VI. INTERNATIONAL HUMANITARIAN LAW

In the northeastern Congo an international armed conflict intersects with several internal conflicts. The conduct of combatants in both international and internal wars is regulated by several international conventions. The DRC signed and ratified the Geneva Conventions of August 12,1949 in 1961 and Protocol I of June 8, 1977 additional to the Geneva Conventions and relating to the Protection of Victims of International Armed Conflicts in 1982. Uganda signed and ratified the Geneva Conventions in 1964, as well as Protocol I Additional to the Geneva Conventions and Protocol II relating to the Protection of Victims of Non-International Armed Conflicts in 1991.¹⁶⁹

Since their war with the DRC is an international conflict, Uganda-as well as Rwanda and Burundi-is obliged to abide by the Geneva Conventions of August 12, 1949 and Protocol I additional to the Geneva Conventions.

In the Congolese territory that it occupies, the UPDF is bound by the provisions of the Fourth Geneva Convention which protects civilians under the control of an enemy state against arbitrary action by it. The Fourth Geneva Convention specifically prohibits physical and moral coercion (article 31), corporal punishment and torture (article 32), and collective punishment, pillage and reprisals (article 33). Some UPDF combatants deployed in the areas of Bunia, Beni, Lubero and in the conflict zone most affected by the Hema-Lendu ethnic conflict have at times engaged in one or several of these prohibited actions as detailed above.

The Fourth Geneva Convention in its articles 47 to 78 sets out rules applicable to occupied territory. Under article 42, a "territory is considered occupied when it is actually placed under the authority of the hostile army." Though it becomes the de facto administrator of the occupied territory, the occupying power must refrain from changing the status of the territory, a principle that Uganda has violated by creating the province of Ituri.

An occupying power may intern residents only "for imperative reasons of security" (article 78), and according to regular procedures that include the right of appeal. A competent body should conduct regular reviews of cases of interned persons. Articles 79 to 135 regulate the conditions and practical aspects of internment, in particular the places of internment, food and clothing, hygiene and medical care, religious, intellectual and physical activities, relations with the outside, penal and disciplinary sanctions, the transfer of internees, and the death of internees. Soldiers of the UPDF violated these regulations by detaining Congolese arbitrarily, without recourse to any formal procedure or lawful criteria, and holding detainees in conditions constituting ill-treatment, notably in mabusu, trenches employed as places of detention.

In combat against local Congolese militia or armed bands, whether of a single ethnic group like the Lendu or composed of people of various ethnic origins like the Mai-Mai, UPDF troops are subject to the norms governing international armed conflict. By summarily executing wounded Mai-Mai combatants, no less than in the deliberate killings of civilians, UPDF soldiers violated the Geneva Conventions.

Combat between the Hema and Lendu and other Congolese peoples was an internal armed conflict with international dimensions, insofar as UPDF troops were involved. Much of the violence, however, was outside the framework of fighting as armed militias attacked civilians distinguished only by their ethnicity. These crimes occurred within the context of the larger conflict, however, and the forces responsible were bound by laws of war prohibitions on attacks on civilians.

Parties to internal armed conflicts are obliged to uphold the standards set forth in Common Article 3 of the 1949 Geneva Conventions which prohibits attacks on civilians, including violence to life and person, cruel treatment and torture, taking of hostages, outrages upon personal dignity, and the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court.¹⁷⁰

The government of DRC is responsible for applying provisions of national law to the abuses committed by both parties to the conflict.

Recruitment of children
The Convention on the Rights of the Child article 38 (2) and (3), prohibits the recruitment of children under the age of fifteen for military service.¹⁷¹ Uganda signed this convention in 1990, although it has not signed the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, which establishes eighteen as the minimum age for direct participation in hostilities, for compulsory recruitment, and for any recruitment or use in hostilities by nongovernmental armed groups as well as government forces.¹⁷² Uganda has, however, signed (1992) and ratified (1994) the African Charter on the Rights and Welfare of the Child which requires that States Parties take all necessary measures to ensure that no child, defined as a person under the age of eighteen, take direct part in hostilities and that States Parties refrain from recruiting any child.¹⁷³

Human Rights Watch takes the position that no one under the age of eighteen should be recruited voluntarily or involuntarily into any armed force, whether governmental or nongovernmental in nature. By providing military training to Congolese minors in the DRC, and even on its own territory, and facilitating their use in conflict, Uganda has violated its obligations under international and regional conventions to which it is party.

Uganda on March 17, 1999 signed the International Criminal Court Statute which defines "conscription or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities" in international and internal armed conflicts as a war crime under the jurisdiction of the Court.¹⁷⁴

¹⁶⁹ The corresponding years for Rwanda and Burundi are 1964 and 1984, and 1971 and 1993 respectively.

¹⁷⁰ Geneva Conventions of 12 August 1949.

¹⁷¹ Convention on the Rights of the Child, Article 38 (2) and (3). All states are party to the Convention on the Rights of the Child except for the United States of America and Somalia.

¹⁷² UN Doc. A/54/L.84 at 2 (2000), Articles 2 and 4.

¹⁷³ African Charter on the Rights and Welfare of the Child, Articles II and XII (2)

¹⁷⁴ Article 8 which defines the conscription of children under fifteen as a war crime: in international armed conflicts, Para 2 (b)(xxvi); as well as in internal conflicts: Para 2 (e)(vii); Rome Statute of the International Criminal Court, article 8: War Crimes, at http://www.un.org/law/icc/statute/romefra.htm, accessed on March 4, 2001.