Well-timed second arrest warrant for Bosco Ntaganda

About the author(s):

Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.

On Friday, the Pre-Trial Chamber II of the International Criminal Court issued a new arrest warrant for Bosco Ntaganda – the rebel leader nicknamed  ‘The Terminator’ – for crimes committed between 1 September 2002 and the end of September 2003, when he was Chief of Military in Thomas Lubanga Dyilo’s UPC (Union des Patriotes Congolais, UPC) and its military wing FPLC (Forces Patriotiques pour la Liberation du Congo).

The new arrest warrant relates to Ntaganda’s alleged responsibility, as indirect co-perpetrator, for crimes against humanity and war crimes committed in the Ituri District, Province Orientale of the DRC, between 1 September 2002 and the end of September 2003.

Based on the evidence presented by the Prosecutor, the ICC decided that there are reasonable grounds to believe that Bosco Ntaganda is responsible for three counts of crimes against humanity, including murder, rape and sexual slavery and persecution. It also decided that there were reasonable grounds to believe that Bosco Ntaganda is responsible for four counts of war crimes, including murder, attack against the civilian population, rape and sexual slavery and pillaging.

The new arrest warrant against Bosco Ntaganda is in addition to the arrest warrant which was already issued against him by the ICC in August 2006 for the war crimes of conscripting and enlisting children under 15 years old and using them to participate actively in hostilities. These are the same crimes for which Thomas Lubanga Dyilo – leader of the UPC/ FPLC – was sentenced last week to 14 years imprisonment.

The new arrest warrant could not have come at a better time considering the coincidence of two other major events last week which combined, were an all too painful reminder of Bosco Ntaganda’s continuing impunity.

The first event was the rendering of  the ICC’s first sentencing judgment for Thomas Lubanga Dyilo (see here for analysis) which although a proud moment for the court, was greeted with mixed emotions by local civil society organisations. On the one hand, they recognised that the judgment sent a strong signal of the power of international justice, but on the other hand were strongly critical of the paucity of charges against Mr Labanga which only related to the consription and enlistment of child soldiers and their use in active hotilities. In particular, civil society organsiations lamented the fact that the charges against Mr Lubanga had not included sexual violence, pillage and summary executions.

To the people of Northern Kivu, the judgement against Thomas Lubanga Dyilo was also a painful reminder of just how arbitrary international criminal justice can sometimes be. For during the years that Mr Lubanga sat day-after-day in the courtroom in The Hague, Bosco Ntaganda. his Chief of Military, was reported to be living the high-life in Goma. Bosco Ntaganda was regularly sighted drinking in bars and playing tennis in private clubs and had been promoted to General within the FARDC, the national army of the DRC. All this, despite the fact that he had gone on to lead another rebel group the CNDP (National Congress for the Defence of the People) which had been equally implicated in war crimes.

Which brings me to the second event last week which made the continuing impunity against Bosco Ntaganda doubly – if not triply – painful. Because at the same time as the ICC rendered its sentencing decision, the M23 rebel group was making rapid advances on the provincial capital of Goma in the east of the DRC. A good background to the M23 group is found here, but briefly it is made up of former CNDP rebels who had been somewhat unsuccessfully integrated into the Congoese army on 23 March 2009 under the peace agreement – hence their name, M23 (March 23).

It is widely alleged that Bosco Ntaganda is playing a key role in the M23’s command. In March 2012, Bosco Ntaganda lead a mutiny of 300-600 soldiers who left the FARDC following dissent about unpaid wages and poor working conditions. On 3 May 2012, Col Sultani Makenga lead another revolt from the army. It is thought that the M23 is made up of an alliance of these two groups and that the reason for their defection may have been largely because the DRC government was finally making signs that it was going to move on the arrest warrant against Bosco Ntaganda. Certainly, on 7 July 2012, a communique from Congo’s defence minister called for the army to seek out Bosco Ntaganda and arrest him.

To complicate matters further, it has been alleged by the United Nations Group of Experts on the Democratic Republic of Congo that Rwanda is substantially funding and arming the M23, in order to fight a proxy war with the FDLR. the Hutu rebel militia which remains encamped on its border.

In the light of the painful coincidence of these events, the new arrest warrant against Bosco Ntaganda was well-timed. At a time when his impunity was in the spotlight, it provided the much needed message to the civil society organisations of Northern Kivu that the international community is not going to let Bosco Ntaganda off the hook. Whether this will prove to be true, is yet to be seen.

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