Prosecuting Rwanda for Aggression in the DRC: Legal Feasibility and Challenges
Rwandan involvement in the Democratic Republic of the Congo (DRC) has been reported in two principal forms: first, direct intervention by Rwandan State forces across the border; and second, indirect support for the rebel group M23. UN experts and other observers have estimated that between 3,000 and 4,000 Rwandan troops operated in the DRC alongside the M23 rebellion. Rwanda’s advanced military equipment and personnel have been deemed “essential in securing new territory for M23” and repelling the Congolese army. Simultaneously, Rwanda stands accused of arming, training, and directing the M23 militia.
Under international law, both overt armed invasions and the sending of armed groups to carry out attacks can qualify as acts of aggression. The 1974 UN General Assembly Definition of Aggression (Resolution 3314) includes “the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries” to engage in armed force against another State’s sovereignty.
In Rwanda’s case, its backing of M23 alongside incursions by the Rwandan Defense Forces (RDF) may meet the definition of aggression as an unlawful use of force against the DRC’s territorial integrity. Building on Daniel Levine-Spound’s call for the international community to confront Rwanda’s actions as a potential crime of aggression, this post asks whether Rwandan leaders might realistically be prosecuted, or otherwise held accountable, under international law. It argues that while universal routes, such as the International Criminal Court (ICC) or the International Court of Justice (ICJ), face significant hurdles, African regional mechanisms offer a more promising avenue to address aggression-like conduct.
By examining each potential forum’s jurisdictional limitations and prospects, this analysis reveals how regional norms may help overcome the barriers to prosecuting aggression, thereby shedding light on the broader quest for accountability in the Great Lakes region.
The Crime of Aggression and the Jurisdiction of the ICC
Aggression—criminalized after the Second World War as “crimes against peace”—is codified in Article 8bis of the Rome Statute. However, ICC jurisdiction over aggression is exceptionally narrow: it requires that both the victim and aggressor States accept the 2010 Kampala Amendments or that the UN Security Council refers the situation.
Rwanda is not party to the ICC Statute, and neither Rwanda nor the DRC has ratified the aggression amendments. Consequently, the Court “shall not exercise its jurisdiction” over aggression in this conflict unless the Security Council intervenes, a prospect considered politically improbable. By contrast, war crimes or crimes against humanity committed on Congolese territory could, in theory, fall within the ICC’s reach because the DRC is an ICC member. Yet that option addresses only specific atrocities, not the broader act of aggression.
State Responsibility and the International Court of Justice
The International Court of Justice (ICJ) can hold States responsible for illegal uses of force. The DRC could theoretically bring proceedings against Rwanda for violating Article 2(4) of the UN Charter. It could seek an injunction against aggression and reparations, mirroring the DRC v. Uganda case, where Uganda was found liable and ordered to compensate the DRC.
However, ICJ jurisdiction hinges on Rwanda’s consent. Rwanda has not recognized the Court’s compulsory jurisdiction and maintains reservations to relevant treaties. The DRC’s 2002–2006 lawsuit was dismissed for lack of jurisdictional basis. Even a successful ICJ ruling might prove hard to enforce, as illustrated by the 1986 Paramilitary Activities judgment against the United States, when the victorious claimant (Nicaragua) struggled to secure compensation. Hence, pursuing Rwanda at the ICJ remains largely unfeasible without Rwanda’s express or implied consent.
United Nations Human Rights Mechanisms
Global human rights mechanisms offer few remedies. Rwanda has not ratified the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), so individual complaints before the UN Human Rights Committee are blocked. Nor has Rwanda accepted other UN treaty bodies’ individual complaint procedures (e.g., under the Convention Against Torture).
A State-to State complaint under the ICCPR or the International Convention on the Elimination of Racial Discrimination (CERD) is theoretically possible but rarely used; Rwanda’s past jurisdictional reservations, coupled with the political nature of such processes, make success unlikely. These limitations underscore the salience of African regional bodies in addressing alleged Rwandan misconduct.
Human Rights Litigation and Regional Forums
The International Law Commission (ILC), in Conclusion 16 of its 2018 Draft Conclusions on Identification of Customary International Law, affirmed the possibility of “particular” customary international law applying among a limited number of States. Although some States still question whether there can be “particular” customs that are neither strictly local nor strictly regional, they do not dispute that genuinely local or regional customs can create binding legal obligations among the States that adhere to them.
Historically, customary international law was central in criminalizing war crimes, reflected in the 1945 London Charter’s reference to the “laws and customs of war.” Although early international instruments on aggression (formerly the “crime against peace”) lacked the widespread practice needed for a universal custom, evolving regional practice can supplement universal norms, especially if backed by sufficiently consistent State practice and opinio juris in a defined area. In Africa, this opens a door to addressing aggressive conduct within regional legal frameworks.
African Commission on Human and Peoples’ Rights (ACHPR)
In its landmark 2003 decision, the African Commission found that Rwanda, Uganda, and Burundi had committed massive violations of the African Charter during their military interventions in the DRC, including extrajudicial killings, massacres, rapes, mutilations, and resource plunder. It concluded that the presence of Rwandan troops on Congolese soil infringed the Congolese people’s right to self-determination and to peace and security (arts. 20, 23), and that even in wartime, States cannot derogate from their human rights obligations under the Charter.
Although this ruling branded Rwanda’s intervention an unlawful occupation, causing egregious human rights abuses, the Commission, lacking strong enforcement powers, could only recommend withdrawal and reparations. By the time it issued its findings, Rwandan troops had withdrawn pursuant to a 2002 peace deal. Rwanda also opted out of the process and ignored the outcome.
Nonetheless, the case set a critical precedent by affirming that States intervening in civil wars can be held responsible for human rights breaches, extending obligations even to unlawfully held territories and establishing a blueprint for future efforts to address inter-State conflicts under African human rights mechanisms. This context posits why the inter-State case is so important. It is effectively the only judicial pathway currently open to address Rwanda’s alleged wrongdoing in the DRC in a court-like setting.
African Court on Human and Peoples’ Rights
The African Court on Human and Peoples’ Rights, currently the central forum for inter-State human rights litigation, can expand its mandate under the 2014 Malabo Protocol, which envisions merging the existing Court with a new section empowered to try international and transnational crimes, including aggression. Although not yet in force due to insufficient ratifications, the Protocol’s Article 28M mirrors the ICC’s definition of aggression (Article 8bis) while adding unique African elements. These include referencing the African Union’s Constitutive Act and allowing prosecution of individuals who control “the political or military action of a State or an organization,” potentially covering non-State armed groups like M23.
However, Article 46Abis exempts sitting heads of State and top officials from prosecution, significantly limiting immediate accountability for leaders in office (e.g., President Kagame) and illustrating persistent tension between African States’ sovereignty concerns and calls for judicial scrutiny of high-level perpetrators.
Even without these potential future powers, the existing African Court still offers a distinctive avenue for addressing State responsibility. Both Rwanda and the DRC have ratified the Court’s Protocol and thereby accepted its jurisdiction (although Rwanda withdrew its acceptance of petitions from individuals and non-governmental organizations (NGO) in 2016), enabling the DRC’s unprecedented 2023 inter-State case, DRC v. Rwanda.
That lawsuit alleges grave human rights violations in the Kivu region since 2021, including massacres, looting of natural resources, and mass displacement linked to Rwandan forces and their allies. By invoking multiple African and UN treaties, the DRC effectively frames Rwanda’s incursion as a breach of the rights to life, security, and development, an indirect way to litigate aggression-like conduct in a human rights forum.
The Court did not require Rwanda’s separate consent for this specific case beyond its general ratification of the Protocol. And unlike the ICC, the African Court can consider State responsibility for acts predating 2018 and does not face the Rome Statute’s jurisdictional carve-outs. In principle, the African Court could hold that Rwanda’s actions from 2021 to 2022 violated the human rights of Congolese civilians and the DRC’s sovereignty, and it could demand that Rwanda pay reparations or take corrective measures.
Challenges to Regional Mechanisms
The African Court has its limitations. First, its scope is international human rights law, not the jus ad bellum (right to war). The Court will assess violations of the African Charter and related treaties, such as unlawful killings (violating the right to life), displacement (violating rights to security and property) etc. It does not explicitly decide that “Rwanda committed aggression” as a violation of the UN Charter. Rather, it addresses aggression indirectly by judging the effects (and perhaps the African Charter’s right of peoples to peace). This is largely a semantic difference. The underlying facts (Rwandan military involvement causing harm) are on trial, but legally the proceedings would remain within the bounds of human rights obligations.
Second, while African Court judgments are binding, compliance by States has been mixed. There is no police force to make Rwanda pay damages or desist from interfering in the DRC. If Rwanda loses, it might simply ignore the judgment or contest its findings. The African Union’s political bodies could add pressure for compliance, but again, politics may intervene. Rwanda is a member of the East African Community and has diplomatic influence, which it could use to mitigate fallout. In extreme cases, non-compliance could be referred to the African Union’s Assembly of Heads of State (per the Court’s Protocol), but expecting heads of State to sanction one of their own for a security operation may be optimistic.
This African Court case, brought by the DRC against Rwanda, is a landmark. It shows an African forum asserting judicial scrutiny over one State’s military actions on another’s territory. It reinforces that even absent ICC or ICJ involvement, there is a regional avenue to adjudicate allegations of aggression-related conduct.
The African Court’s inter-State procedure is grounded in Article 5(1)(d) of its Protocol, and it exists precisely to allow States to vindicate rights when individual victims cannot. Indeed, one motivation for the DRC’s lawsuit is to “facilitate access to justice for victims of human rights violations who would otherwise not be able to seek redress themselves due to the restrictions on individuals’ direct access.” This reference alludes to a critical nuance: Rwandan and Congolese individuals cannot directly bring Rwanda to the African Court because Rwanda withdrew the special declaration that permitted individual and NGO petitions.
Rwanda made that declaration in 2013, but in February 2016—on the eve of an African Court hearing in a case brought by a Rwandan opposition figure—Rwanda notified the African Union that it was withdrawing its acceptance of direct individual jurisdiction. The official reason given was that Rwanda objected to genocide suspects using the Court to challenge their convictions, but the effect was to slam the door on any new human rights cases brought by NGOs or citizens against the Rwandan State. Consequently, Congolese victims of Rwandan aggression cannot themselves file a complaint in Arusha (the seat of the Court). The only way to bring Rwanda before the Court was for the DRC (as a State party) to sue, which it has now done.
Conclusion
Efforts to prosecute Rwanda or its leadership for aggression in the DRC encounter significant jurisdictional and political barriers. The ICC’s aggression jurisdiction is essentially foreclosed by Rwanda’s non-membership and the Kampala Amendments’ opt-in structure, while the ICJ requires Rwanda’s consent, which is already withheld. Global human rights mechanisms are constrained by Rwanda’s non-acceptance of individual complaint procedures. Consequently, Africa’s regional system emerges as the most viable judicial path.
The African Commission’s 2003 decision condemned Rwanda’s intervention, and the African Court’s ongoing inter-State case may deepen that legal scrutiny. Although these bodies cannot formally prosecute individuals for aggression, they hold States accountable for large-scale violations tied to military incursions. In this way, Africa’s regional framework, particularly the African Court, can offer an indirect but meaningful route to address alleged aggressive behavior. This reinforces that even absent universal criminal jurisdiction, regional mechanisms can provide significant, albeit imperfect, avenues for justice.
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Winona Xu is a Research Fellow at the University of California, Los Angeles (UCLA).
The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
Photo credit: U.S. Air Force, SSgt Ryan Crane
