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19 April 2014
 

 

The Institute for Security Studies is an African organisation which aims to enhance human security by providing independent and authoritative research, expert policy analysis and advice, and training and technical assistance.

 

 
 
   
 
 
Article by: ISS, Institute for Security Studies
 
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On Tuesday 26 March, Bosco Ntaganda, a former rebel leader accused by the International Criminal Court (ICC) of committing war crimes and crimes against humanity in the Democratic Republic of Congo (DRC), appeared for the first time before the court. The appearance came a week after Ntaganda handed himself over to United States (US) embassy officials in Kigali, Rwanda and requested immediate transfer to the ICC. Through the cooperation of US and Rwandese authorities, Ntaganda was sent to the ICC on 22 March. While the reasons for his surrender are unclear, what is apparent is that Ntaganda has chosen to face justice at the ICC instead of continuing life as a fugitive.

The significance of this, for the ICC and international criminal justice in general, cannot be underestimated for a number of reasons. First, Ntaganda – after almost seven years on the run – is the first person for whom the ICC issued an arrest warrant who has voluntarily surrendered himself to the court. Eleven others for whom arrest warrants have been issued for situations in the DRC, Côte d’Ivoire, Libya, Sudan and Uganda remain at large.

Second, the ICC received ready cooperation from the US and Rwanda. Both countries have not ratified the Rome Statute of the ICC and thus have no direct obligations to the court. Despite this, their decisions to cooperate with the court and swiftly transfer Ntaganda to The Hague are indicative of support for international criminal justice.

Third, Ntaganda’s surrender comes at a time when the DRC is embroiled in ongoing conflict in the eastern provinces of the country. Ntaganda is said to have been integral in stoking the conflict in various ways from mid-1990 to date. However, it should be borne in mind that the crimes for which Ntaganda is presently charged relate to his activities in the eastern DRC region of Ituri (north of the war-torn Kivu provinces that border Rwanda) between 1 September 2002 and the end of September 2003.

For his alleged involvement in the Ituri conflict, Ntaganda – a Rwandan-born Congolese citizen – is charged with seven counts of war crimes, including the enlistment and conscription of children under the age of 15, the use of children under the age of 15 to participate actively in hostilities, murder, attacks against the civilian population, rape and sexual slavery, and pillaging; and three counts of the crimes against humanity of murder, rape and sexual slavery, and persecution. During the time these offences were supposedly committed, Ntaganda was allegedly serving as the Deputy Chief of the General Staff of the Patriotic Forces for the Liberation of Congo (Forces Patriotiques pour la Libération du Congo, or FPLC), the military arm of the Union of Congolese Patriots (Union des Patriotes Congolais, or UPC), a rebel movement in the eastern DRC. In this capacity, it is believed that Ntaganda reported directly to Thomas Lubanga Dyilo. Lubanga Dyilo, currently in detention, made news in 2012 when he was the first person convicted by the ICC for the enlistment and use of children to actively participate in hostilities.

In addition to his involvement with the FPLC, Ntaganda – nicknamed ‘The Terminator’ – has over the years fought for several rebel groups. In the early 1990s, Ntaganda fought with the Rwandan Patriotic Army and from 2006 he was linked to the National Congress for the Defence of the People (Congrès National pour la Défense du Peuple, or CNDP) led by Laurent Nkunda. Ntaganda is also one of the key figures allegedly behind the November 2008 Kiwanja massacre in which approximately 150 people were summarily executed in under two days.

Despite all this, Ntaganda was integrated into the Congolese army following the attempt at demilitarisation and reintegration of rebels from the CNDP, and the Congolese government made no effort to arrest and transfer him to the ICC. At the time of his surrender, Ntaganda had defected from the army and had been linked to another rebel movement, the M23, from early 2012. It is believed that the splitting of the M23 in February 2013 following infighting prompted Ntaganda to flee from the DRC to Rwanda.

Despite several promises (and having previously cooperated with the ICC), the Congolese government did not arrest Ntaganda. Interestingly, the DRC itself has over the years issued arrest warrants for Ntaganda for allegedly committing, among other offences, torture, murder, illegal detention and arbitrary arrest. These warrants of arrest and those issued by the ICC were not executed, which further frustrated those who wanted to bring Ntaganda to justice.

The failure by the Congolese government to arrest Ntaganda and transfer him to the ICC – as it had done with Lubanga Dyilo – highlighted one of the major challenges facing the court: that it does not have its own police force and so relies on support and cooperation from Rome Statute states parties to make arrests. Ntaganda’s decision to surrender himself to the court is significant because it shows that the ICC can secure indictees for trial if they voluntarily surrender, even to non-state parties that are not bound by the ICC’s statute.

There are three ways in which an ICC accused can come before the court. First, when a summons to appear is issued, the accused can voluntarily present him or herself to the ICC. Second, when an arrest warrant is issued, the authorities in a particular state can apprehend and surrender the accused to the ICC. Third, when an accused for whom an arrest warrant has been issued hands him or herself over to the court. Given that when arrest warrants are issued this is done precisely because it is doubtful that a suspect will voluntarily appear, the third option – which Ntaganda recently took – tends to be the least likely. More so for ICC cases, which tend to focus on people in positions of power because of the prosecutorial strategy of going after those most responsible for international crimes.

Ntaganda`s appearance in the dock at the ICC on 26 March sends a strong message to perpetrators of international crimes that they too may face justice one day – whether they are delivered to court after arrest or because circumstances push them to voluntarily surrender. While this is only the beginning of the proceedings against Ntaganda, it is a highlight at a time when the ICC continues to struggle with securing the arrest of individuals like Ugandan Joseph Kony of the Lord’s Resistance Army and President Omar Hassan al-Bashir of Sudan.

Written by Ottilia Anna Maunganidze, Researcher, Transnational Threats and International Crime Division, ISS Pretoria

Edited by: ISS, Institute for Security Studies
 
 
 
 
 
 
 
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