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Can the Ntaganda Trial Advance Accountability for Serious Violations Against Children in Armed Conflict?

Julia Freedson is the Director of Conflict Dynamics International’s Children and Armed Conflict Accountability Initiative.  The views expressed here do not necessarily reflect the views of Conflict Dynamics International or the Open Society Justice Initiative.

 Across the globe there is a broad failure to achieve accountability for serious violations against children in armed conflict (known as “CAC accountability”). More often than not, perpetrators of serious crimes against children remain unidentified and are not brought to justice. Such crimes include recruitment and use of children as soldiers, sexual violence, killing, maiming, and abduction of children. Even in cases where accountability programs exist, they often fail to achieve tangible outcomes that benefit children and their communities, and violations continue with impunity.

The upcoming trial of Bosco Ntaganda before the International Criminal Court (ICC) offers an important opportunity to make progress towards achieving CAC accountability. Ntaganda, the alleged former Deputy Chief of Staff and Commander of Operations of the Patriotic Front for the Liberation of Congo (FPLC) in the Democratic Republic of the Congo (DRC) is scheduled to face trial before the ICC in September 2015 on several charges, including allegedly enlisting and conscripting children under the age of 15 into the FPLC and using them to participate in hostilities in Ituri from 2002 to 2003. In addition, this case has the potential to establish a new legal precedent as it is the first time at the ICC that a senior military figure is being charged with acts of rape and sexual slavery against children within his militia group and under his command.

At the same time, the evolution of the Ntaganda case is an unambiguous example of the gap in remedying and preventing serious violations against children. Under a peace agreement in January 2009, Congolese authorities appointed Ntaganda as a general in the Congolese national army, despite evidence of alleged crimes against children by rebel groups under his leadership and a warrant for his arrest by the ICC. Furthermore, the Congolese authorities failed to enforce the ICC’s warrant for Ntaganda’s arrest for seven years before he voluntarily surrendered to the court in March 2013. His surrender came only after he and others led a mutiny from the Congolese army and formed the M23 rebel group, whose members are also alleged to have committed numerous war crimes, including killings, rape, recruitment of children.

In fact, at the time of writing there has not been a single national-level conviction in DRC for the recruitment and use of children, despite widespread evidence.  In part, the lack of convictions can be attributed to Congolese courts’ insufficient technical capacity and lack of resources to deal with conflict-related crimes against children, including the skills required to conduct age verification to support such charges. Additionally, DRC judicial authorities seem to have only limited awareness of the 2009 Congolese Child Protection Law, which prohibits the recruitment and use of individuals below the age of 18 into armed forces or groups and the national police, and sanctions violators with imprisonment and/or fines. The lack of convictions may be affected by the Congolese national army’s lack of territorial control over certain areas where non-state armed groups operate, which hinders their ability to effectuate arrests.

Still, the ICC’s Ntaganda case presents an opportunity to advance CAC accountability. According to Conflict Dynamics International’s Children in Armed Conflict Accountability Framework, which was published this past June, achieving accountability for violations against children in armed conflict requires action in four inter-related areas (“components”): assigning responsibility, enforcing laws and norms, reforming systems, and empowering children. Defining CAC accountability in this way is groundbreaking in that it provides a comprehensive structure for addressing the challenges that impede CAC accountability and reveals opportunities for advancement.

The Ntaganda case has potential to achieve tangible outcomes in all four component areas. In particular, there is potential to meaningfully empower children and affected communities, given that 1,120 victims are represented in the case.

Conflict-affected children and youth in DRC today face myriad challenges, including high levels of unemployment, poverty, exploitation, abuse, and the failure of successive disarmament, demobilization, and reintegration processes to prevent re-recruitment. These problems are largely the result of persistent armed conflict, insecurity, and the lack of state presence and access to humanitarian assistance in many parts of eastern DRC.

To help alleviate some of these challenges and enhance accountability outcomes, the ICC and Congolese authorities can work to involve affected children, youth, and communities in the proceedings and within related community projects. This can contribute to the provision of remedies, build resilience, and strengthen children’s protection from future violations. In part this can be achieved by increasing transparency and expanding communications and interaction with the affected communities. Additionally, relevant authorities can focus attention before, during, and after the case on the need to provide remedies for the harm suffered and support longer-term recovery programs.

There is an underlying push to include reparations in any outcome of this case. While it is not yet clear what form of reparations would be pursued, children, youth, and communities could benefit from both monetary and non-monetary reparations, including restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.

In the event that Ntaganda is found guilty but destitute and unable to contribute to monetary reparations (as occurred in the ICC’s case against Thomas Lubanga Dyilo), the court could still insist on mandatory, non-monetary reparations, such as acknowledgment of harm suffered, education programs to reduce stigmatization and marginalization of victims, and symbolic reparations such as commemorations or tributes to victims. Additionally, monetary reparations could be funded through the court’s Trust Fund for Victims, which primarily generates funds through voluntary contributions by states and private donations. Such reparations could support urgently needed medical and psychological care, access to education and other social services, as well as livelihoods and humanitarian programming.

For more information on the Initiative, please visit www.cacaccountability.org or follow on Twitter at @childrenCDI.  


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