Introduction
In this post, I explore three legal issues pertaining to Resolution 2773 (2025), adopted by the United Nations Security Council (UNSC) on 21 February 2025 in relation to the Democratic Republic of the Congo (DRC). This resolution addresses the ongoing offensive of the armed group M23 in the DRC, which started in January 2025 and is characterised by credible reports of atrocities against civilians and attacks against peacekeepers. First, I analyse the legal value of this resolution and its capacity to provide binding rules. Second, I question which conclusions on the involvement of Rwanda as an occupying power in the DRC can be drawn from this resolution. Finally, I offer some critical views on the frequent mention of attacks against peacekeepers in the resolution.
The Legal Value of Resolution 2773 (2025)
As is made explicit in the preamble, Resolution 2773 (2025) was adopted pursuant to Chapter VII of the UN Charter after the UNSC had determined ‘that the situation in the DRC constitutes a threat to international peace and security in the region’. The text of Resolution 2773 (2025) does not clarify whether the UNSC is acting under Article 40 of the UN Charter (provisional measures), Article 41 (non-forcible measures), or Article 42 (forcible measures), nor does it specify if the UNSC is recommending measures or deciding them (the two options provided by in Article 39).
However, whether a resolution of the UNSC is binding or not does not depend on the fact that it is adopted under Chapter VII or any of its provisions. Rather, the relevant test is whether the resolution at hand is a decision or a recommendation. In fact, Article 25 of the UN Charter affirms that ‘[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.’ According to the International Court of Justice (ICJ), this is the key test to determine whether a resolution is binding or not (Namibia opinion, para. 113). Interpreting a resolution, with specific attention to its terms, the discussions leading to it, the Charter provisions invoked and all relevant circumstances, is then necessary to ascertain whether a resolution is a binding decision or a recommendation (ibid., para. 114). Interpreting resolutions of the UNSC might not be easy, particularly in light of the absence of codified rules on their interpretation (see, e.g., Wood here and here, Palchetti, Franzina, Traoré). Although the practice of the UNSC demonstrates that an invocation of Chapter VII usually suggests the intention of adopting a binding decision (Sievers and Daws, 387-389), a Chapter VI resolution might be binding as well (Namibia opinion, paras. 113 and 115). Authorities agree that a resolution may include both some paragraphs that employ binding language and other paragraphs that have the character of recommendations (Wood and Sthoeger, 32). Accordingly, it is necessary to provide a line-by-line analysis of the language adopted in Resolution 2773 (2025).
Whenever the UNSC uses the word ‘decides’ or ‘demands’ it is providing for a binding decision (e.g., D’Argent, 1167; Sievers and Daws, 382; Bjorge). Thus, it is a decision of the UNSC that the M23 shall immediately cease hostilities, withdraw from all controlled areas, and fully reverse the establishment of illegitimate parallel administrations (Resolution 2773 (2025), para. 2). It is a decision that this withdrawal shall not be impeded (ibid.). Likewise, the provisions that all parties must allow humanitarian relief (ibid., para. 10), must cease attacks against peacekeepers and activities impeding their mandate (ibid., para. 14), and must cease various activities that may endanger air operations of peacekeepers and humanitarian actors (ibid., para. 16), are all decisions with binding character.
However, it is questionable whether the UNSC can impose binding obligations upon M23, which is a non-state armed group. Article 25 of the UN Charter pertains to obligations accepted by member states, which are the only addressees of this obligation (Kato). Similarly, Article 41 refers to member states only as the addresses of an obligation to apply non-forcible measures. Accordingly, in practice, states implement against non-state actors most of those obligations imposed by the UNSC, e.g. in the field of sanctions (Peters, 801-802; Sievers and Daws, 392). However, the ICJ has not excluded that the UNSC can impose obligations on non-state actors (Kosovo opinion, para. 115). Some authors concede that a ‘strictly consent-based paradigm’ excludes that the UNSC can bind directly non-state actors, but the ‘special quality of the UN Charter’ and the consistent (and unchallenged) practice of the UNSC suggest otherwise (Peters, 803-804; Wood and Sthoeger, 54). One author suggests that ordering a non-state armed group to cease hostilities may amount to a binding provisional measure under Article 40, which pertains to ‘the parties concerned’ (Borlini, 534). All in all, however, although it is difficult to find a justification on how the UNSC could impose directly on M23 a duty to withdraw from the DRC, but the UNSC looks confident in its ability to do so.
It is also debatable whether the UNSC has imposed on Rwanda a duty to ‘cease support to the M23 and immediately withdraw from DRC territory without preconditions’ (Resolution 2773 (2025), para. 4). This paragraph is introduced by the verb ‘call on’ which, depending on several circumstances, may indicate binding or non-binding nature. Whereas the ICJ has interpreted the almost identical phrasal verb ‘call upon’ as an indication of the binding nature of a resolution (Namibia opinion, para. 115), some scholars consider it to be an indication of non-binding character (e.g., D’Argent, 1167; Wood and Sthoeger, 39-40; Kato). All in all, whether ‘calls upon’ indicates ‘a binding or non-binding provision may not be clear from its contextual use alone’ (Sievers and Daws, 382). Some statements of the voting states – which have interpretive value in light of the aforementioned Namibia opinion (see Klamberg) – refer explicitly to an obligation upon Rwanda to withdraw: this is particularly the case of France (which refers to an obligation) and the UK (with a call for Rwanda’s withdrawal). However, other states, only referred to the withdrawal of M23 in their explanatory statements (e.g., China).
Does the UNSC Consider that Rwanda Is Occupying Portions of DRC?
Resolution 2773 (2025) affirms that Rwanda is participating in the M23 offensive (para. 6 of the preamble). It is unequivocal that the UNSC considers that Rwandan troops are present on the DRC territory since the UNSC ‘[c]alls on the Rwanda Defence Forces to […] immediately withdraw from DRC territory without preconditions’ (ibid. para. 4). Is this enough to consider portions of territory under Rwandan occupation?
Under Article 42 of the 1907 Hague Regulations, ‘[t]erritory is considered occupied when it is actually placed under the authority of the hostile army.’ In the context of significant scholarly debate (e.g., Koutroulis; Sassóli; Kalandarishvili-Mueller), the ICTY provided some guidelines that may assist in determining when a territory is under occupation: ‘- the occupying power must be in a position to substitute its own authority for that of the occupied authorities, which must have been rendered incapable of functioning publicly; – the enemy’s forces have surrendered, been defeated or withdrawn …; – the occupying power has a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt; – a temporary administration has been established over the territory; – the occupying power has issued and enforced directions to the civilian population’ (Prosecutor v. Naletilic and Martinovic, para. 217). These are useful guidelines in respect to the presence of Rwandan troops in the DRC.
The fact that Rwandan troops are present in the territory of the DRC is, in itself, an indication that an occupation may exist. However, it is unclear whether the UNSC considers that other indications of occupation exist.
In international law terminology, occupation is considered to be synonymous of effective control (Benvenisti, 43). The UNSC mentions ‘control’ in Resolution 2773 (2025), when it:
‘[s]trongly condemns the ongoing offensive and advances of the M23 in North-Kivu and South Kivu with the support of Rwanda Defence Forces (RDF), their control of the city of Goma, the capture of the airport and main entries of Goma on January 28, and of Bukavu on February 14 2025’ (para. 1, second emphasis added).
However, reading this statement in its entirely, it looks like the control is exercised by M23 with the support of Rwanda, rather than by Rwanda through M23. Likewise, the references by the UNSC to ‘the establishment of illegitimate parallel administrations in the DRC territory’ (ibid., para. 2) appear only in relation to the activity of M23, rather than Rwanda.
Three different situations must be distinguished. First, a state can establish an occupation over the territory of another state through actual authority exercised by an armed group under the former state’s control. In this case, the armed group is merely the means through which the occupation is established. This situation can be divided in three scenarios, depending on the degree of control of the state that is the occupying power (see, mutatis mutandis, Maddocks): the state can exercise complete control over the armed group (which becomes a de facto organ of the state), or effective control over the armed group (a test that is relevant for both attribution of state responsibility and conflict classification), or overall control only (a test that is only relevant for conflict classification and for the establishment of an occupation as per ICTY, Prosecutor v. Prlić, para. 334). What matters is that the ultimate authority over the territory is retained by the state. There is nothing in Resolution 2773 (2025) suggesting that the UNSC wants to take this position, even though Rwanda is clearly exercising significant forms of control over M23 that are relevant for different areas of international law (Bradley and Svicevic; Maddocks).
Second, a state that has established actual authority over a portion of a territory may decide to tolerate the activities of an armed group there without this terminating the situation of occupation. This is what happened in the very territory of the DRC, when Uganda occupied the region of Ituri but tolerated the presence of armed groups and other private actors exploiting the local natural resources. In this regard, the ICJ considered that Uganda was responsible for lack of prevention of illegal exploitation of natural resources in the territory it occupied (DRC v. Uganda, paras. 179 and 248). In this case, the state establishes actual authority but the public order in the occupied territory is disturbed by the activities of an armed group that does not exercise comparable authority. Nothing in Resolution 2773 (2025) suggests that Rwanda has established said authority.
Third, it is possible that an armed group establishes control over a portion of territory and invites or tolerates the activity of a state in that territory. This behaviour clearly violates the principle of non-intervention (Nicaragua v. USA, para. 205; see generally Roscini) but does not constitute a situation of occupation. Armed groups cannot establish occupations, but rather, only states in international armed conflicts can be occupying powers (e.g., SCSL, Prosecutor v. Sesay et al., paras. 982–988). If the armed group retains ultimate authority over the territory, then the support and even the presence of the state, although unlawful, does not amount to actual authority and does not constitute an occupation. In DRC v. Uganda, the ICJ held that providing training and military support to an armed group in the absence of any control over it does not trigger the application of the law of occupation outside Ituri (paras. 160 and 177). It looks like Resolution 2773 (2025) considers that the administration temporarily established in Eastern DRC belongs to M23 only. The only role attributed to Rwanda in this regard is a generic ‘support’ (paras. 1 and 4; para. 6 of the preamble), which entails the presence of Rwandese troops but not the exercise of actual authority by Rwanda.
Accordingly, Resolution 2773 (2025) does not support the idea that Rwanda is an occupying power in Eastern DRC. Clearly, this alone does not mean that, in light of the relevant facts, Rwanda is not occupying portions of the DRC, as claimed by the DRC Foreign Minister, but only that this conclusion does not transpire from Resolution 2773 (2025).
Legal Issues Pertaining to Attacks against Peacekeepers
Resolution 2773 (2025) is concerned with attacks against peacekeepers. The UNSC condemns attacks against peacekeepers dispatched both in the framework of the United Nations Organization Stabilization Mission in the DRC (MONUSCO) (para. 10 of the preamble) and the Southern African Development Community Mission in the DRC (SAMIDRC) (para. 11 of the preamble). In relation to MONUSCO, the UNSC ‘stresses that attacks against peacekeepers may constitute war crimes’ and ‘demands that all parties immediately cease all hostilities against peacekeepers, take all appropriate measures to ensure their safety and security, their freedom of movement as well as the unimpeded implementation of their mandates and the unimpeded return of MONUSCO’s personnel to Goma’ (para. 14).
The prohibition of attacks against peacekeepers is justified by the fact that peacekeepers, both those under UN egis and those dispatched by other organisations, are mainly deployed to protect civilians rather than to take part in a conflict as parties (Spagnolo). However, the involvement of MONUSCO makes it uncertain whether the legal framework protecting peacekeepers is fully applicable.
With Resolution 2098 (2013) the UNSC created, within MONUSCO, a Force Intervention Brigade (FIB) with the peculiar offensive mandate to neutralise armed groups threatening civilians and governmental authority in DRC, M23 above all (paras. 9 and 12(b)). The offensive nature of the Force Intervention Brigade appears to be out of line with the traditional principles of peacekeeping of non-use of force except in self-defence or defence of civilians, impartiality, and consent; rather, the UNSC has dispatched the FIB to conduct offensive actions against some of the belligerents in the DRC and in support of one of them (the government). Accordingly, most scholars consider that the FIB violates the principles of peacekeeping (e.g., Müller; Giblin). Concurring, I have concluded that it constitutes a UN intervention by invitation (here; also Labuda).
For the purposes of Resolution 2773 (2025), it should be stressed that, under the ICC Statute, ‘[i]ntentionally directing attacks against personnel, installations, material, units or vehicles involved in a … peacekeeping mission …, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict’ is a war crime (Art. 8(2)(b)(iii) in international armed conflicts, and Art. 8(2)(e)(iii) in non-international armed conflicts).
The key to this definition is ‘as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict’. To interpret this provision, it is necessary to consider the 1994 Convention on the Safety of United Nations and Associated Personnel, which specifically governs the status of peacekeepers and provides for their protection from attacks. Article 2(2) of this treaty affirms that:
‘[t]his Convention shall not apply to a United Nations operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies.’
Accordingly, a peacekeeping mission is not entitled to protection if peacekeepers take a direct part in hostilities or are involved in combat activities (ICC, Abu Garda, Decision on the Confirmation of Charges, para. 83; see also Dörmann, 159; Schabas, 263; Cottier/Baumgartner, 420-422). This appears to be the case of the members of the FIB who, due to their offensive mandate, are not protected as peacekeepers, but rather, are engaged in hostilities and combat activities (Arai-Takahashi, 20; Sonczyk, 39-40; Spagnolo, 170). Accordingly, attacking members of the Force Intervention Brigade does not constitute a war crime in all circumstances, contrary to what has been suggested, although dubitatively (‘may’), by the UNSC.
Clearly, the fact that the members of the FIB are not protected as civilians does not lift the protection afforded by international law to other components of MONUSCO. However, it may be difficult in practice for armed groups to distinguish between the Force Intervention Brigade and the broader MONUSCO. Sadly, the entire MONUSCO has suffered increased attacks since the deployment of the FIB.
Conclusions
Resolution 2773 (2025) is a welcome intervention by the UNSC in the dramatic humanitarian situation in the DRC, which threatens international peace and security beyond the region. In this post, I have argued that Resolution 2773 (2025) embodies some provisions that have binding character, even if its language pertaining to cessation of support and withdrawal by Rwanda is inconclusive. Similarly, it is doubtful that the UNSC can impose direct obligations on M23. I have also argued that the language of Resolution 2773 (2025) does not demonstrate that the UNSC believes that Rwanda is an occupying power in the DRC. Finally, I have provided some nuances to the UNSC’s assertion that attacks against MONUSCO peacekeepers may constitute war crimes because of the offensive mandate of the FIB.
