“The key,” says Wim Muller, assistant professor at Maastricht University, “is jurisdiction”. The International Court of Justice (ICJ) only hears cases where there is consent by the countries concerned. So, what has changed since the Democratic Republic of Congo (DRC) previously attempted to bring Rwanda’s actions in the east of the country to the court’s attention?
The first time in 2001 was definitely a punt by Kinshasa: “DRC was saying ‘We let other states bring cases against us. We know that Rwanda does not allow this, but we trust that they will appear because our allegations are so serious they will feel compelled to do it’. But then - apparently - Rwanda did not feel compelled to appear before the court,” says Muller.
The second time in 2006, Kinshasa had a different argument: “The government of the DRC was aware that Rwanda had made reservations [to when they could be challenged under certain treaties], but the DRC argued that judges should agree you cannot legitimately make a reservation to a human rights treaty.” In vain. Sudan recently attempted the same argument in relation to alleged funding of the Rapid Support Forces by the United Arab Emirates and, earlier this year, the judges showed that the argument “still doesn’t work,” notes Muller.
However, now the DRC is arguing that Rwanda has withdrawn all its reservations to what are known as compromissory clauses in the treaties it is relying on. And this time, DRC is trying to cover all its bases, with not only allegations of genocide under the genocide convention, but also accusations of torture, racial and gender discrimination under three other international treaties. This approach, says Muller, “is a little bit like spaghetti because the sauce might fall between the different strands. But even if it won’t cover everything, it’s better than nothing”.
Overall, he adds, it can be useful for the DRC to use all four conventions “because Kinshasa is trying to present one grand narrative of a collection of human rights violations that Rwanda is allegedly responsible for. Different violations may come within the scope of different treaties”.
DRC’s material arguments
The DRC situates its new claims in the fall out from the 1994 genocide of the Tutsis in Rwanda. It uses multiple UN sources, commissions of inquiry and reports, including the “Mapping report”, from August 2010, to say that “according to this report, the ‘major political crises, [the] wars and [the] numerous ethnic and regional conflicts’ that characterised this period ‘led to the deaths of hundreds of thousands, or even millions, of people’”.
Over the years, it notes how Rwanda’s resultant attempts to track down former genocidaires has affected DRC: “As early as 1996, the new Rwandan authorities launched large-scale military operations in eastern Zaire, citing the need to continue the fight against those responsible for the genocide who had taken refuge there. To attack the refugee camps in the east of the Democratic Republic of the Congo, the [Rwandan] forces employed a strategy that has been replicated on numerous occasions to this day,” states the report.
The application divides the allegations into five time periods, culminating in the most recent activities by rebels supported by Rwanda. “Throughout these five periods, Rwanda has, through the actions or omissions of its own armed forces or those of Congolese rebel groups under its authority, been responsible for a series of particularly serious violations of international law to the detriment of the civilian population in the east of the Democratic Republic of the Congo. These acts and omissions clearly fall within the scope of the four conventions on which this application is based.”
“A much more plausible case”
“The DRC is not simply tilting at windmills this time,” says Winona Xu, research fellow at University of California, Los Angeles. Because Rwanda in 2008 and 2009 withdrew its reservations to the treaties, Kinshasa “has moved from a near-total jurisdictional blockage to a much more plausible, but still technically fragile jurisdictional posture,” she says.
But the challenges may well absorb the court for a number of years, notes Xu, as they relate to “negotiation/arbitration preconditions” in various conventions. “In 2006, the ICJ faulted the DRC for not showing treaty-specific negotiations and not proving an attempt to initiate arbitration”, in particular when it previously tried to use the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). “If the DRC has now sent treaty-specific correspondence, invoked CEDAW as such, requested arbitration, and allowed the six-month period to lapse without agreement, the CEDAW jurisdictional basis becomes much stronger,” explains Xu.
On another convention, for the elimination of racial discrimination (CERD), to which Kinshasa refers, “the dispute must not have been settled by negotiation or by the procedures expressly provided in CERD, but the DRC must still show that the CERD dispute was identified as such and that efforts to settle it failed”.
Too broad time scope?
And then there’s the time scope of the application. DRC refers to periods spanning 30 years, but Rwanda will be able to argue that it is only in the period since the legal changes, that it would have to face any charges.
On the Torture Convention, “Rwanda was not a party in 2006 but is now a party,” but the convention entered into force for Kigali in January 2009, and “although earlier facts may be relevant as background, DRC should be pleading around post-2009 torture, detention, coercive punishment, forced recruitment, interrogation practices, disappearances, or severe abuse,” she says. And the need to prove negotiation again raises its head here: six months of no agreement or arbitration is needed.
On the Genocide Convention, Rwanda only withdrew its reservation to other parties challenging it in December 2008. Here again, “the safer approach for the DRC would be to anchor legal responsibility in post-2008 and ongoing conduct, while using the 1996–2008 material as background, pattern evidence, and evidence of intent,” notes Xu.
DRC looking for “moral victories”
In 2023, DRC also applied to the African Court of Human and Peoples Rights (ACHPR). Rwanda’s jurisdiction objection was later rejected. In that case, DRC accuses Rwanda of torture, human trafficking, summary executions, forced displacement, and other human rights violations in North and South Kivu. It is the first ever interstate case to be heard at the ACHPR. And at the East African Court of Justice (EACJ), Rwanda stands accused by DRC of human rights violations via its support for rebels including M23. That too is a first interstate case at the EACJ.
While from the outside it may look like a strategy, Richard Moncrieff of the International Crisis Group is more sceptical: “There is very little sense of producing a single coherent argument,” he says. “Theimage of just throwing spaghetti at a wall is completely right. And it’s not just one person throwing – everybody’s doing it in Kinshasa and there’s no great coherence behind that.” On the international stage, “Rwanda is very, very strong diplomatically while the DRC is very, very poor diplomatically and has very little actual influence,” he adds.
However, applying at different courts, “as a part of a legal strategy”, can make sense, says Muller. “Even a partial recognition of their claims by an international court or regional court is good for the DRC,” he says. Xu agrees: “That can generate pleadings, annexes, testimony, factual findings, and a cumulative evidentiary architecture. They may also help to show notice: Rwanda was repeatedly confronted with allegations and therefore cannot easily claim ignorance of the conduct attributed to M23 or RDF [Rwandan Defence Force].”
Nevertheless, analyses Moncrieff, “the government in Kinshasa feeds off little diplomatic victories”. Its aim is to “gain a moral high ground. For example, they regard the UN Security Council resolution of February 2025, which explicitly condemned Rwanda, as a major victory. They then have various strategies to try to amplify that victory – they’re after moral victories”.
