By Alexandra Wilson

The International Committee of the Red Cross (ICRC) enacts International Humanitarian Law (IHL) which limits the consequences of armed conflicts between two or more states for individuals not contributing to the hostilities of war.  IHL fails when the conflict is either not classified as armed or internally within one state, like the current non-international armed conflicts of the DRC. Instead, this ongoing conflict is covered by international human rights law and domestic law.  

The protections under IHL include that of humanitarian workers and individuals involved in the transport, administration, collection, transport, or removal of patients, as well as sanitary establishments and disease prevention and medical service delivery as well as religious personnel.(6) This covers hospitals, ships, transportation vehicles and additional infrastructure associated with the delivery of humanitarian aid.(7) The distinct red crescent or red cross emblem identifies humanitarian workers, hence protected under IHL. Furthermore, if a humanitarian worker is captured by the enemy, they must not be kept a prisoner of war and released upon completion of delivering humanitarian aid.(6,8) The civilian population must not be prevented from accessing humanitarian aid and transportation of essential services must not be interrupted.(9) S

IHRL and IHL prohibits torture and discrimination, offers some provisions for protecting women and children and the supply of food and health resources; however, differ in their origin, scope of application and implementation. 

Human rights violations by Allied Democratic Forces armed groups and defence personnel in DRC include the use of heavy weaponry, destruction of health centres and schools, abducting civilians and recruitment of persons including children.(10) Over an 18-month period from Jan 2019 to June 2020, 1066 civilians lost their lives, 717 were abducted, 59 children recruited, 1 school and 7 healthcare centres along with other homes were attacked. This has resulted in mass population displacement.(10) However, even in 2021, reportedly over 400 defence personnel are still awaiting trial for actions which may constitute war crimes and crimes against humanity.(10) 

Interestingly the constitutional law of the DRC ratified international agreements to override domestic legislation for the Basele Lutula and Others case (2009) and Barnaba Yonga Tshopena case (2010), where breaches of IHL had occurred by armed forces.(11) 

However, with reports of the military use of schools, and subsequent violent attacks on schools, teachers, and students in the DRC,(12) this represents acts potentially considered lawful under IHL through contravening the definition of a war crime as these are “military sites.” This not only hinders their education delivery, an element protected by IHL, but has resulted in violence against teachers, rape and other sexual violence against girls and subsequently unlawful recruitment of children into armed groups.(12) 

As internal tension and conflict is not covered by IHL, the prosecution of war crimes and crimes against humanity in the DRC that have been reported to occur, have been difficult since the DRC’s withdrawal from the International Criminal Court (ICC).(12)

References:

6.International Committee of the Red Cross. What is International Humanitarian Law? [Internet]. Geneva, Switzerland: 2004 July [cited 2021 May] 2 p. Available from: https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf

7.Australian Red Cross. Handbook on International Humanitarian Law Mooting [Internet]. Melbourne, Australia: Australian Red Cross. 2016 [cited 2021 May]. Available from: https://www.redcross.org.au/getmedia/0dc28ac0-4a24-44b2-bf4b-755a3f0afb49/Handbook-on-International-Humanitarian-Law-Mooting.pdf.aspx

8.International Committee of the Red Cross. Customary International Humanitarian Law [Internet]. Cambridge, United Kingdom: The Press Syndicate of the University of Cambridge; 2005 [cited 2021 May 03] 4411 p. Volume II, Practice 1. Available from: https://www.icrc.org/en/doc/assets/files/other/customary-international-humanitarian-law-ii-icrc-eng.pdf

9.International Committee of the Red Cross. Respecting and Protecting Healthcare in Armed Conflicts and in Situations Not Covered by International Humanitarian Law [Internet]. Geneva, Switzerland: 2012 March [cited 2021 May] 4 p. Available from: https://www.icrc.org/en/download/file/1056/health-care-law-factsheet-icrc-eng.pdf

10.United Nations Joint Human Resources Office (UNHRO). Report on violations of human rights and international humanitarian law by the Allied Democratic Forces armed group and by members of the defense and security forces in Beni territory, North Kivu province and Irumu and Mambasa territories, Ituri province, between 1 January 2019 and 31 January 2020 [Internet]. 2020 Jul 6 [cited 2021 Aug 10]. Available from: https://reliefweb.int/report/democratic-republic-congo/report-violations-human-rights-and-international-humanitarian-law

11.International Committee of the Red Cross. IHL Database Customary Law [Internet]. Geneva, Switzerland: 2021 January [cited 2021 August]. Available from: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_cou_cd_rule40

12.Praz, J. (2015). Democratic Republic of Congo, Attacks Against and Military Use of Schools [Internet]. [Cited 2021 Aug 01]. Available from: https://casebook.icrc.org/case-study/democratic-republic-congo-attacks-against-and-military-use-schools