International Justice Monitor

A project of the Open Society Justice Initiative

Will ethnic allegiances protect Bosco Ntaganda?

Dear readers – please find below a commentary written by Olivia Bueno at the International Refugee Rights Initiative (IRRI) in consultation with Congolese activists.  The views and opinions expressed here do not necessarily reflect the views and opinions of IRRI or of the Open Society Justice Initiative.

The March 2012 conviction of Thomas Lubanga for war crimes by the International Criminal Court (ICC) increased international and NGO pressure on the government of the DRC to arrest Bosco Ntaganda, who was charged alongside Lubanga for crimes committed in Ituri. Ntaganda is the subject of an arrest warrant issued by the ICC in 2006 for war crimes and crimes against humanity allegedly committed in 2002-2003 in Ituri. On July 13, 2012, the ICC Chambers handed down a second warrant of arrest in relation to three additional counts of crimes against humanity for acts of murder, rape and sexual slavery, and persecution.

As chronicled in a previous blog various international actors and NGOs pushed for Ntaganda’s arrest. They have been joined by opposition politicians, including the Mouvement pour la Liberation du Congo (MLC), the Union pour la Democratie et le Progres Social (UDPS) and allies. These groups have called for Ntaganda’s arrest and unconditional surrender to the ICC following the precedents set by the transfer of Lubanga, Germain Katanga, and Mathieu Ngudjolo Chui to The Hague. Opposition voices have criticized the government’s failure to arrest and surrender Ntaganda, saying that it shows that they are not truly committed to fighting impunity. They warn that the government risks serious public backlash if Ntaganda is not arrested, as some Congolese see this as application of double standards. At the same time, NGOs have continued to organize and on May 3, 142 Congolese and international NGOs, sent a joint open letter to the US, Belgian, and French governments demanding international leadership in securing Ntaganda’s arrest.

This activism is taking place against a backdrop of violence in the eastern DRC. In late March, a number of officers associated with Ntaganda and his former rebel group the Congrès national pour la défense du peuple (CNDP) deserted the army and took up arms. Although the rhetoric of the rebellion focuses on the failure of the government of the DRC to live up to commitments made in its March 23, 2009 agreement with CNDP (from which the movement derives its name, M23), there has been speculation that the timing of the rebellion was launched as a show of force against the rumored arrest of Ntaganda. Whatever its motivation, the M23 has been accused of serious human rights violations and press reports estimate that as many as 200,000 Congolese may have been displaced since April.

In April, President Joseph Kabila, who had long argued that Ntaganda should not be arrested because he was critical to peace in the DRC, changed his tune. Speaking in Goma, Kabila told the Congo News Agency, “We can arrest him ourselves. We have more than one hundred reasons to arrest him and put him on trial right here.” He went on to assert his independence from international pressure, “Look, I do not work for the international community.”

The statement was initially welcomed, but there has been increasing speculations about its implications. Despite Kabila’s affirmation of his ability to arrest Ntaganda, he expressed no particular commitment to do so. Some express doubt that the arrest of Bosco Ntaganda was ever the President’s intention in making his speech. One blogger from the region, Jean-Mobert N. N’Senga, speculated that the speech was intended “to feign firm resolution to give in the pressure to arrest Bosco Ntaganda, and then to show that this act could add fuel to the conflict in the region.” In other words, this author speculates that the threat to arrest Ntaganda was made solely to give Ntaganda an excuse to show how dangerous it would be to do just that.

As violence continues, questions continue to be asked as to whether or not Ntaganda will be arrested and, if he is, what will happen to him. Some wonder whether Ntaganda will ultimately be protected by Rwanda. In the words of one activist, “Will Bosco Ntaganda be arrested … or will he disappear into the wild as was the case with Jules Mutebusi and Laurent Nkunda?” Both Mutebusi and Nkunda had strong relationships with Rwanda and appear to have benefitted from these relationships to avoid justice. Laurent Nkunda, the former leader of the Congrès national pour la défense du peuple (CNDP)—accused of having committed a number of

human rights abuses— was ousted in 2009 by Ntaganda and placed under house arrest in Rwanda. Although lawyers in Rwanda reportedly filed a legal challenge to his detention, Congolese see Rwanda as shielding one of its own. As one activist noted, “Many sources report that he is actually at liberty.” Professor Kalele Ka-bila, a political activist and university professor, recently argued on CongoMikili News, an online newspaper, that Rwanda was protecting Ntaganda as it had protected Nkunda:

They said the same thing about Nkundabatware, that they were going to bring him here to try him, the Minister of Information told us that… Did he ever come? Was he ever tried? It is the same joke, the same theater, that they are trying to play now.

Jules Mutebusi was an officer with the Rassemblement Congolais pour la Démocratie (RCD) in Congo and later rebelled in 2004, taking Bukavu and threatening Congo’s transition. In 2005, Rwanda’s Interior Minister Protrais Musoni told the BBC that Mutebusi and his men had been given “asylum-seeker status” in Rwanda.

This protection is seen in a definitively ethnic light. In the opinion of one NGO activist, the problem is “the lack of will to deliver a Tutsi. International criminal institutions never manage to go after them, the ICTR didn’t dare, so how can they deliver Bosco?”

In the case of Ntaganda, speculation is rife that Rwanda is protecting him by providing military support to the M23. Rwanda denies supporting M23, and the M23 claims to have a political agenda unrelated to the fate of Bosco. Regardless of whether Rwanda is militarily engaged, there is also the possibility that Rwanda may extend legal protection. In the words of one activist, “Given that the ICC itself has identified Ntaganda as a Rwandan citizen, that gives him the possibility of living peacefully in Rwanda.”

The ICC arrest warrant against Ntaganda identifies him as a “presumed Rwandan national.” If Ntaganda is a Rwandan national and if he takes refuge in Rwanda, he would benefit from strong protection from the Rwandan constitution, which provides in Article 25 that “no Rwandan may be extradited.” In addition, Rwanda is not a party to the Rome Statute of the International Criminal Court, which could complicate efforts to pressure Rwanda to surrender a national to the ICC if he were on Rwandan soil.

Even if, despite all these obstacles, Ntaganda were to be arrested, politicians are divided on whether he should be delivered to The Hague or national justice institutions. Although the opposition has called for Ntaganda’s surrender to the ICC, Kabila’s People’s Party for Reconstruction and Democracy (PPRD), has called for a national trial. During a press briefing on May 3 in Kinshasa, the secretary general of the PPRD, Evariste Boshab, denounced international pressure as an attempt “to destabilize democratic institutions, carried out by malicious people.” He explained the party’s position: “Surrender of a citizen to the ICC does not happen automatically. We have our courts. The PPRD has always favored the national courts.” North Kivu provincial authorities echo similar sentiments. Governor Julien Paluku has promised that Ntaganda would be brought before the Congolese courts to answer for his acts.

What will ultimately be Ntaganda’s fate? If he is arrested, what will be the reaction of his ethnic community? Of the government of Rwanda? If he is not, what will the implications be for the broader fight against impunity in the DRC? In the context of assertions that Ntaganda is being protected on the basis of his ethnic affiliation, what impact would impunity for Ntaganda have on inter-ethnic relations?