In March 2012 the International Criminal Court (ICC) found Congolese rebel leader Thomas Lubanga guilty of recruiting and enlisting child soldiers. The ICC verdict brought attention to Lubanga’s co-accused, General Bosco Ntaganda, for whom the ICC issued an arrest warrant nearly six years ago.
Like Lubanga, Ntaganda has also been charged with enlisting children under the age of 15 to actively participate in armed combat. However, unlike Lubanga, as of 2012 Ntaganda lives openly in the eastern Congolese city of Goma, and has been integrated into the national army of the DRC, Les Forces Armees de la Republique Democratique du Congo (FARDC), where he holds the rank of general. The question now is whether Congolese President Joseph Kabila’s commitment to arrest Ntaganda will materialise and what the consequences might be for the stability of the country, specifically the eastern regions.
When pressure for Ntaganda’s arrest increased following the ICC’s verdict against Lubanga, soldiers allegedly supporting Ntaganda started defecting from the Congolese army. Some of the defectors were soon arrested or returned to the army. However the incident had the effect of pushing President Kabila to finally announce publicly on11April 2012his intention to have Ntaganda arrested.
Some observers have argued that President Kabila aims to use Ntaganda’s arrest as a political tool to divert attention from his controversial re-election. Another key concern, over which much doubt has been expressed, is when and how Ntaganda would be arrested and handed over to the ICC. Given that the government has long been aware of Ntaganda’s whereabouts, but have never tried to arrest him, it may be difficult to do so now, considering that Ntaganda knows that he is no longer as safe as in the past. It is unlikely that President Kabila will transfer Ntaganda to the ICC. Instead, it is likely that Ntaganda might stand trial before a military court in the DRC. In addition to the existing security arrangements with neighbouring Rwanda, the risk of renewed armed violence could deter Kabila’s resolve to act against Ntaganda.
Even though Ntaganda denied responsibility for the fresh outbreak of violence between his soldiers and the army, he has enough capacity to threaten the fragile peace prevailing in North and South Kivu. Moreover, while Kabila’s announcement concerning the arrest of Ntaganda has been met with praise from human rights organisations and has been said to indicate a change of policy towards impunity of the military in the DRC, there are various problems associated with having Ntaganda prosecuted.
The charges against Ntaganda relate to the time when he was a commander in the Forces Patriotiques pour la Liberation du Congo (FPLC), and specifically the hostilities that took place in the Ituri province of the DRC in 2002 and 2003. However, after the ICC issued an arrest warrant, Ntaganda has lived with near impunity in the DRC and allegedly continues being involved in crimes such as ethnic massacres, rape and the recruitment of child soldiers. To arrest and prosecute Ntaganda in the DRC is one thing, to ensure the fairness of his trail at this point is another. The DRC has a poor record of holding military officers accountable for mass violence. The DRC’s military courts have often failed to meet the minimum international standards for a fair trial, especially as far as competence, independence and impartiality are concerned, and are prone to political manipulation. In numerous cases where suspects were convicted they have escaped from prison. For example, in September 2011, nearly 1000 prisoners escaped from prison along with a militia leader who was on death row.
The DRC is a party to the ICC Statute, which obliges the Congolese authorities to cooperate with the ICC. Thus, if Kabila insists on prosecuting Ntaganda in the DRC, instead of having him transferred to the ICC, there should be enough guarantees that the trial would be transparent. Providing such guarantees would require the DRC to engage in substantial legal reforms requiring the creation of new institutions, which can be very costly and time consuming. An insistence on having Ntaganda prosecuted in the DRC will probably result in even further delayed justice and would also mean that the DRC has not honoured its international commitments to the ICC.
In the past, the government has stated that the reason for Ntaganda’s impunity is that arresting him would undermine the peace process. The fact that the defections from the military encouraged by Ntaganda were so quickly and successfully handled by the government shows that they can indeed go as far as arresting him while still exerting control over the military. Also, Ntaganda’s call for support only led to a few hundred of his supporters defecting with many of them returning to the military as soon as they faced the crackdown of the government. This proves that Ntaganda is perhaps no longer as important a peace partner as previously thought.
It is indeed a positive step that Kabila has finally announced his intent to have Ntaganda arrested. However, delaying the process could have at least two main consequences: First, it could provide Ntaganda with the necessary time to reorganise his troops and oppose resistance. Second, some unresolved issues in terms of the Disarmament Demobilisation and Reintegration process could resurface and be used as an excuse for more violence. The FARDC is widely considered to be the worst perpetrator of violence in the country. Soldiers from the national armed forces are seen as responsible for much of the on-going rape and murder in the DRC.
The continued political violence and chaos in the DRC following the recent and legislative elections might benefit some elements within the armed forces and the political elite. However, it remains one of the major impediments to an effective and successful post conflict reconstruction process.
President Kabila is facing a challenge to consolidate his legitimacy in the eyes of the international community but also to keep the fragile balance of power in the Eastern DRC. If Kabila uses this opportunity to have another alleged war criminal sent to The Hague, he may be able to reassure both citizens and the international community on his commitment to end impunity.
Whether Ntaganda is transferred to The Hague or not will ultimately determine whether the verdict against Lubanga would be remembered as the catalyst to end the impunity of the FARDC, or as a single but important victory for the victims of war crimes in the DRC.
David Zounmenou and Naomi Kok, Senior Researcher and Research Intern, Conflict Prevention and Risk Analysis Division, ISS Pretoria