinational companies backed by their governments had began jostling for mineral concessions in Congo. For example, Jean-Raymond Boule, the president of American Mineral Fields Corporation, loaned Kabila his executive jet to enable the new leader to tour towns that had fallen under the authority of the AFDL.209 Betchel Corporation assisted Kabila with ―some of the most complete mineralogical and geographical data of the former Zaire ever assembled, information (sic) worth a fortune to any prospective mineral or oil firm.‖210 In April 1997, just as ADFL was settling in Kinshasha, the same company concluded a one million dollar deal with Kabila to extract copper, cobalt and zinc in Katanga.211 Others included the South African company, Genscor, for the exploitation of copper and cobalt at Tenke-Fungurume; Barrick Gold Corporation of Canada for gold in Kilo Moto; and Banro Resources Corporation for prospecting in Kivu. The Consolidated Eurocan Ventures of the Lundin Group of Vancouver, Canada, while in competition with South Africa‘s Genscor, concluded an investment deal worth $1.5 billion, with Kabila to receive $50 million initially and an additional $200 million paid out over four years.212 But Kabila, having pocketed some of the money, botched all these agreements and created instead a national exchange office for all raw materials.213 He also attempted to limit the foreign access to mineral resources indicating his government‘s inclination towards nationalization. As for the foreign debt of $ 9.6 million which he inherited from the former regime, Kabila showed every reluctance to begin repayment. All these earned him utter contempt from the western nations and eventually proved to be his Waterloo. The plot to assassinate Kabila hatched by Bugera, the former secretary general of ADFL, in February 1998 with the blessing of Rwanda and Uganda did not succeed. However, it fed into the atmosphere of mistrust and acrimony that had developed between Kabila and his two neighbors, Rwanda and Uganda. One analyst has summarized it thusly: They had hoped to find Laurent Kabila and the ADFL a useful cover for their strategic interest in creating a buffer zone of economic and political security in eastern Congo. Since Kabila had not lived up to their expectation Rwanda and Uganda were THE CONGO, supra note 14, at 237. See Robert Block, US Firms Seek Deals in Central Africa, WALL ST. J., Oct. 14, 1997, at A17. 211. See Braeckman, supra note 156, at 15. 212. THE CONGO, supra note 14, at 236-237. 213. See Braeckman, supra note 156, at 15. 209. 210. 146 Gonzaga Journal of International Law [Vol. 10:2 determined to find a new Congolese puppet, to fulfill their desire for having ‗another Bizumungu (puppet leader) in Kinshasha‘.214 On July 27, 1998, Kabila repatriated a bunch of Tutsi soldiers back to Rwanda blaming them for the instability in his government.215 That led to riots in parts of eastern Congo, especially in Goma and Kisangani. The riots and conditions of instability around the eastern borders provided Rwanda and Uganda the pretext to assemble military opposition against Kabila. The presence of United States military personnel in Rwanda may have been the boost that Rwanda needed to carry out its imperialist ventures.216 Moreover, it is an open secret that Rwandan forces had crossed well into Congo before its sponsored rebel outfit, the Rassemblement Congolais pour la Démocracie (RCD) was even formed. The group came into existence on August 20, 1998 and Ernest Wamba-dia-wamba was installed as its leader. Wamba himself was later ousted on May 16, 1999 by a majority of RCD members and he formed a rival faction, Rassemblement Congolais pour la Démocratie-Kisangani (RCD-K) and relocated to Bunia.217 Thus, the war that started in August 2, 1998 was not a civil war, but an illegal invasion by Uganda and Rwanda into the territory of Congo. It became a civil war much later. Initially, Uganda backed the Reissemblment Congolais pour la Démocratie-Mouvement de Liberation (RCD-ML), but soon abandoned it when it realized that the faction had no grass root support. Then, it helped create another faction called the Mouvement de Liberation du Congo (MCL) in November 1998 and installed Jean-Pierre Bemba, one of the richest men from the Mobutu era, as its leader. MCL operated in the Northern Equateur Province and appeared to enjoy local support.218 Uganda‘s pretext for joining the war was that Kabila had failed to stop incursions of Hutu extremists into its territory. The truth however, is that both Rwanda and Uganda had stolen a moment from the unwatchful eye of the United Nations and the Organization of African Unity, to exploit the riches of minerals in Congo. The security claim rung hollow, like it did in 1996, and was perhaps meant to obscure their real interests. Considering that the two countries established little ―spheres of influence‖ within the territory of Congo and appointed local leaders to conduct illegal mineral trading on their behalf, their economic interests were obvious. In some places, Rwanda even ―awarded mining concessions for rare minerals such 214. 215. 216. 217. 218. THE CONGO, supra note 14, at 227 (emphasis and explanatory phrase added). Carayannis, supra note 8, at 242. See Milan Vesely, Carving Up the Congo, AFRICAN BUSINESS, Oct. 1998, at 12. THE CONGO, supra note 14, at 230. See Francois Misser, Congo Behind Rebel Lines, NEW AFRICAN, Sep. 2000, at 24. Fall 2006] The War in Congo 147 as niobium and tantalum . . . to foreign firms.‖219 The tragedy of invasion and plunder which had occurred in this part of Africa can only be compared to Iraq‘s illegal invasion of Kuwait in 1990 in which the United States used its military power to stop. While it may be true that Kabila lacked vision, was corrupt just like Mobutu, and may have accentuated the dominance of his ethnic southerners while encouraging pogroms against minority Tutsis,220 the weakness of his regime was not the cause of the war that broke out in August of 1998. Largely this was an external affair designed and carried out by the support and direction of Uganda and Rwanda with moral acquiescence of the United States. It is worthwhile to note that Kabila, or any Congolese leader for that matter, could never reconcile the interests of these external forces with the task of unifying his nation, especially with the mess that the former regime had created. The split between Kabila and his foreign sponsors may have been inevitable since any Congolese leader would have sought popular legitimacy, an effort that would have necessitated establishing some distance from foreign, especially military present, sponsors. Indeed, public opinion surveys conducted by a local polling group, BERCI, in Kinshasa during 1997 and 1998 show that the Rwandan presence was profoundly unpopular and that Kabila‘s popularity skyrocketed when he ousted the Rwandans.221 C. Asserting Sovereignty and Territorial Integrity There was absolutely no chance that the Kabila regime could withstand the joint assault from Ugandan and Rwandan backed rebel forces advancing from the eastern border, and another stream of rebels coming in from the eastern areas of Cabinda enclave. And with the proliferation of Rebel groups, all seeking to remove him from office and destabilize ADFL hold on mining areas, Kabila hold of power became very tenuous. At first he began to revamp the national army, Force Armée Congolaise (FAC) by removing elements of Tutsi sympathizers. But the fragmented FAC was still not capable of resisting any form of external aggression. Thus, Kabila mortgaged his country‘s resources to get security services from a South African mercenary firm, Executive Outcomes, which had been very THE CONGO, supra note 14, at 237. His interior minister Gaetan Kakudji and his justice minister, Mwenze Kongolo were his cousins, his son Joseph, who was to succeed him after his assassination in 2001, was the deputy chief of all armed forces. There were reports of large sums of money deposited in foreign banks. See Martin McLaughlin, Anti-Kabila Uprising in Eastern Congo, WORLD SOCIALIST WEB SITE, (August 7, 1998), available at http://www.wsws.org/news/1998/aug199 8/cong-a07.shtml. 221. Carayannis, supra note 8, at 242. 219. 220. 148 Gonzaga Journal of International Law [Vol. 10:2 successful in Sierra Leone.222 The company was to protect the ―strategic Inga dam, south west of Kinshasa . . . .‖223 But this proved ineffective as well. Alienated from western support, Kabila tried a number of options to protect his regime and the sovereignty of his country which we shall discuss here. It is worthwhile to note that some of these options sunk Congo deep into war instead of creating the much needed peace. This is because resentment for Kabila had become so entrenched that nothing short of his removal could satisfy the power wielders. 1. Alliance of Friendly Nations On August 19, 1998, Kabila met with representatives of members of the Southern African Development Community (SADC) nations of Namibia, Zimbabwe and Angola in Harare and secured their support in the war. Although SADC members are bound by a mutual defense treaty in the face of external aggression, some members, notably South Africa, refused to join the war. Despite holding the chair to SADC, South Africa even refused to condemn the Rwandan and Ugandan aggression, a fact which drew skepticism as to its motives.224 Kabila, Mugabe, Sam Nujoma and Dos Santos immediately accused South Africa of promoting ―regional apartheid policies.‖225 Kabila must have seen this as the extension of United States policy to alienate him. It left Angola, Zimbabwe, and Namibia to help defend Congo‘s sovereignty. But the involvement of these nations was not propelled by benevolence or the desire to uphold international law only. Their interest could have been close to those of Rwanda and Uganda, except that in their case, they came in on the invitation of the host government. Zimbabwe‘s involvement, especially, has met the most criticism from the international community. Some have even argued that Zimbabwean soldiers were merely fighting for Mugabe‘s bank account.226 The speculation is not unfounded. Earlier, Mugabe had signed a $200 million contract with Kabila involving Zimbabwean corporations mainly owned by members of his family. The Financial Times put it this way: Mr. Mugabe and his ministers also needed to protect their commercial interests in the Congo. Several Zimbabwean companies, including state-owned Zimbabwe Defense Industries 222. See Chris Talbot, Private Armies Involved in the Congo War, WORLD SOCIALIST WEB SITE (Sept. 2, 1998), at http://www.wsws.org/news/1998/sep1998/cong-s02.shtml. 223. Id. 224. See Landsberg, supra note 203, at 174. 225. Id. (quoting Steven Friedman, Claude Kabemba, Chris Landsberg, Maxine Reitzes, Zondi Masiza, State of Anxiety? Reconstructuring the State, Democratization, and Economic Growth in Southern Africa 14 (April 1999) (unpublished paper, Centre for Policy Studies at Johannesburg)) (internal quotations omitted). 226. See Orogon, supra note 172, at 37. Fall 2006] The War in Congo 149 and private groups controlled by senior officials and army officers, are owed money by the Kabila regime for the supply of weapons, fuel and other equipment. Zimbabweans furthermore, are exporting Congolese cobalt and probably diamonds.227 As for Angola, its own history of civil war explains it all. During the 1996 war against Mobutu, Angola helped Kabila root elements of proMobutu out of Katanga. Then, as Braeckman explains, its motivation was the deep seated desire to destroy Savimbi‘s secret army and to break up the networks by which he disposed of diamonds.228 Angola had hoped that the regime after Mobutu would be less inclined to reopen such avenues. In the current impasse, there were political reasons associated with Savimbi‘s reported visit to Kampala and Antinio Dembo, UNITA‘s Vice President‘s visit to Kigali.229 The ideological implication and the need to cut UNITA‘s supply lines became the most important factors that brought Angola into the Congo‘s territory to fight against the Rwanda and Ugandan backed rebels. Though its involvement was modest, just about 2,000 to 2,500 troops, it rescued the besieged Kabila regime in Kinshasa from ultimate attack and ouster by rebel forces. According to The Guardian of September 11, 1998, the Angolan forces, deployed to the west of Kinshasa had prevented ―the rebels from reaching the capital and ousting Kabila.‖230 Angola, like the rest of the others has also been economically and lucratively rewarded for its participation in the war.231 Its generals acquired interest in the diamond industry. The International Crisis Group has also claimed that Angola gained control of about 620 miles of Atlantic sea board as a boost to its oil industry.232 Unlike Zimbabwe and Angola, Namibia was a minor player. Although President Sam Nujoma had unequivocally supported the protection of Congo‘s sovereignty, there were key strategic reasons that we cannot overlook. Scholars have hinted to geopolitical as well economic reasons. Orogon points to Nujoma‘s long time plan to divert the waters of the Congo through Angola into northern parts of Namibia.233 The president proclaimed that Namibian troops were in Congo to safeguard ―Namibia‘s future 227. Victor Mallet, Mugabe Risks All in Secret War, FIN. TIMES, Mar. 27, 1999, (London), at 5. 228. Collette Braeckman, L’Enjeu Congolais 261 cited in Thomas Turner, Angola’s Role in Congo War, in AFRICAN STAKES OF THE CONGO WAR, supra note 14, at 75, 81. 229. Id. at 85. 230. See Chris Gordon, Uganda‘s Angolan key to Congo, Electronic Mail and Guardian, 11 September 1998 at 1. 231. AFRICAN STAKES OF THE CONGO WAR, supra note 14, at 85. 232. Id. at 87. 233. Orogun supra note 172, at 36. 150 Gonzaga Journal of International Law [Vol. 10:2 security.‖234 At the same time Namibian officials indicated that there troops might remain in Congo until UN peacekeeping forces were in place.235 2. Peace Process The dearth of the United Nations response, perhaps accentuated by the dilemma of dealing with the vested interests of powerful nations ensconced in the Ugandan and Rwandan imperialist moves in Congo, prompted a rather curious involvement of African nations through the aegis of the Organization of African Unity (OAU), as well as the regional organization, SADC. The pressure to find a peaceful solution to the conflict emanated from the mutual concern for protecting Congo‘s territorial integrity and its sovereignty. An argument could very well be made that for a country like South Africa, the question of protecting Congo‘s sovereignty hinged, not so much on the need to protect the feeble regime of Laurent Kabila from its external detractors, but on affirming the principle of territorial sovereignty as a benchmark for ensuring peaceful coexistence of state parties to the United Nations Charter. But as we have already shown, there were other strategic reasons, as well. For others, the internal war in Congo had become a regional menace, affecting them in different ways. Even those not within SADC and not officially in the war, such as Congo Brazzaville, Kenya and Tanzania, were feeling the pressure of refugees and influx of arms. The initial efforts by OAU and a team of African leaders had culminated in meetings at Addis Ababa, Ethiopia in 1998 and Sirte, Libya in April 1999, both of which called for cease-fire and deployment of African peace keeping arrangements, but neither of which were implemented.236 The momentum for peace also arose from the ‗hurting stalemate‘ scenario that the belligerents were beginning to experience. The involvement of Namibia, Angola and Zimbabwe had stalemated the war: the rebels could not quickly capture Kinshasa as they had hoped, and Kabila lost control of the rich mineral areas of eastern Congo. But Kabila was still recognized as the official leader of the Congo government by the UN, SADC, OAU, and the European Union.237 The UN Secretary General, Kofi Annan, had even expressed concerns about the possible violations of Congo‘s sovereignty and territorial integrity.238 With the UN showing interest in the resolution of the conflict and taking an active role in seeking adherence and respect of international norms, the odds were against the invaders and diplomacy 234. Tabby Moyo & Lewis Machipisia, DR Congo: Demands to withdraw Troops Anger Zimbabwe and Namibia, World News: Inter Press Service, Sept. 18, 1998 cited in Paul S Orogun supra note 172 at 35. 235. Id. 236. AFRICAN STAKES OF THE CONGO WAR, supra note 44, at 192. 237. See Afoaku, supra note 168,at 122. 238. Id. Fall 2006] The War in Congo 151 seemed to offer the best chance of removing Kabila. The disputants became amenable to peace negotiations, but still in pursuance of divergent goals. However, credit must be given to the then president of Zambia, Fredrick Chiluba and his SADC counterparts, for their excellent diplomatic moves that secured the attendance of the belligerent groups to the Lusaka conference in July 1999.239 a. The Lusaka Peace Accord of July 1999 The Lusaka Accord, which was seen by the international community as a necessary step towards finding lasting peace in the DRC, was signed by the governments of Zimbabwe, Rwanda, DRC and Uganda on July 10, 1999, and by the rebel groups, RCD and MLC, two months later. It had six essential elements.240 The most important was the affirmation of DRC‘s sovereignty in its present frontiers. The accord enunciated an all inclusive political process that would pave the way for the establishment of a new political order. It provided for the creation of a unified army after the ninety-day periods of inter-party dialogue on Congo‘s political feature. Parties also agreed to a corporate security arrangement in the form of joint military commission made of African countries, to monitor the cease-fire. The accord also contained disarmament provisions directed towards all armed groups.241 At the insistence of Rwanda, parties to the Accord agreed to the arrest of all suspected Hutu militias who had taken part in the 1994 genocide and their subsequent delivery to the International Criminal Tribunal in Arusha, Tanzania. The Accord called for the withdrawal of all foreign forces from the DRC and invited the deployment of UN‘s peace keeping forces to oversee the implementation of the agreement. Soon after the Accord, the joint commission was established and was comprised of ministers from six nations involved in the war. Salim Ahmed, the then Secretary General of the defunct OAU, appointed Rachid Lallali to be the chairman of the Commission. On August 6, 1999, the United Nations Security Council passed a resolution authorizing the deployment of military liaison personnel and other necessary officials to the Democratic Republic of Congo ―to assist in the development of modalities for the implementation of a cease fire agreement‖ negotiated between the government of the late 239. See Jos Havermans, Africa‘s Most Worrying BattleField, in SEARCHING FOR PEACE IN AFRICA: AN OVERVIEW OF CONFLICT PREVENTION AND MANAGEMENT ACTIVITIES, 237-57 (Monique Mekenkamp, et al eds., 1999). 240. The text of the Accord can be found at http://www.usip.org/library/pa/angola/lusak a_11151994_annex.html See also Filip Reyntjens, Briefing: The Democratic of Congo, from Kabila to Kabila, 100 African Affairs 313 (2001). 241. The Accord identified these groups as the Rwandan ex-FAR and Intarahamwe, The Ugandan Allied Democratic Forces (ADF), Lords Resistance Army (LRA), West Nile Bank Front (WNBF), Uganda National Rescue Front II (UNRF II), former Ugandan National Army (FUNA), Burundian Forces de Defense Pour la Democratie (FDD), and Angola‘s UNITA. 152 Gonzaga Journal of International Law [Vol. 10:2 Laurent Desire Kabila and a constellation of rebel movements backed by some foreign armies.242 This move was intended to bring the force of the international community to bear upon the belligerents, in particular the nine or so African nations that were directly involved in the war, and convince them to withdraw their forces and allow the peace process enunciated by the terms of the Lusaka Accords to be implemented. It also heralded the establishment of the UN mission in Congo, known by the French acronym MONUC (Mission d‘Organisation Nations Unis au Congo) and the deployment of UN peacekeepers, currently numbering 10,800, to the Congo. Considering the enormity of the problems in Congo, this effort was still ashamedly dismal. However, the UN involvement, though it never changed the course of the conflict immediately, bolstered the chances of seeking incremental accountability from culprit nations and corporations that were looting Congo‘s natural wealth while supplying their local partners with the financial, political and ideological support necessary to sustain the conflict. Living up to the demands of human rights groups and international humanitarian agencies, the UN Security Council in June 2000, authorized the establishment of a panel of experts to the illegal exportation of Congo‘s natural resources.243 The panel was mandated to ―follow up on reports and collect information on all activities of illegal exploitation of natural resources and other forms of wealth of the Democratic republic of Congo.‖244 The focus on Congo‘s minerals by the UN put all those groups that had thrived on the chaos on the alert. Rwanda and Uganda had to rethink their strategy and make them consistent with the agenda for peace. The difficulty of doing this must have created the urgency of removing Kabila from power. But Kabila‘s problems emanated from other quarters, too. His refusal to honor the terms of the Lusaka Accord; what one analyst has termed as obstructionism,245 and the indifference he displayed towards the local political parties exacerbated his problems. He had objected to the terms of the accord that mandated immediate withdrawal of Zimbabwean, Angolan and Namibian forces. In his view, the Accord therefore failed to affirm Congo‘s sovereignty.246 The forces of positive change, together with vested interests of predatory networks, converged to ensure his demise. Like Patrice Lumumba, Laurent Kabila was assassinated on January 16, 2001, by one of his guards in circumstances that implicated external UN Security Council Res. No. 1258 of 1999. See UN Doc SC/7547 Oct. 24, 2002. Id. See Turner, supra note 207, at 213. See Kabila Rejects Lusaka Accord, British Broadcasting Corporation (BBC) Aug. 23, 2000, available at http://www.news.bbc.co.uk/1/hi/world/africa/892679.stm. 242. 243. 244. 245. 246. Fall 2006] The War in Congo 153 interests.247 His son, the thirty-one year-old Joseph Kabila, became president and the supreme commander of all armed forces.248 The young Joseph Kabila seemed to have read the political climate well. Within two weeks of assuming power he set out on a journey to Europe to appease the international community and bring credibility to his regime. He managed to convince the Europeans that he was genuinely interested in peace and that he would protect the interests of foreign investments in Congo. In March 2002, the European Union gave Congo a whooping $28 million to help rehabilitate the country‘s justice system. A further $101 million was set aside to assist in the peace process.249 In November, the International Monetary Fund extended to Congo an unconditional grant of $50 million.250 The young Kabila also saw as a priority the need to acquire legitimacy in the eyes of internal political groups and to mend fences with the African leaders. Indeed, much of what happened in Congo thereafter was due to the efforts of African governments, starting with Botswana‘s former president Ketumile Masire, who was instrumental in staging the very first peace conferences in 2002 and working towards forging the inter-Congolese dialogue that was to become the benchmark for the negotiations at Sun City and the subsequent formation of government of national unity.251 b. The Sun City Agreement April 2002: Towards A Transitional Government A new milestone in the political history of Congo was ushered in on April 19, 2002, when a final act of the agreement setting up a government of national unity was signed at a luxury resort in Sun City, South Africa. The ceremony was witnessed by the South African president, Thabo Mbeki, and the presidents of Botswana, Namibia, Zambia and Zimbabwe. It was a culmination of a process that had begun way back in 1999 at Lusaka. The parties agreed to retain Joseph Kabila as the President and head of government for the transition period of two years. There were to be four vice presidents, one from each of the two rebel movements, one from the political opposition and the other from the government. Government ministries were to be equally divided. Although the agreement provided for the integration of the rebel soldiers into the national army, it did not provide any guidelines as to how the national army would be constituted, a fact that 247. While no credible account is available of how he died, speculation is rife that he could have been killed by his own body guards. Some analysts have credited Rachid Kasereka, a young body guard apparently drawn from his regiment of child soldiers, Kadogo, with the murder. See THE CONGO, supra note 14, at 246. Other accounts have pointed to Angola as having master minded the execution. See id. at 87. 248. EDGERTON, supra note 47, at 232-3. 249. Id. 250. Id. at 241. 251. Id. 154 Gonzaga Journal of International Law [Vol. 10:2 diminished its effectiveness. Also, there were no provisions for the followup organs that would ensure implementation of the agreement. After about two months of political squabbles occasioned by suspicion and inconclusive terms of the joint transitional arrangement, the parties were eventually able to forge some understanding. But this happened through a series of smaller agreements that occurred in the period leading up to June 30, 2003, when the formation of the government of national unity was announced. However, it should be noted that the Sun City Agreement did not stop the fighting. Neither did it stop the Ugandan and Rwandan deployments in Congo. Nevertheless, it had created a momentum for peace negotiations. A lot of consultations and talks went on sporadically in the regions where fighting was going on. The limited avenue of peace that the Sun City Agreement ushered in allowed for the growth of the local civil groups whose voice on Congo‘s political future was now framing part of the national agenda for peace. c. The Pretoria Accord July 2002 The Pretoria Accord was signed against the backdrop of a growing international opprobrium against foreign interference in Congo and willingness on the part of the young Kabila to embrace a plan for regional peace. Under the tutelage of the South African president Thabo Mbeki, representatives of the Congolese government, Uganda and Rwanda met for five days in Pretoria and hammered out an agreement which they signed on July 22, 2002. Under this agreement, Uganda and Rwanda agreed to withdraw their forces from the territory of Congo, if the government in Kinshasa apprehends, disarms and repatriate Hutu extremists and the Interahamwe bandits. The Pretoria accord was followed almost immediately by the Luanda agreement in September 2002. Here, Uganda and Congo agreed to withdraw over 6,000 of their troops from the Ituri region. They also worked out an agreement for the local parties to form a group called Ituri Pacification Committee to take over the administrative and security arrangements. In the meantime, Zimbabwean forces began to pull out on September 13, 2002, from the rich diamond area of Mbuji Mayi in southern Congo. These developments stimulated internal dialogue amongst the many parties that had hitherto wedged a deadly struggle against Kabila. For them, the carpet must have been swept under their feet since their external principals were themselves disposed towards peace. Thus, although there was still fighting in Kasai oriental province between Mayi Mayi militias and the RCD faction, and also in Bunia near the Uganda border, consensus was beginning to emerge that the only way out of the conflict was the formation of a joint transitional government. Overall, local political groups and military units began to realize that ultimately the responsibility for creating Fall 2006] The War in Congo 155 political stability in the country was theirs. As suffering of the peoples ran deep, and displacement became widespread, the external forces and foreign interests that had hitherto supported the war began to distance themselves. Also, human rights violations and international crimes against humanity that may have been committed during the war were becoming real issues for which every group was being forced to confront. The only way out of the impasse was to move forward towards restoring peace. As for the foreign governments involved in Congo, their change of attitude seemed to have been linked to the UN‘s declared opposition to external violation of Congo‘s territorial integrity. In October, the UN‘s appointed panel of experts on the illegal exploitation of natural resources and other wealth of the DRC published a report in which it blamed Uganda and Rwanda, together with a host of multinational corporations, for perpetrating the war and looting Congo‘s natural resources.252 The report brought the activities of these countries in Congo under UN scrutiny and made it almost inevitable that they had to begin a program of disengagement. d. The Gbadolite Agreement December 2002 On December 17, 2002, the government, MLC, RCD, RCD-ML, RCDN, Mai Mai and some civil society groups agreed to a ceasefire and affirmed their commitment to a peaceful transition. The proposal that seemed to get broad support called for legislative and presidential elections within two years after the formation of a transition government. This was followed by another agreement on December 31, 2002, at Gbodolite, mainly between MLC, RCD-N and RCD-ML. All of them agreed to end fighting at the Isiro-Bafwesende-Beni-watsa quadrangle. Notable in this agreement was the invitation of the UN to deploy observers in the area. The combatant groups also agreed to allow free movements of civilians and humanitarian services. On May 1, 2003, Uganda began its withdrawal from Bunia and Ituri regions in line with the Luanda Agreement. On June 30, 2003, Joseph Kabila announced the formation of the government of national unity. Essentially, the government took the ministries of interior and finance; the Rwandan backed RCD the ministry of economy and defense; the Ugandan backed MLC took budget and foreign affairs. The civilian control took the ministry of mining. But fighting still continued in the Kivu Province necessitating a further deployment of 5,900 UN peacekeeping forces in September 2004. As recently as January 2005, the UN announced that 252. See Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of wealth in the Democratic republic of Congo, UN Doc S/2001/357. See also Kabel, supra note 43. 156 Gonzaga Journal of International Law [Vol. 10:2 Uganda and Rwanda were still arming insurgent groups in eastern Congo.253 The conflict has not found a lasting solution. 3. Legal Measures Against a background of political acrimony between the Kabila regime and its two neighbors, Rwanda and Uganda, the former sought judicial intervention of the International Court of Justice (ICJ). On June 23, 1999, Congo instituted proceedings against Uganda at the ICJ alleging ―massive violations of international humanitarian law‖ resulting from ―acts of aggression perpetrated by Rwanda on the territory of the DRC.‖254 Congo not only sought the immediate cessation of these activities, but also the complete withdrawal of Ugandan forces from its territory. It also sought restitution for all the national properties and resources appropriated by Uganda. Article 36(1) of the Statute of the ICJ grants jurisdiction to the court in all cases refereed to it by parties, and regarding all matters especially provided for in the UN Charter or in treaties or conventions in force. Both parties submitted to the jurisdiction of the court. On June 26, 2000, the court heard arguments on Congo‘s request for the indication of provisional measures against Uganda and gave its ruling on July 2, 2000.255 In its ruling, the court observed that the indication for provisional measures can be made in order to preserve the respective rights of the parties pending the decision of the Court, and in circumstances where irreparable prejudice shall not be caused to rights which are the subject of dispute in proceeding and there is extreme urgency.256 Referring to its decision in Land and Maritime Boundary between Cameroon and Nigeria, Provisional Measures,257 the court affirmed its powers to independently indicate provisional measures with a view to ―preventing the aggravation or extension of the dispute whenever it considers that circumstances so require.‖258 Further, while observing that the situation in Congo had been declared by the UN Security Council ―to constitute a threat to international peace and security in the region,‖ the Court affirmed that there was a serious risk that the events occurring in Congo ―might aggravate or extend the dispute or make it more difficult to resolve.‖ The court granted the indication for provisional measures and enjoined the parties to ―take all 253. See UN/S/2005/30 available at http://www.un.org/News/briefings/docs/2005/DRC brf050107.doc.htm. 254. Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) 2000 I.C.J. 111 (July 1). 255. The jurisdiction to make such indication is found on Article 41 of the statute. 256. Id. 257. I.C.J. Reports 1996, pp. 22-23, para. 41. 258. The Court could even infer consent from the unilateral application of a plaintiff state especially if there are some other circumstances that might intimate acceptance of the court‘s jurisdiction. See Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4. (Apr. 9). Fall 2006] The War in Congo 157 measures necessary to respect fundamental human rights and the applicable provisions of humanitarian law, and to prevent their armed forces, or other groups under their authority or control, from taking any action which might prejudice the rights of the other Party in respect of any judgment the Court may render in the case.‖ In April 2005, the parties went back to the Hague for the full hearing of the dispute.259 The judgment of the court is pending. In May 2002, the DRC filed another complaint against Rwanda, the initial one having been discontinued in February 2001.260 The new complaint had similar allegations as those made against Uganda. In this case however, the court declined to issue an indication for provisional measures because it lacked prima facie jurisdiction. But despite Rwanda‘s urging, the court left open the question of jurisdiction as it appertains to the merits of the case. However, the court observed that there was indeed a ―fundamental distinction between the question of the acceptance by a state of the ICJ‘s jurisdiction and the compatibility of particular acts within international law,‖ the distinction being the requirement of consent in the former, and the later being based on the merits of the case adjudged from facts adduced and the legal arguments made at the hearing. Thus, it declined to remove the case from the list altogether as had been requested by Rwanda. The main hearing began on the July 4, 2005, and was concluded on July 8. The judgment is yet to be made. PART THREE VI. LEGACY OF THE WAR AND THE MURKY FACE OF INTERNATIONALISM There is considerable optimism about the prospects for peace in the DRC. A lingering fear subsists as well, because the conditions that were responsible for the eruption of war have only been marginally addressed. The United Nations panel investigating the illegal exploitation of Congo‘s natural resources found the illegal exploitation of Congo‘s mineral resources to be ―one of the main sources of funding for the groups involved in perpetuating the conflict.‖261 But it concluded that these illegal exploitation will never be halted because the ―necessary networks have already become deeply embedded to ensure that the illegal exploitation 259. See I.C.J. Press Release 2005/11, Armed Activities on the Territory of the Congo (Congo v. Uganda) (April 29, 2005) available at http://www.icjcij.org/icjwww/ipresscomipres s2005/ipresscom2005-11_co_20050429.htm. 260. See I.C.J. Press Release 2005/15, The Democratic Republic of the Congo Initiates Proceedings Against Rawanda Citing Massive Human Rights Violations By Rawanda on Congolese Territory (Congo v. Rawanda) (May 28, 2002) available at http://www.icjcij.org/icjwww/ipresscom/ipress2002/ipresscom2002-15_crw_20020528.htm. 261. See Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of wealth in the Democratic republic of Congo, supra note 43. 158 Gonzaga Journal of International Law [Vol. 10:2 continues, independent of the physical presence of foreign armies.‖262 The message seems pretty clear—that the nature of the conflict networks and their modus operandi are disaffected by the current efforts to restore peace in the DRC. The indication is that the international system has failed, or still yet, needs to do more than has already bed done. The failure is predicated upon incongruent legal systems and a diminished authority to enforce international norms.263 This is not a new thing, but in respect of DRC, it has raised some very troubling issues. First of all, it calls into question what the role of the ICC is going to be with regard to stopping the activities of conflict networks which clearly instigate and sustain wars. As already noted, the provision of article 15(2) should allow for more intrusive investigation of such entities by the prosecutor without seeking permission from the UN Security Council. Secondly, it raises the issue of how far the UN would be prepared to go to protect the territorial integrity of its members. When Iraq invaded Kuwait in 1990, the UN authorized the United States to militarily stop the aggression. In Congo, the aggression of Uganda and Rwanda was condemned, but in the same breath as the Angolan, Zimbabwean, Namibian support of the Kabila regime, and yet the aggressors acting in consort with some powerful nations, had violated a reigning principle of international law. Thirdly, the question of how the findings of the various investigative panels of the UN Security Council are going to influence the creation of norms has now emerged. The Congo panel mentioned above is not different from the one set up in May 1999 to investigate breaches of the UN embargo against conflict minerals from Angola,264 and to similar other panels constituted to investigate human rights violations of this or that nature in many parts of the world. In the case of Angola, the concerns were about transnational entities trading on diamonds from Angola, thus perpetuating Id. See Juma, supra note 9. UN Security Council Resolution 1237 of May 7, 1999, set up an Expert Panel headed by Ambassador Andes Möllander of Sweden. The panel delivered its report on March 10, 2000. Interestingly the report contained a list of companies whose activities in Angola were questionable. But perhaps what was more poignant was its finding about Mobutu and Zaire‘s role in financing Jonas Savimbi‘s UNITA rebels. UNITA used Zaire as a base for the stockpiling of weapons and it used Zairean end-user certificates as a means by which arms brokers working for UNITA were able obtain the weapons Savimbi wanted. Mobutu provided Savimbi with the end-user certificates and in return Savimbi gave Mobutu diamonds and cash. TONY HODGES, ANGOLA: ANATOMY OF AN OIL STATE, 179 (2d ed. 2004). A correlative could be drawn from the activities of Rwanda and Uganda in the Congo conflict. What one might find it troubling that the US government imported tantalum, a mineral listed as ―critical‖ by the Department of Defense‘s Strategic and Critical Materials Report to the Congress, from Rwanda at the height of the civil war, and while Rwanda‘s army was controlling areas rich of the mineral deep inside Congo territory. See Montague, supra note 179, at 114. 262. 263. 264. Fall 2006] The War in Congo 159 the war. Are those not the same concerns with regard to the DRC today? No wonder the Congo panel was of the opinion that placing an embargo or banning the export of minerals from Congo would be undesirable because it ―does not seem to be a viable means of helping to improve the situation of the country‘s government, citizens or natural environment.‖265 This pattern of transnational complicity in conflicts needs to be addressed by a very tight regime of international law. A. Ethnicity and the Culture of War Phenomenon Congo has over 200 different ethnic groups, the largest ones being Luba, Kongo and the Anamongo. But ethnic differences had nothing to do with the war until politicized groups seeking to gain access to the country‘s wealth came in. Those groups that did not get government support worked the ethnic factor to generate hatred and intolerance and to create instability. The ethnic problems in Congo have been made, and because of that reason, the whole conflict in Congo has now entered a new phase. Whereas hostilities between the big boys may be on the decline after the formation of the government of national unity, ethnic fragmentation and schisms built by the successive meddling of the neighboring countries and international groups scrambling for mineral wealth, has started to take its toll. This is especially so in mineral rich areas such as Bunia, in Ituri province. The Hema and Lendu peoples living in this area were supplied with arms by Rwandan and Ugandan forces in 1999 as they sought local support to overthrow Kabila. The Hema and Lendu had shared the land in this region for generations and yet in May of 2003, after the pullout of Ugandan forces from the region, the two tribes began fighting each other.266 The Tutsi/Hutu conflict magnified by the genocide in Rwanda in 1994 spilt over into Congo and was used by the Rwandan opportunist forces and Kabila to oust Mobutu. It was also the same factor that allegedly brought Rwanda back into Congo in 1998. So far, very little has been done to address the problems between these two ethnicities. And yet the problem between the Banyamulenge and the Interahamwe in eastern Congo is bound to create instability in that region for along time. Perhaps, a two-tier approach needs to be adopted. The first would be local peace building efforts to address the fears of the communities and help them construct an agenda for peaceful coexistence. The second level would involve the regional political efforts that would addresses the wider problems of Rwanda and Burundi and the ethnic issues in these nations, as well as the 265. See Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of wealth in the Democratic Republic of Congo, supra note 43. 266. See Monique Beadle, DR Congo’s Challenge to UN Peace Keeping (July 3, 2003), available at Institute for Global Engagement, http://www.globalengagement.org/issues/2003/0 7/congo.htm. 160 Gonzaga Journal of International Law [Vol. 10:2 problem of southern Sudan and northern Uganda.267 In the later case, the recent formation of a government of national unity in the Sudan may offer a ray of hope.268 Also, with the indictment of rebel leaders such as Joseph Kony of northern Uganda‘s Lords Resistance Army (LRA) by the International Criminal Court at the Hague, there is a possibility for the deescalation of rebel activity in these areas.269 B. The Influx of Light Weapons Light weapons as used in this article refer to the combination of personal weapons and light military weapons in military terminology.270 Of the two, personal weapons, or small arms, have become the most notoriously used in many intractable internal wars in Africa, including the Congo. According to the Small Arms Survey 2005, published by the Graduate Institute of International Studies Geneva, small arms cause an estimated 60 to 90 percent of all direct war deaths.271 The 2004 survey showed that there were 30 million small arms and light weapons circulating in sub-Saharan Africa. Seventy-nine percent of those weapons were in the hands of civilians, nineteen percent were held by the police and the military and an estimated two percent were in the hands of armed groups and insurgents.272 Apart from official government imports of the countries such as Uganda, Rwanda, Congo Kenya and Tanzania, the in-flow of small arms into the great lakes region has been through illegal arms trafficking. Arms trafficking not only involve racketeers and clandestine networks but also humanitarian agencies. According to Kathi Austin, planes belonging to international organizations such as World Food Program, UN High Commission for Refugees and Oxfam have been known to deliver arms.273 Occasionally such cargo is labeled as ―farm machinery‖ to evade detection. 267. Ali Mazrui‘s suggestion for the formation of a confederacy of states within the great lakes region would certainly be on the table. See Ali Mazrui, The Tutsi trigger: Redrawing Africa's Colonial Map, 14 NEW PERSP. Q. 48 (1997). 268. See Press Statement, U.S. Department of State, United States Recognizes Sudan's Government of National Unity and Interim Constitution as Important Step (Jul.10, 2005), available at http://www.state.gov/r/pa/prs/ps/2005/49114.htm. 269. See Time May be Running Out for Uganda’s LRA Warlord, SUDAN TRIB., Sept. 25, 2005, available at http://www.sudantribune.com/article.php3?id_article=11792. 270. United Nations has defined small arms to include, ―revolvers, self loading pistols, rifles, carbines, submachine guns, hand held barrel and mounted grenade launchers, portable anti-aircraft guns, portable launchers of anti-aircraft missile systems and light mortals of less than 100mm caliber.‖ Report of the Panel of Governmental Experts on Small Arms, U.N. GAOR, 52nd Sess., Annex, Agenda item 26, U.N. Doc. A/52/298 (1997). 271. See The Small Arms Survey 2005: Weapons at War, available at http://www.smallarmssurvey.org/publications/yb_2005.htm. 272. See The Small Arms Survey 2004: Rights at Risk, available at http://www.smallarmssurvey.org/publications/yb_2004.htm. 273. See AFRICAN STAKES OF THE CONGO WAR, supra note 14, at 35. Fall 2006] The War in Congo 161 Austin gives the example of Chinese arms industry exporting their wares among the shipment of beans and tools to the great lakes region.274 In Congo, the proliferation of small arms has been compounded by the collapse of the Mobutu regime, the instability in the Rwanda and Burundi, the vast mineral resources and also by the direct supply to the rebel forces in Congo by external governments. During the Mobutu days most of the arms shipments to UNITA forces by the US government went through Zaire and Mobutu was known to withhold substantial chunks of it for his own use. When Mobutu‘s regime collapsed, its weapons vanished into the informal economy. Mostly the arms landed in the hands of individuals willing to sell them for quick gains or rebel forces fighting to gain control of the state.275 It was arms supplied by Zaire and France to the Habryimana regime in Rwanda that were later used by the intrehamwe groups in Congo to attack the Banyamulenge.276 The neighboring African countries of Uganda and Rwanda deliberately armed local groups to help in fighting Kabila. Countries in Eastern Europe such as Belarus, South Africa, Egypt and Belgium have also traded arms to the great Lakes region.277 In rebel held areas, traders from France, Belgium, South Africa and Sudan barter imported goods including small arms for coffee and minerals.278 The danger posed by small arms to the region has prompted governments to forge alliance in curbing their proliferation. In March 2000, foreign ministers of the ten countries comprising the great lakes region converged in Nairobi and drafted a multilateral agenda for dealing with the problems of arms proliferation.279 Now known as the Nairobi Declaration, the agenda initiated a move towards the establishment of national ―focal points‖ for coordinating the efforts towards combating the arms menace in the region. The declaration formed the basis for the creation of a more elaborate regime for joint regional efforts in dealing with the problem. However, the legislative measures, issues of control, seizure, information exchange all of which were necessary for the implementation of the agenda were not concluded at this stage. Also, the logistics related to the operational and national capacity building were left to future discussions. Strong indications were made of the intention to set up a committee to streamline these issues.280 In April 2004, the parties met again in Nairobi Id. The great lakes and the Horn of Africa has been unlucky in this respect. The same happened when the Siad Barre regime in Somali collapsed and also the Ethiopian dictatorship of Haille Sellasie. 276. See AFRICAN STAKES OF THE CONGO WAR, supra note 14, at 188. 277. Id. 278. See Francois Misser, Congo: Behind Rebel Lines, NEW AFRICAN, Sept. 2000, at 24. 279. See AFRICAN STAKES OF THE CONGO WAR, supra note 14, at 193. 280. See Ben Agina, EAC to Combat Small Arms Flow, East African Standard, Nairobi, Mar., 14, 2000. 274. 275. 162 Gonzaga Journal of International Law [Vol. 10:2 and this time the Protocol for the Prevention Control and Reduction of Small Arms and Light Weapons in the Great Lakes Region and the Horn of Africa was signed.281 The protocol mandated signatory states to take legislative measures against illicit trafficking of small arms; to strengthen sub-regional cooperation; keep inventory and records of all small arms; and adopt effective programs for collection, storage, and responsible destruction of small arms.282 The need for an institutional framework for the implementation of the protocol necessitated the creation of the Regional Centre on Small Arms and Light Weapons in the Great Lakes and Horn of Africa (RECSA) in June 2005.283 The center will be based in the Kenyan capital, Nairobi.284 RECSA‘s main objectives would be to promote cooperation at regional and international levels and to prevent, combat and eradicate the illicit manufacture and use of illegal small arms and light weapons. It was also mandated to promote peace and sustainable development in the region by ―encouraging accountability, law enforcement and creating mechanisms for efficient control and management‖ of weapons.285 The center was expected to function as the fulcrum for collection, dissemination and sharing of vital information between governments, intergovernmental organizations and civil society in matters relating to the trafficking of small arms. How these regional efforts will help reduce the small arms menace remains to be seen. What seems certain is the realization that arms proliferators, like other conflict networks, operate transnationally, and efforts to combat their activities must eventually be tied to a regional, continental and international framework of similar purpose that has the cooperation of all states. VI. CONCLUSION Economists can talk all they want about restructuring the economy to take advantage of Congo‘s vast mineral wealth, so can politicians about the need to develop human capital and institute democracy. But what Congo needs first is peace. In the current climate of hatred, embedded deep into the nation‘s soul by external forces through predatory transnational and 281. See The Nairobi Protocol for the Prevention, Control and Reduction of Small arms and Light Weapons in the Great Lakes Region and the Horn of Africa, Apr. 21, 2004, available at http://www.saferafrica.org/DocumentsCentre/Books/NairobiProtocol/nairobiProt ocolEng.php. 282. See id at 2. 283. See Horn of Africa: Centre established to combat illicit arms proliferation, U.N. Office for the Coordination of Humanitarian Affairs – Integrated Regional Information Networks, available at Relief Web, http://www.reliefweb.int/rw/RWB.NSF/db900SID/VBOL -6DNHAB?OpenDocument. 284. Id. 285. Id. Fall 2006] The War in Congo 163 conflict networks, ensuring peace will be a hard task to achieve, unless the international system gets new orientation and its politics adopt a stricter standard that makes everybody practice what they preach. In this article we have shown how the hitherto invisible foreign hand that wrecked havoc on Africa‘s attempt to build nationalism has now become so visible thanks to globalization and the demise of the cold war. Now, what we need is a visible UN image that exemplifies itself in stricter legal control of activities that shape internal wars in less developed countries. The glaring and bewildering irony that we see in the DRC, a country with the most impoverished population yet so rich in natural wealth, must certainly evoke a moral sense of responsibility, if not shame, on those who benefit from such wealth.