Congolese militia leader Bosco Ntaganda’s application for interim release from the custody of the International Criminal Court (ICC) has been turned down by the single judge handling his case. Judge Ekaterina Trendafilova ruled that Mr. Ntaganda should stay in court custody as he was a flight risk and had the potential to threaten or influence witnesses.
On March 18, 2013, Mr. Ntaganda walked into the American embassy in Rwanda and asked to be transferred to The Hague where two arrest warrants had been issued against him. The first warrant – issued in 2006 – alleged that Mr. Ntaganda, along with Thomas Lubanga, recruited, enlisted, and used child soldiers in armed conflict during 2002 and 2003.
The second warrant – issued in July 2012 – accused him of the crimes against humanity of murder, rape, and sexual slavery, and war crimes of murder, attacks against a civilian population, pillaging, rape, and sexual slavery.
In an application for interim release, his lawyer Marc Desalliers denied that Mr. Ntaganda had evaded justice – saying instead that the militia commander had been contributing to peace efforts, including serving in Congo’s army. He also said Mr. Ntaganda’s voluntary surrender showed he was ready to cooperate with the court. Furthermore, Mr. Desalliers argued in the August 20, 2013 application that Mr. Ntaganda had no passport or other travel documents and as such would remain on the territory of The Netherlands if the court released him.
However, Judge Trendafilova rejected these arguments. In a ruling on November 18, 2013, she noted that despite the issuance of two warrants of arrest against him, for more than six years Mr. Ntaganda did not choose to face justice, but instead managed to avoid apprehension “in total disregard of the serious accusations brought against him.”
She added, “His prior ability to escape for such a lengthy period of time, until the moment of his choosing, enhances his motivation to flee when the circumstances allow.”
According to the judge, the fact that Mr. Ntaganda surrendered to the court was not sufficient to justify his release. Instead, the judge’s determination had to take into consideration the circumstances of Mr. Ntaganda’s voluntary surrender, including its timeliness and the manner in which it took place.
“The evidence or material available before the Single Judge suggests that Mr. Ntaganda’s voluntary surrender was prompted by the likelihood of him being killed or by pressure imposed on him by the Rwandan Government,” the judge stated.
She explained that Mr. Ntaganda had lost the support of the Rwanda government and that his faction of the M23 rebel group was on the run and out of ammunition. Furthermore, stated the judge, there was word that the triumphant faction of the M23 had ordered that Mr. Ntaganda be killed. Additionally, the Congolese government had ordered Mr. Ntaganda’s arrest.
Judge Trendafilova noted that the charges Mr. Ntaganda faced were numerous and of such gravity that they might result in an overall lengthy sentence. Mr. Lubanga, his co-accused, was last year convicted of enlisting, conscripting and recruiting children into armed conflict and handed a 14-year prison sentence.
“Mr. Ntaganda’s mere awareness of the sentence imposed in quite a similar case such as that of Thomas Lubanga increases the possibility of him absconding,” the judge said.
Judge Trendafilova rejected the defense’s assertion that the risk of absconding was low since the accused was subject to United Nations sanctions, including a travel ban and an asset freeze. She stated that there was information indicating that Mr. Ntaganda had traveled twice to Rwanda in 2011 despite the existence of a travel ban. It was thus possible that he could still move outside of the Netherlands if he were released from custody. The Netherlands denied Mr. Ntaganda’s request to be released on its territory.
The judge also determined that Mr. Ntaganda had financial means to abscond. She noted that the M23 group carried out massive looting in the Congolese town of Goma during November 2012 of an estimated value of US$3 million. The group also allegedly collected an average of US$180,000 in taxes per month at check points. In addition, said the judge, sources indicated that Mr. Ntaganda owned “a fuel station, a flour factory in the center of Goma, which is run by his wife, a hotel in the same location, and several bank accounts in Rwanda under the name of his wife.”
Finally, the judge noted that the identity of more than 30 witnesses has been disclosed to Mr. Ntaganda, and given his “documented history of violence” and the seriousness of the charges against him, “one cannot rule out the possibility of him influencing, threatening or intimidating witnesses and victims and/or their family members.”
The confirmation of charges hearing for Mr. Ntaganda is scheduled for February 2014.