¹ President Kabila renamed Zaire Democratic Republic of the Congo in May 1997 after his victorious Alliance of the Democratic Forces for the Liberation of Congo/Zaire (AFDL) ousted President Mobutu from power and took over the country. The use of the name Zaire in this paper will refer to events which occured before May 1997. ² "People of Rwandan origin living in Congo or Banyarwanda comprise the Hutus, Tutsis and Twas. The population of Burundi and Rwanda are made up of three groups: the majority group of Hutus (85%), the Tutsis (14%) and the Twas(1%), who are pygmies and who, apart from the Great Lakes region, live also in the equatorial forest of Central Africa."... "Contrary to colonially created myths, the Tutsi-Hutu conflict is not a centuries old struggle between "Hamitic" pastoralists (Tutsis) and Bantu agriculturists (Hutu). For the Tutsi are not "Hamites." They are a Bantu people who share a common Bantu culture with the Hutu, with whom they speak a common Bantu language. Kinyarwanda in Rwanda, Kirundi in Burundi." Georges Nzongola-Ntalaja "Conflict in eastern Zaire" paper posted online by the Zaire.news (November 19, 1996) and reposted for wider distribution by the Africa Policy Information Center (APIC), Washington DC (hereinafter "Conflict in Eastern Zaire"), p. 2.

³ At its independence on 30 June 1960, the country was named "The Republic of the Congo." It became "The Democratic Republic of the Congo" in 1963. In 1971, Mobutu changed the name of the country to Republic of Zaire, an old Portuguese corruption of the name of the country's largest river. In May 1997, President Kabila renamed the country `"The Democratic Republic of the Congo" . ⁴ Laurent-D6sir6 Kabila proclaimed himself President of the Democratic Republic of the Congo on 19 May 1997 after his Alliance ousted Mobutu Sese Seko from power.

⁵ "The legal distinction between them [the Banyarwanda] and other Congolese became academic after Belgium took over Rwanda and Burundi in 1920 as League of Nations mandatory power and, in 1945, as United Nations trusteeship authority. For all practical purposes, Belgium governed Congo, Rwanda and Burundi as a single colonial entity known as "Le Congo Beige et le Ruanda-Urundi," with a single army, "La Force Publique," a single governor general in kinshasa and two lieutenant governors general in Lubumbashi and Bujumbura, respectively." See "Conflict in Eastern Zaire" op. cit., p 3. ⁶ Ibid, p. 3. ⁷ Ibid, p. 3. ⁸ Ibid, p. 3. ⁹ Report on the situation of human rigths in Zaire, prepared by the Special rapporteur, Mr. Roberto Garreton, in accordance with Commission resolution 1994/87 (E/CN.4/1995/67, 23 December 1994) p. 17 (hereinafter "Report by the Special Rapporteur"). ¹⁰ See "Conflict in Eastern Zaire," op.cit., p. 3.

11 _Ibid. p. 3. ¹² Republic of Zaire, Note in response to the document of the Security Council of the United Nations (SI]9961869 of 2311011996) entitled "Letter dated 2311011996 addressed to the President of the Security Council by the Permanent Representative of Rwanda to the United Nations" (29/10/1996) (hereinafter "Note by Republic of Zaire"), p. 6. ¹³ See "Report by Special Rapporteur," op.cit., p.17. 14 ��In addition to their success in professional and business activities, the Banyarwanda in general and the Tutsi in particular were now in a stronger political position to use their proximity to Mobutu for greater economic and social gains. This they did with gusto, using their financial means and their newly found political power to acquire more land in heavily populated North and South Kivu Provinces. Needless to say, they could always find indigenous chiefs who were willing and even eager to privatize ancestral lands in exchange for money and/or political favors. All this increased resentment that other Zairians had towards them, which was partly based on the latter's distaste for the Banyarwanda's apparent social exclusiveness," See "Conflict in Eastern Zaire, op.cit., p. 4. ¹⁵ See "Report by Special Rapporteur," op.cit., p. 17.

¹⁶ Rapport de la Commission Parlementaire au Kivu en 1995, dit "Rapport Vangu" du nom de son President, p. 157, 158. ¹⁷ See "Report by Special Rapporteur," op. cit., p. 18. ¹⁸ Report of Human Rights Watch/Africa, "Zaire, attacked by all sides", March 1997, Vol. 9, No. 1 (A), p. 4. See also Report on the Situation of Human Rights in Zaire, prepared by the Special Rapporteur, Mr. Robert Garreton, in accordance with Commission resolution 1966/77 E/CN.4/1997/6/Add.l, 16 September 1996, p.6.

¹⁹ See "Conflict in Eastern Zaire," op. cit., p. 4. ²⁰ The relevant legal instruments governing this issue include "La Loi Fondamentale of 1960" (The Fundamental Law of 1960); the Constitution of the Republic of Zaire; the Decree Law No. 71-020 of 26 March 1971; the Law No. 81-002 of 29 June 1981; the Interim Constitution of 9 April 1994; the Resolution adopted on 28 April 1995 by the Transitional Parliament. ^{21 1} Translation from French by the author.

²² Arguing that the Banyarwanda were not part of the tribes of the then Congo at the time of the Berlin Conference in 1885 and that no new tribe was created in the territory of Zaire after its independence in I960, the former Zairian Government reaffirmed that Banyamulenge were not either a tribe of Zairians of Rwandan origin or Kinyarwanda- speaking Zairians. The Government accused Mr. Garreton, the Special Rapporteur on the situation of human rights in Zaire of spreading false historical facts according to which Banyarwanda were Zairians of Rwandan origin. The Government blamed Mr. Garreton for deceiving the international community and for exacerbating ethnic tensions between the indigenous Zairians and the Banyarwanda. See "Note by Republic of Zaire," op.cit., p. 5. ²³ Les 100jours de Kabila: changement, ordre et justice. Poll by BERCI, Kinshasa, July- August 1997, p.48. ²⁴ Translation from French by the author. ²⁵ See "Conflict in Eastern Zaire," op. cit., p. 4.

^Lo Report of Human Rights Watch/Africa, "Zaire, attacked by all sides", March 1997, Vol.9, No. (A), p.4. ²⁷ Bowing to internal and international pressure, Mobutu announced on 24 April 1990 that a multi-party political system will be introduced after a transitional period of one year. The transitional period was actually extended several times and the Transitional Parliament established by the National Conference set May 1997 as the date for multiparty Presidential and general elections. This would have ended the seven year- long transitional period and introduced the "Third Republic." But the take over of the country by Kabila's Alliance changed the plan of Mobutu's transitional Parliament, ₂₈ and thereby - the course of the country's history. 28 Report on the Situation of Human Rights in Zaire, prepared by the Special Rapporteur, Mr. Robert Garreton, in accordance with Commission resolution 1996/77 (E/CN.4/1997/6/Add.l, 16 Septem,ber 1996, p. 7. Luluabourg, now named Kananga, was the capital of the West Kasai province (located in the southwestern part of the Congo). ²⁹ "The most surprising aspect of the Resolution was that it treated the Banyamulenge as recent refugees. The Resolution included a list of people to be arrested and expelled, the cancellation of any sale or transfer of assets which benefitted "immigrants who have acquired Zairian nationality fraudulently," United Nations Integrated regional Information Network (IRIN) Briefing, 1, 9 September 1996.

^3o See footnote 16, in general. ³¹ Ibid., p. 19. ³² Ibid, footnotes 9 and 18, in general. ³³ See "Note by the Republic of Zaire," op. cit., p. 19..

³⁴ Third report on nationality in relation to the succession of States by Mr. Mikulka, Special Rapporteur, International Law Commission, forty-ninth session (A/CN.4/480 27/02/1997) (hereinafter "Third Report" op. cit, p.46. ³⁵ "It is not for international law but for the internal law of each state to determine who is, and who is not to be considered its national" Oppenheim's International Law, 9th ed. Vol.7 p.852 (London, Longman, 1992). See also "Third Report," op. cit., p.45. "Where it is stated that the State and the State alone is entitled to decide on this important matter. Nationality is thus essentially an instrument of the internal laws of states and, accordingly, the international application of the notion of nationality in any particular case must be based on the nationality law of the state in question." ³⁶ See "Third Report," op. cit., p.28. ³⁷ "Each state should enact laws concerning its own nationality, providing that the general rules of international law, and any specific rules which might be binding on it have been observed," Jos6 Franscisco Rezek, "Le droit international de la nationality " Recueil des cours III, Vol. 198 p. 341 ³⁸ See "Third Report," op. cit., p.29.

³⁹ The Democratic Republic of the Congo (or the then State of Zaire) is party to the following international human rights instruments: International Covenant on Economic, Social and Cultural Rights; International Covenant on Civil and Political Rights; Optional Protocol to the International Covenant on Civil and Political Rights; International Convention on the Elimination of all Forms of Racial Discrimination; Convention on the Prevention and Punishment of the Crime of Genocide; Convention on the Rights of the Child; Convention on the Elimination of all Forms of Discrimination against Women; Convention on the Political Rights of Women; Convention relating to the Status of Refugees; Protocol relating to the Status of Refugees. ⁴⁰ See "Third Report," op. cit., p.30. ⁴¹ See "Conflict in Eastern Zaire," op. cit., p. 4.

¹⁺¹ See "Conflict in Eastern Zaire," ^p. 4. ⁴³ See "Third Report," op. cit., p.36. 44 _Ibid, p.36. ⁴⁵ See "Report by Special Rapporteur," op. cit., p. 19,

⁴⁶ See "Conflict in Eastern Zaire," p. 5. ₄₇ Ibid., p. 5.