The power of international law lies in its potential to offer alternatives to force and violence. The ideal is that states submit their grievances to a court rather than duke them out on a battlefield, or carry them out against civilians.
As concerns armed violence, there are two international courts that countries can engage. The first is the International Court of Justice (ICJ). It is the world's oldest international court, with jurisprudential roots that reach back into the 19th century. The ICJ applies international law, the law of treaties, to states. It operates based on state consent - when and in ways that states agree to. This has tended to make it sleepy and technocratic, although its recent role in adjudicating genocide may be changing that.
The second is the International Criminal Court (ICC), a newcomer that exploded onto the international law scene just over 20 years ago. The ICC applies international criminal law, the law that recognises atrocity crimes, to individuals. It has an independent prosecutor who can scour the world for violations, but who can also take state or UN Security Council referrals. Although it was originally celebrated as a tool to end impunity and build "a more just world", the ICC's missteps and inefficiency have muted enthusiasm towards it.
Can either of these courts move the long-running and increasingly violent conflict in eastern DRC away from civilians and into the courtroom?
According to UN observers, M23 - the rebel group at the centre of the recent escalation in fighting - is financed by Rwanda, although Rwanda denies involvement. Most recently, Rwanda was implicated by the US over the shelling of a refugee camp in eastern DRC in which at least nine were killed.
Although the Belgian envoy to the DRC recently encouraged the DRC to bring Rwanda to the ICJ over the escalation of violence, there is no easy path for Kinshasa to bring Rwanda to heel. This is because Rwanda has steadfastly refused to join international legal institutions like the ICJ and ICC.
My scholarly work focuses on the development of international law and legal institutions in the practice of transitional justice. My most recent book, The Justice Laboratory: International Law in Africa, discusses both the promise of international law and why international criminal justice seems to be a declining force.
The breakdown of order in eastern DRC has been described as the world's most neglected crisis. The plight of millions has also been described as one of the worst humanitarian crises of this century.
The crisis would seem to offer international law a perfect opportunity to test its potential. Instead, the DRC's experience showcases the constraints of international law. For the vulnerable millions in eastern DRC, it is not enough that international courts exist. When states reject international courts and the laws they apply, they weaken the protections that millions might otherwise enjoy.
DRC appealing to international justice institutions
Twenty years ago, the DRC brought a claim against Rwanda, Burundi and Uganda to the ICJ. The claim concerned the kinds of violence we are seeing now. The claims against Uganda went ahead, because Uganda has consented to ICJ jurisdiction. In 2005, the ICJ ruled in the DRC's favour, finding that Uganda was responsible for violence in the country. In 2022, the court ordered Uganda to pay US$65 million in reparations related to the 2005 ruling.
The claim against Rwanda failed because the court determined it had no jurisdiction. Rwanda has not consented to ICJ jurisdiction. The ICJ thus had to consider whether other treaties Rwanda and DRC are parties to might give the court jurisdiction over the DRC's claims. It determined they did not.
The ICC, meanwhile, has been investigating atrocities in the DRC since 2004. In 2019, it found a commander in M23, Bosco Ntaganda, guilty of war crimes and crimes against humanity.
In 2023, the DRC made another request to the ICC to investigate crimes committed on its territory. But as the Ntaganda judgment illustrates, the ICC's means of working demonstrates its limitations. The ICC prosecutes individuals, not structures and not states.
Ntaganda the man sits in jail for his crimes. He fell into the ICC's custody when he turned himself in at the US embassy in Kigali in 2013, afraid for his life after losing a power struggle within M23. M23 the group, as well as the Rwandan regime that enables it, remain.
What role for international law?
As I argue in my book, Rwanda has long enjoyed a double standard regarding international law. After the 1994 genocide, a UN tribunal (International Criminal Tribunal for Rwanda) worked in the country for two decades, convicting several responsible parties for their role in the violence. But when the tribunal started investigating atrocity crimes associated with President Paul Kagame's army, Kagame's regime ceased cooperating with the court. Kagame's regime accepted international justice to punish his enemies, but rejected its application against himself and his friends.
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These types of challenges to rule of law fuel speculation, mostly generated by old world powers, that we are witnessing the collapse of a rules-based international order.
Invocations of international law by countries in the global south show that reports of international law's demise are, however, greatly exaggerated. In the past five years, The Gambia, South Africa and Nicaragua have put the 75-year-old Genocide Convention to new uses, insisting on the centrality of international law in regulating violence in countries far from their shores.
We can read the DRC's request that international courts address violence in its territory in the same light. The DRC is acting as it should to enable international law to do its work and fulfil its promise. Yet so long as Rwanda does not submit to international legal jurisdiction, international law's potential cannot be realised.
Currently, several European states are contemplating paying Rwanda to send refugees there. These states are members of the ICJ, and all submit to its compulsory jurisdiction. They are also members of the ICC. States that are participating in the international legal order should pressure Rwanda to do the same.
Kerstin Bree Carlson, Associate Professor International Law, Roskilde University
