Releasing prisoners of war in the Democratic Republic of the Congo: 1999–2000

IHL says

Basic international humanitarian law (IHL) rules applicable to this situation:

Detainees must be provided with adequate food, water, clothing, shelter and medical attention.

In international armed conflicts, the ICRC must be granted regular access to all detainees to monitor their detention conditions and to restore contacts between detainees and their families.

In non-international armed conflicts, the ICRC may offer to visit all persons detained in connection with the conflict to monitor their detention conditions and to restore contacts between detainees and their families.

Prisoners of war must be released and repatriated without delay after active hostilities cease.

Civilian internees must be released as soon as the reasons which necessitated internment no longer exist, and as soon as possible after active hostilities cease.

Persons detained in connection with a non-international armed conflict must be released as soon as the reasons for detaining them cease to exist. Such detainees may continue to be held if penal proceedings are pending against them or if they are serving a sentence lawfully imposed.

The case in brief

In 1998 a complex armed conflict developed in the Democratic Republic of the Congo (DRC). It was fought between armed forces loyal to the DRC government, with support from Angola, Namibia and Zimbabwe, and opposition forces comprising Congolese non-state armed groups, supported by Burundi, Rwanda and Uganda. All parties took prisoners of war (PoWs).

In 1999 the parties signed the Lusaka peace agreement, including a commitment to release POWs. With support from the United Nations (UN) Security Council, among others, the DRC released hundreds of detainees in 2000.

IHL compliance highlights

In 1999, representatives of Angola, the DRC, Namibia, Rwanda, Uganda and Zimbabwe signed the Lusaka Ceasefire Agreement, committing to ending hostilities among all their forces in the DRC. Under the agreement the parties undertook to exchange PoWs and release any other people detained in connection with the conflict.
The parties granted the ICRC regular access to PoWs to monitor their conditions during captivity.
In 2000, the DRC government announced an amnesty, leading to the release of more than 100 political detainees. Upon the subsequent release of 177 Namibian, Rwandan and Zimbabwean PoWs, the ICRC repatriated them to their respective countries at the request of the relevant authorities.

Case prepared by Jason DePatie and Molly Wooldridge, J.D. students at Emory University School of Law, under the supervision of Professor Laurie Blank, Emory University School of Law; with the contribution of Jemma Arman and Isabelle Gallino, LL.M. students at the Geneva Academy.

A. THE LUSAKA CEASEFIRE AGREEMENT

[Source: Democratic Republic of the Congo, Ceasefire Agreement, 10 July 1999, available at http://peacemaker.un.org/sites/peacemaker.un.org/files/CD_990710_LusakaAgreement.pdf]

PREAMBLE

We the Parties to this Agreement [Angola, DRC, Namibia, Rwanda, Uganda, Zimbabwe];

[…] HEREBY AGREE AS FOLLOWS:

ARTICLE I

THE CEASE-FIRE

1. The Parties agree to a cease-fire among all their forces in the DRC […]

ARTICLE III

PRINCIPLES OF THE AGREEMENT

7. […] On the coming into force of the Agreement, the Parties shall release persons detained or taken hostage and shall give them the latitude to relocate to any provinces within the DRC or country where their security will be guaranteed.

8. The Parties to the Agreement commit themselves to exchange prisoners of war and release any other persons detained as a result of the war.

9. The Parties shall allow immediate and unhindered access to the International Committee of the Red Cross (ICRC) and Red Crescent for the purpose of arranging the release of prisoners of war and other persons detained as a result of the war as well as the recovery of the dead and the treatment of the wounded. […]

B. A JOINT GOVERNMENT COMMISSION DECIDES WHO SHALL BE RELEASED

[Source: Human Rights Watch, Political Prisoners Freed in the Democratic Republic of Congo, Release of the Remaining Prisoners Urged, 28 March 2000, available at https://www.hrw.org/news/2000/03/27/political-prisoners-freed-democratic-republic-congo]

(New York, March 28, 2000)—Human Rights Watch today welcomed the recent release of more than one hundred political prisoners in Congo, and urged President Kabila to release the remaining detainees who are eligible for an amnesty announced on February 19.

A joint government commission is currently visiting central prisons and security lockups to examine cases of political prisoners and decide whether to release them. However, administrative delays have unnecessarily prolonged the detention of people entitled for release according to the terms of the amnesty.

"This is a significant step forward and the Congolese government must be commended for it," said Peter Takirambudde, Executive Director of the Africa Division of Human Rights Watch, "We urge the Congolese government to keep moving in this direction and to promptly release those who are still wrongfully detained."

Forty-nine prisoners, many of them soldiers of the former Congolese army, were freed in mid-March.

Human Rights Watch has evidence of dozens of other prisoners held by President Kabila's government for the non-violent expression of opinion, and, in some cases, on charges or accusations of treason.

C. DRC RELEASES AND REPATRIATES 177 POW WITH ICRC HELP

[Source: ICRC, News Release, Democratic Republic of Congo conflict: Repatriation of 177 prisoners of war by the ICRC, 22 June 2000, available at p. 70, https://library.icrc.org/library/docs/DOC/DOC_00345.pdf]

Democratic Republic of Congo conflict: Repatriation of 177 prisoners of war by the ICRC

On 16 and 17 June, following agreements between the authorities of the Democratic Republic of the Congo, Rwanda, Zimbabwe and Namibia, the ICRC repatriated 177 former prisoners of war (POWs) of Rwandan, Zimbabwean and Namibian nationality who had been detained by the various belligerents in the Congo. The ICRC acted at the request of the parties to the conflict in its capacity as a neutral intermediary, and carried out the operation in accordance with its mandate. The POWs had all been registered and regularly visited by the ICRC during the period of their captivity.

An ICRC aircraft was used to bring 35 Zimbabwean and 11 Namibian former POWs from Kigali, in Rwanda, to the Congolese capital Kinshasa on Friday before returning to Kigali with 88 Rwandan ex-POWs on board. The next day, another plane took the 35 Zimbabweans from Kinshasa onward to Harare and an additional 43 Rwandan ex-POWs from Harare to Kigali. ICRC delegates were on board all flights.

The ICRC will continue to make its services available to all parties to the conflict in order to promote compliance with the provisions of international humanitarian law, in particular the Geneva Conventions of 1949 and their Additional Protocols of 1977.

Discussion

I. Classification of the Situation and Applicable Law

1. How would you classify the situation in DRC? What is the relation between DRC, Rwanda, Zimbabwe and Namibia? What additional information would you require in order to make such a determination? (GC I-IV, Art. 2)

II. Treatment and Release of POWs

2. In Document A it is mentioned that the parties to the agreement commit themselves “to exchange prisoners of war and release any other persons detained as a result of the war”: which categories of persons envisaged in the Geneva Conventions does the phrase “other persons detained as a result of the war” refer to? Are all persons who may be detained as a result of the war necessarily protected persons under IHL? (GC IV, Arts. 78-135)
3. How are POWs to be treated? Can they be prosecuted for having participated in hostilities? (GC III, Art. 13; P I, Art. 43(2))
4. When shall POWs be released? When are active hostilities considered to have ceased? Is the establishment of a cease-fire sufficient? (GC III, Art. 118; CIHL, Rule 128)
5. Must POWs be exchanged or unilaterally released after the close of active hostilities? What are the risks of exchanging rather than unilaterally releasing POWs?
6. Does the ICRC have a right to access POWs? Does this apply to all POWs? And all detainees? (GC III, Art. 126; GC IV, Art. 143; CIHL, Rule 124)

III. Elements Contributing to Respect for IHL

7. Can the signing of a cease-fire agreement such as the Lusaka Agreement increase the respect for IHL? How? Can the negotiation leading to the cease-fire also be beneficial for the respect of IHL? Why?
8. How can MONUC help the implementation of the Lusaka Peace Agreement? How can such a United Nations mission help with the release of POW? In your opinion, what role can the Security Council have in the implementation of IHL?
9. Document C mentions the “joint government commission”: what is its role? Is this foreseen by the Geneva Conventions? What do you think of such a mechanism? What are the advantages? Do you see any problematic aspects?
10. Looking at Document D, which factors made the release of the 177 POWs possible? Do you think the releases would have happened without the cooperation of the four countries? Without the intermediary role of an impartial organisation such as the ICRC?