December 11, 2008

II. Context

Peace process fails

In late August 2008, heavy fighting resumed in North Kivu between the Congolese army and Nkunda's CNDP rebels, as well as other armed groups, breaking a fragile ceasefire that had been in place since the Goma peace agreement was signed on January 23. The agreement had been intended to halt hostilities, to lead to disengagement of forces from front line positions, and to make possible political and security discussions between the government and 22 armed groups, of which the CNDP was the most significant. Despite efforts to move the process forward by representatives from the UN, the African Union (AU), the EU, the United States (US) and the International Conference on the Great Lakes Region, the agreement began to crumble in July.[1] 

The Congolese army launched an offensive against the CNDP on August 28 but quickly lost ground, despite their superior numbers.[2] The better organized CNDP rebels captured huge swathes of territory in the heavily populated and fertile areas of Masisi and Rutshuru, sometimes temporarily halting or reversing their advance for strategic reasons or in response to pressure from the international community.[3] On October 26, the rebels captured Rumangabo military camp, one of the most important military bases in eastern Congo, for the second time since October 8. After seizing a large stock of weapons and ammunition, the CNDP forces then moved simultaneously north towards Rutshuru and south towards Goma. From October 26 to 28, the rebels gained control of a strategic stretch of road between Goma and Rutshuru and won another battle at Kibumba, just 27 kilometers north of Goma.

When CNDP forces took Kiwanja and Rutshuru on October 29, other CNDP forces were threatening Goma. While the Congolese government feared a possible CNDP capture of Goma, its soldiers fled the city both north and south, pillaging and looting along the way. The CNDP did not attempt to enter Goma, and declared a unilateral ceasefire.

The government did not respond to the ceasefire and its forces continued skirmishes with the CNDP forces. The CNDP also engaged in occasional combat with pro-government militias, including the Coalition of Congolese Patriotic Resistance (PARECO) and other Mai Mai groups, as well as with a Rwandan armed group, the Democratic Forces for the Liberation of Rwanda (FDLR), some of whose leaders participated in the 1994 genocide. The ongoing fighting allowed the CNDP to take further territory; by the end of November, it controlled nearly twice the area under its command at the end of August.

The fighting that resumed at the end of August added to the many miseries already suffered by the people of North Kivu. At least 415 civilians were killed and over 250 wounded between the end of August and early December. Another 250,000 people were forced to flee for their lives, raising the total number of displaced people in North Kivu to over one million, many of whom had only limited assistance from humanitarian agencies due to ongoing insecurity. Some displaced people have started to return home, faced with the lack of food or security in the camps as well as pressure from the CNDP to leave the camps. Yet many find their homes occupied or are confronted by new waves of fighting, forcing them to flee once again.

CNDP take control of Kiwanja and Rutshuru

Kiwanja and Rutshuru are neighboring towns, nestled together in a fertile valley on the edge of Virunga National Park. They make up one of the largest population centers in North Kivu with about 70,000 residents and, in early November, at least 50,000 displaced people living in camps or with host families. Rutshuru sits on the main road and is a strategic administrative center which houses one of the largest hospitals in the area.

The CNDP rebels arrived in Rutshuru late on October 28 and by the afternoon of October 29 were in control of both Rutshuru and Kiwanja. They faced no resistance from government soldiers, or its allied Mai Mai militias, nor from UN peacekeepers.

Within the first 24 hours, the CNDP ordered the local population to destroy all the camps for displaced people in the area, telling people that the CNDP "did not want any IDP [internally displaced person] camps." Some CNDP combatants also participated in the destruction of camps. On October 30 the CNDP informed MONUC that they were in charge of the area and on October 31 the rebel group appointed its own territorial administrator, Jules Simpenzwe.

The speed and efficiency with which the CNDP took control over the area led one military analyst to conclude that Rutshuru rather than Goma had been their main objective during the late October offensive. "While we were all focused on saving Goma, the aim of the CNDP was to take Rutshuru and we did not do enough to stop that."[4]

Mai Mai counter-attacks on Kiwanja

At around midday on November 4, some 200 Mai Mai combatants, including at least 30 child soldiers, launched a surprise attack on CNDP positions in Kiwanja. Dressed in civilian clothes or partial military dress, many appeared with leaves on their heads or arms. Armed with AK-47 assault rifles, spears, machetes, and some rocket propelled grenades (RPGs), they fought for several hours before pushing the CNDP out of the town. According to a MONUC official, the Mai Mai militia reportedly belonged to the Jeremie Group based in northern Rutshuru territory and the Kasareka PARECO Mai Mai group, some of whom were based to the north of Kiwanja. The Mai Mai may have been supported by FDLR combatants and possibly some Congolese army soldiers.

At around 5:30 am on November 5, the CNDP launched a counter-attack with heavy weapons such as mortars and rockets that continued until about noon. Some civilians managed to flee, but most were caught in the middle of the fighting. At least several dozen civilians died in the crossfire. One woman was killed and her 16-year-old sister was seriously wounded when a mortar shell fell on their house in Mabungo neighborhood.[5] Another man was killed on the outskirts of Nyongera camp when an "explosion" hit his house.[6] Neither side warned civilians of impending combat nor facilitated their departure from the town before the fighting began.[7]

By 2 pm on November 5, the CNDP had reestablished control of Kiwanja.[8] The rebels then patrolled the streets and ordered the civilian population to leave the town, warning that all those remaining would be considered Mai Mai combatants or sympathizers.[9] Some who fled were stopped and sent back home by other CNDP combatants,[10] while others did not hear the order or were too afraid to flee. Hundreds of civilians reached Rutshuru and the MONUC base at Kiwanja by late afternoon.

[1]The conflict involving Congolese government forces and pro-government militias against non-state armed groups is considered a non-international armed conflict under international humanitarian law, or the laws of war. Applicable law includes article 3 common to the four Geneva Conventions of 1949, the Second Additional Protocol of 1977 to the 1949 Geneva Conventions (Protocol II), and customary international humanitarian law. Common article 3 provides minimum standards for the treatment of all persons in custody, including prohibitions on murder, torture, and other cruel treatment, and the taking of hostages. Customary international humanitarian law sets out, among other things, rules on the means and methods of warfare, including prohibitions on deliberate, indiscriminate, or disproportionate attacks on civilians. International human rights law, such as found in the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is also applicable.

[2]The FARDC is estimated to have over 22,000 soldiers in North Kivu while the CNDP rebels are estimated to have a force of between 4,000 and 6,000 combatants.

[3]The CNDP have occasionally retreated from areas days after taking them over to reinforce their troops in other locations.

[4]Human Rights Watch interview with UN military analyst, Goma, December 3, 2008.

[5]Human Rights Watch telephone interview with Congolese NGO worker who participated in burials in Kiwanja, Goma, November 7, 2008; Human Rights Watch interview with Kiwanja resident who participated in burials, Kiwanja, November 29, 2008. Human Rights Watch interview with victim's neighbor in Kiwanja, November 29, 2008.

[6] Human Rights Watch interview with victim's neighbor who witnessed the killing, Kiwanja, November 29, 2008.

[7] Customary international humanitarian law requires that all parties to a conflict take all feasible precautions to protect the civilian population under their control against the effects of attack. See International Committee of the Red Cross (ICRC), Customary International Humanitarian Law (Cambridge, UK: Cambridge University Press, 2005), rule 22. Parties must also, when circumstances permit, give effective advance warning of attacks that may affect the civilian population. Ibid., rule 20.

[8]Human Rights Watch interview with MONUC official, North Kivu, November 29, 2008.

[9]Human Rights Watch interviews with Kiwanja residents, Goma, November 8, 2008; and Kiwanja, November 26 and 29, 2008.

[10]Human Rights Watch interviews with Kiwanja residents blocked from escaping Kiwanja on November 5, Goma, November 8, 2008.