State obligations in international conflict: case study

The current military conflict taking place in the Democratic Republic of Congo is creating a potential call for measures to be taken by Czech republic. What measures are expected for our country in order for it to meet its international duties depends to a major extent on the type of conflict, which is taking place in the area.

The analysis of the type of conflict is by every mean a difficult one, due to the fact that the conflict has a transnational reach, but the official governments of the states involved1 are actually cooperating. Due to this situation it seems fairly clear that the conflict in the present situation cannot be characterized as an international one. The fighting parties are the National Congress for the Defense of the People (CNDP) led by General Laurent Nkunda and a Rwandan opposition force called the Forces for the Liberation of Rwanda (FDLR). If this were to stay this way and fighting were to continue on the soil of a single state,2 the conflict could be characterized as a non-international conflict. In this case, the non-state fighting parties would in every case have to obey the Common Article III and Protocol II of the Genève conventions.

Of course there is the possibility that Rwanda’s official armed forces take part in the conflict3 and in that case, the conflict would have the potential to be characterized as an international one. But this is not the present situation. If this were to be so, the parties involved would be obliged to obey Protocol I of the Genève conventions. As both interested parties4 have ratified the Genève conventions without reservations, they are obliged to respect them as a whole.

The key problem in the conflict is that only states may ratify the Genève conventions5 and as neither CNDP nor FDLR are states, merely armed groups operating on the territory of the Democratic Republic of Congo, they are not bound by them. In this case the Common Article III6 and Protocol II comes into operation. This document must be obeyed by every party taking part in any conflict because its content is considered to be customary law.7

Due to the fact that we can characterize by present means the conflict taking place in North Kivu as a non-international conflict with the parties being involved being CNDP, FDLR and the Democratic Republic of Congo, which the first two mentioned are non-state entities, different international rules have to be applied to the parties in question. As was already mentioned, the Democratic Republic of Congo, because it has ratified the Genève conventions and is a member of the United Nations and thus a ratificator of the Charter of United Nations, it has to obey the rules given in the mentioned treaties or conventions. The two armed entities8 are obliged to obey the Common Article III and Protocol II and the international humanitarian law, which they form a part of,  by which they are bound not regarding the fact if they have ratified the mentioned conventions or not. They must also obey the customary international law or suffer the consequences. These laws include among other the prohibition of executions, torture, rape and other.

Due to the fact that it is suspected that actions of the interested parties may not be in accord with the international humanitarian law, our state will probably have to meet responsibilities coming from the fact that it has as well ratified the Genève conventions and is a member of the United Nations.

First of all, our state has to be aware of the fact that it is bound by the resolutions of the Security Council of the United Nations and that this Council has the right to act on the behalf of our state9 and that it has to obey and carry out its decisions as long as they are in “accordance with the Charter of the United Nations”.10 Of course it is predictable that before such measures are taken, the Security Council will in accordance with Article 40 of the Charter of the United Nations take the necessary steps in trying to settle the conflict peacefully. But afterwards, in case this effort is not successful, more demanding measures may be wanted from our state.

Citing article 43 of the Charter of United Nations our state is obliged to „in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.” It is advisable to be prepared if such a situation were to come.

Then of course there is the Article 1 of the First Genève convention which says that „The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.“

While Article 3 of the already cited First Genève convention states among other that „Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria,“ this applies to the Democratic republic Congo as a ratifying party of the document. But concerning Czech republic, Article 49 of the First Genève convention is more actual. In short, it obliges our state to take the necessary legislative steps to penalize those who breach the convention. Moreover, it will be obliged to search for these alleged persons and bring them to court. The same article obliges our country to take the necessary measures for the suppression of all acts contrary to the provisions of the present Convention. What is meant by these breaches is stated by Article 50 of the same convention.

Regrettably it is suspected that some of these have taken place in the conflict, mainly “willful killing, … inhuman treatment and … extensive destruction and appropriation of property, … not justified by military necessity and carried out unlawfully and want only.”11

What is even more alarming is that recent news has stated that there exists a suspect that there is real danger of genocide taking place. According to Article 8 of the Convention on the Prevention and Punishment of the Crime of Genocide, „Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide“, which is defined in Article 2 of the same convention.

Moreover, the Convention on the Rights of the Child, which in Article 1 states that as a child shall be considered “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”, obliges the ratifying parties to protect the well being of children. This is further stressed by the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict which in Article 1 states that “States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.” There is severe danger, as in all conflicts taking place in Africa, that this article is not being applied in the conflict.

It is indispensable to be aware of the fact that the reality that our country has ratified the Genève conventions means that it has taken as its own the obligation to ensure that war criminals will be prosecuted under all circumstances.12 Moreover, the “international humanitarian law goes further in that it requires States to seek out and punish any person who has committed a grave breach, irrespective of his nationality or the place where the offence was committed. This principle of universal jurisdiction is essential to guarantee that grave breaches are effectively repressed.”

It is necessary to realize that although neither CNDP nor FDLR have ratified the Genève conventions, they are bound by Common Article 3 and Protocol II of the Genève conventions. The reason for this is the fact that the conflict, as I have earlier stated, is most close to being characterized as a non-international one. But even in non-international armed conflicts, war crimes can be committed13 and therefore have to be punished.

As a summary of the above mentioned facts, it should be clear that the Democratic Republic of Congo is bound by the Genève conventions and the Charter of the United Nations while the two non-state fighting parties by Common Article III and Protocol II. Third parties have duties and rights coming from the treaties they have ratified and from customary law. While in such situations it is advisable to wait for the stand point of the Security Council of the United Nations, it is necessary to mention Article 2 of Protocol II prohibiting intervention. This may in some way oppose the obligation of Czech republic to take measures to prevent grave breaches as they are stated. So to inform the Security Council of the United Nations may be a good way to get rid of potential problems with the harassment of the sovereignty of a foreign state. In this way, the obligation to prevention may possibly be fulfilled. In either case, if any of the grave breaches took place, the obligation to search for breachers of these laws and bring them to court is still present.

Under any circumstances, the Czech republic is obliged to take the necessary measures to prevent grave breaches of the Genève conventions, the Charter of the United Nations and international humanitarian law, while respecting sovereign rights of the Democratic Republic of Congo due to the fact that the conflict is a non-international one and thus can be considered to be an internal affair of the state. On the other hand, it has to be mentioned that the conflict may further evolve to an international one, where Protocol I comes into play. The studied conflict is also a part of a conflict which has been going on for a long time and by some analysts it can be interpreted as an international conflict. In either case requirements of customary law have to be satisfied.

1 Democratic Republic of Congo and Rwanda.

2 In the given situation of the Democratic Republic of Congo.

3 The armed forces of the Democratic republic of Congo are presently fighting the CNDO.

4 Democratic Republic of Congo and Rwanda.

5 International humanitarian law: Answers to your questions. [s.l.] : ICRC, 2004. p. 12.

6 „In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties. “ This is the situation for which Common Article III is put into use.

7 International humanitarian law: Answers to your questions. [s.l.] : ICRC, 2004. p. 17.

8 CNDP, FDLR.

9 Article 24, Charter of the United Nations.

10 Article 25, Charter of the United Nations.

11 Article 50 of the First Genève convention,

12 Article 49 of the First Genève convention,

13 International humanitarian law: Answers to your questions. [s.l.] : ICRC, 2004. p. 35.