Mercenaries in the DRC crisis: What it means legally and ethically

Rwanda on Wednesday received a group of 288 mercenaries from Romania who had been fighting alongside the Congolese army (FARDC) and other armed factions, including militia groups like the genocidal FDLR and Wazalendo. These mercenaries surrendered following the M23 rebels' capture of Goma, the capital of North Kivu, and were subsequently transferred to Rwanda on January 29. The entire group is believed to be 2,000 who were hired by the Congolese government in their fight against the M23 rebels in eastern DR Congo. The presence of mercenaries in this conflict implies legal and ethical concerns, particularly regarding their motivations, accountability, and status under international laws. ALSO READ: DR Congo: European mercenaries surrender to M23, get safe passage through Rwanda The Legal stance on mercenaries Mercenaries are defined as individuals who engage in armed conflicts primarily for private financial gain. Unlike regular combatants, they do not qualify for prisoner-of-war status under international law and are subject to prosecution. ALSO READ: Timeline of events before and after M23 captured Goma The Geneva Convention’s’ Additional Protocol I (Article 47), lays out six conditions for defining a mercenary, including their financial incentives, lack of national ties to the warring parties, and specific recruitment for conflict. The 1989 UN International Convention against the Recruitment, Use, Financing, and Training of Mercenaries expands this definition, criminalizing mercenary activities aimed at overthrowing governments or destabilizing constitutional order. ALSO READ: Kagame, US Secretary of State discuss need to address root causes of DR Congo crisis In Africa, the 1977 OAU Convention for the Elimination of Mercenarism further reinforces this stance, declaring mercenary activities a crime against peace and security. This legal framework imposes penalties, including capital punishment, on individuals and states that support or employ mercenaries. It also mandates African nations to prevent the recruitment, financing, and transit of mercenaries within their territories. Besides these legal frameworks, the use of foreign fighters in the DR Congo conflict also directly violates international and regional agreements. ALSO READ: Kinshasa should stop destroying itself just for clout Congo’s justification for mercenary use The DR Congo has previously denied employing mercenaries and preferrd calling them private security companies tasked with training the Congolese national army, FARDC. However, legal expert argue that this justification contradicts both national and international military laws. Speaking to The New Times, Jean Baptiste Gasominari, a legal expert and an analyst of regional politics said; They claim these individuals are trainers helping FARDC adapt to advanced military technology. However, national security is tied to sovereignty, and foreign entities should not be embedded within a national army. ALSO READ: Monday shootings on Rwanda were deliberate –Deputy Spokesperson Mukuralinda He further clarifies the distinction between legitimate private security firms and mercenaries: Anyone can hire private security companies if they are legally registered—to protect individuals, businesses, or specific assets. However, they cannot train national armies or operate alongside them. Security companies are not permitted to use drones and heavy artillery. The moment they engage in active warfare, they cease to be security firms and become mercenaries. This is why the term 'mercenaries' is inextricably linked to how Congo has employed them. ALSO READ: Karega: Rwanda will 'never force' fleeing Congolese soldiers back to DR Congo Gasominari added that mercenary contractors have been deployed in the DR Congo since 2021, with their numbers steadily increasing over time. Meanwhile, the legal expert added that Rwanda’s decision to receive the surrendered mercenaries aligns with international norms regarding the treatment of war casualties. ALSO READ: Kinshasa could have avoided current crisis, says Rwanda envoy What are the likely implications? The surrender of mercenaries could significantly shift the balance of the conflict. Gasominari suggests that: With Goma under M23 control and mercenaries stepping away from the battlefield, the dynamics of the war may change. If those who fueled the conflict withdraw, diplomatic negotiations may become the only viable path forward. ALSO READ: DR Congo: Rwanda calls for neutralisation of FDLR, withdrawal of foreign troops Enforcement challenges Despite international prohibitions on mercenaries, enforcing penalties remains a challenge. Gasominari argues that international laws often lack clear enforcement mechanisms, making consequences uncertain: International laws are largely theoretical. Their effectiveness depends on a country’s willingness to enforce them. There is no single authority responsible for implementation. The fate of the surrendered mercenaries now rests with their countries of origin, which hold the right to prosecute them under domestic laws—if such laws exist. However, as Gasominari notes: A country cannot punish another nation’s citizens for mercenary activities unless they have violated their own domestic laws. The most that international bodies can do is issue condemnations and request compliance with legal standards. ALSO READ: UN commends Rwanda for heeding 'last minute call' to relocate Goma-based staff Can mercenaries operate without knowledge of their home countries? Gasominari acknowledges that many mercenaries operate independently of their home governments, stating: It is entirely possible for mercenaries to leave their countries without informing their governments of their intentions. However, if a country officially supports another state militarily, it can do so openly through formal agreements rather than under the guise of private security companies. He emphasized that fleeing to Rwanda is a natural course of action for anyone escaping war, as individuals in such situations do not adhere to legal protocols—what matters most in that moment is their safety. He explained that if they flee with weapons, they are considered defeated combatants who have crossed into another country's territory. In such cases, the host country disarms and accommodates them. However, if they arrive unarmed, they may be treated as civilians fleeing conflict. The decision on their future—whether they remain or are relocated can be determined later through appropriate procedures. In this case, the government announced that they would be facilitate to return to Romania, their country.

News

Mercenaries in the DRC crisis: What it means legally and ethically