the said conflict was manifested in particular by the intensity of the clashes,
their number, their duration, the types of weapons and military equipment
used, the quantity of munitions and the extent of the destruction.2526
165. In the light of the foregoing, the Court finds that the armed conflict between
M23 and FARDC is non-international in nature, within the meaning of Article
3 common to the Geneva Conventions.
166. The Court stresses that two alternative criteria27 are used to assess the
internationalization of a local conflict: Either directly, where the third State
sends its own troops alongside the armed group against the national forces,
or indirectly, where it controls the operations of the armed group. In the first
hypothesis, the involvement should have an impact on the course of
hostilities, while in the second hypothesis, an effective28 or a comprehensive
control29 could be enough, according to international jurisprudence.
167. According to reports from the Group of Experts, eyewitnesses, including
armed group leaders and combatants, officials of the Respondent State,
and diplomatic sources [also] reported the presence of RDF troops in border
areas, towns occupied by M23, and newly created RDF and M23
positions,30 including Kishehe and Bambu, Rutshuru, in the Mushaki area.
In February and March 2023, RDF soldiers of the Eleventh Battalion were
present in the area.31
168. In a nutshell, the Group of Experts indicates, in its reports, that there is
substantial evidence to establish that there has been direct involvement of
the RDF on the territory of the Applicant State in support of M23/ARC and
The mid-term report was submitted on 23 November 2022 to the Security Council Committee
established pursuant to Resolution 1533(2004) on the Democratic Republic of Congo, which considered
it on 9 December 2022. The report was transmitted to the President of the Security Council on 13 June
2023. See also § 30 of the mid-term report and § 40 of the final report.
26 Annex 23 of the mid-term report; §§ 36 and 37 of the mid-term report.
27 ICC, Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, 29 January 2009, § 209.
28 ICTY, Tadic, 15 July 1999.
29 ICJ, Military or paramilitary activities in Nicaragua (Nicaragua v. United States of America), Judgement
of 27 June 1986, [1986] ECR 115.
30 § 55 of the final report.
31 § 57 of the final report.
25
40