Background

© EPA/Peter Dejong / POOL

Bosco Ntaganda. © EPA/Peter Dejong / POOL

Name: Bosco Ntaganda

Nationality: Congolese

Arrested: On March 18, 2013, Bosco Ntaganda voluntarily showed up at the United States embassy in Kigali, Rwanda and asked to be transferred to the ICC in The Hague. Ntaganda had two outstanding arrest warrants, the first issued in 2006 and the second in 2012.

Taken into ICC Custody: March 22, 2013

Charges: Thirteen counts of war crimes (murder and attempted murder; attacking civilians; rape; sexual slavery of civilians; pillaging; displacement of civilians; attacking protected objects; destroying the enemy’s property; rape and sexual slavery of child soldiers; and enlisting and conscripting child soldiers under the age of fifteen years and using them to participate actively in hostilities) and five counts of crimes against humanity (murder and attempted murder; rape; sexual slavery; persecution; and forcible transfer of population) allegedly committed in the Ituri district between 2002 and 2003.

Trial Start Date: September 2, 2015

Bosco Ntaganda is the former alleged Deputy Chief of the General Staff of the Patriotic Forces for the Liberation of Congo (FPLC), the armed wing of the Union of Congolese Patriots (UPC). Known as “the Terminator” or “Warrior” among his troops for his tendency to lead from the front and directly participate in the military operations, Ntaganda served in a number of rebel groups throughout eastern Congo for over a decade. In addition to his alleged leadership of the FPLC, Ntaganda held an instrumental position in the National Congress for the Defense of the People (CNDP). After a 2009 peace agreement between the Congolese government and the CNDP, Ntaganda served as a general in the Congolese army until 2012. In April 2012, Ntaganda and a group of Congolese soldiers mutinied to form the M23, a rebel group alleged to have committed horrific human rights violations, including summary executions, mass rape, and forced recruitment of child soldiers.

The following offers an overview of how the case at the ICC came about.

How did the ICC become involved in the DRC?

The Democratic Republic of the Congo became a state party to the founding treaty of the International Criminal Court, the Rome Statute, when it signed the treaty on September 8, 2000 and ratified it on April 11, 2002. This gave the ICC jurisdiction over war crimes, crimes of humanity, and genocide committed on Congolese territory or by Congolese citizens after July 1, 2002 – the date that the Rome Statute entered into force. However, the ICC only has jurisdiction in cases where the government proves unwilling or unable to investigate and prosecute those crimes. Thus, the ICC investigation into crimes committed in the DRC began only after the Congolese government formally referred the situation in the country to the ICC on April 19, 2004.

The ICC prosecutor initially chose to focus his investigation on the situation in Ituri due to the gravity of the crimes committed during the Ituri conflict. In 2008, the ICC prosecutor expanded investigations into North and South Kivu provinces in eastern DRC, which led to arrest warrants against two rebel leaders, Callixte Mbarushimana and Sylvestre Mudacumura. However, the ICC judges declined to confirm charges against Mbarushimana, and Mudacumura remains at large.

How did the prosecutor investigate and arrest Ntaganda?

The ICC Prosecutor’s investigation into the situation in the Ituri Province of eastern DRC officially began in June 2004. The investigation uncovered sufficient evidence to suggest that during the Ituri conflict the FPLC carried out repeated acts of enlistment, conscription, and use of children under the age of fifteen who were trained to participate in armed conflict. On August 22, 2006, Pre-Trial Chamber I at the ICC issued an arrest warrant alleging that there are reasonable grounds to believe that as the Deputy Chief of General Staff for Military Operations, Ntaganda used his authority within the FPLC to actively implement the policy of enlisting, conscripting, and using children under the age of fifteen to participate actively in hostilities.

On March 15, 2012, the situation in the DRC was reassigned to Pre-Trial Chamber II at the ICC. After receiving an application from the prosecution, the court issued a second, broader arrest warrant against Ntaganda on July 13, 2012. Based on materials provided by the prosecution, judges found reasonable grounds to believe that during the conflict in Ituri from September 2002 to September 2003, crimes against humanity and war crimes were committed. The warrant of arrest also stated that there were reasonable grounds to believe that Ntaganda, as a leader in the FPLC, is responsible as an indirect co-perpetrator for the crimes against humanity of murder, rape and sexual slavery, and persecution as well as the war crimes of murder, rape and sexual slavery, pillaging, and attacks against the civilian population.

On March 18, 2013, Ntaganda surrendered himself at the U.S. embassy in Kigali, Rwanda and asked to be transferred to the ICC in The Hague. Ntaganda’s surrender to the court was the first time an accused facing an active arrest warrant voluntarily submitted himself to the ICC.

Why were restrictions imposed on Ntaganda’s communications?

In August 2015, judges imposed restrictions on Ntaganda’s visits and communications, after finding that there were reasonable grounds to believe that he personally engaged in witness interference and coaching and also directed his associates to do so. According to these restrictions, Ntaganda’s telephone communications were permitted with only two individuals (a third contact was later added). The calls were actively monitored and limited in duration, language, and subject matter, with the use of coded language or discussion of case-related matters prohibited.

Ntaganda was permitted one hour of phone conversation per week, which judges later revised to three hours per week. The second set of restrictions were placed on Ntaganda’s visits, which were actively monitored. Conversations had to be in a language that could be monitored by the court’s Registry and could not involve any case-related discussions. Ntaganda was permitted to speak to his children through his wife, and he could record messages to be played to the seven children after review of their content by the Registry. On September 7, 2016, judges maintained the restrictions, stating that their continuation was necessary to ensure the safety of witnesses, prevent breaches of confidentiality, and ensure the integrity of proceedings. In response, Ntaganda went on a 14-day hunger strike and boycott of proceedings.

In February 2018, judges lifted all the restrictions, which had been in place for two and a half years. They determined that since the evidentiary phase of the case was coming to a close, it was no longer necessary to maintain these restrictions. The judges determined that, without further evidence of misconduct, maintaining any restrictions on Ntaganda’s communications would “unduly impinge upon his fundamental right to respect for private and family life, and thus be disproportionate to any residual need to maintain them at this stage of proceedings.” Accordingly, they lifted all restrictions to his telephone communications and visits.

Why did Ntaganda contest the charges over the rape of child soldiers?

Ntaganda contested the jurisdiction of the ICC to try him over the alleged war crimes of rape and sexual slavery of child soldiers in the Union of Congolese Patriots (UPC) by fighters from the same militia group. His lawyers argued in various submissions that under Article 3 of the Geneva Conventions of 1949, war crimes may not be committed by members of an armed force against members of the same armed force. According to them, the victim of a war crime in a non-international armed conflict must be a protected person within the meaning of Article 3, meaning a person “taking no active part in the hostilities.” Article 82(1)(a) of the court’s founding law, the Rome Statute, permits a party to a case to appeal a decision with respect to court’s jurisdiction. For its part, the prosecution argued that Ntaganda, as the UPC’s former deputy chief of staff, is criminally responsible for the rape and sexual enslavement of child soldiers in the militia group by its commanders and soldiers, and that the ICC had jurisdiction over those crimes.

Trial Chamber VI judges Robert Fremr (presiding), Kuniko Ozaki, and Chang-ho Chung dismissed the defense submissions, stating that the court’s statutory framework does not require victims of these crimes to be protected persons. According to the judges, limiting the scope of protection in the manner proposed by the defense “was contrary to the rationale of international humanitarian law, which aims to mitigate the suffering resulting from armed conflict.” Furthermore, judges determined that members of the same armed force are not excluded as potential victims of the war crimes of rape and sexual slavery, whether as a result of the way these crimes have been incorporated in the Rome Statute, or on the basis of the framework of international humanitarian law.

Appeals Chamber has affirmed the ruling of the trial chamber, noting that Article 8(2)(b)(xxii) and (2)(e)(vi) of the Rome Statute does not expressly provide that the victims of rape or sexual slavery must be “protected persons” in terms of the Geneva Conventions or “persons taking no active part in the hostilities.” That meant that members of an armed group are not categorically excluded from protection against the war crimes of rape and sexual slavery when committed by members of the same armed group.

Why wasn’t part of the trial conducted from Bunia, DRC? 

The trial is being held at the seat of the court in The Hague, the Netherlands. On March 13, 2015 Trial Chamber VI recommended to the court’s Presidency that opening statements in the trial be held in situ in Bunia, DRC. In principle, all parties (the prosecution, defense, and legal representatives of the victims) agreed that holding part of the trial closer to the location of the crimes and the victim community would be in the interest of justice.

However, further submissions by the prosecution and legal representatives of the victims raised serious security concerns in the region generally and to witnesses and victims specifically. After considering these factors, as well as the high cost of conducting opening statements in Bunia, the Presidency concluded that the benefits to holding part of the trial in situ are outweighed by the risks. The judges had determined that conducting the opening in Bunia would cost the court more than €600,000 (US$ 677,121), which could rise “unexpectedly,” and yet, given the length and nature of opening statements, the affected communities would have limited access to the proceedings.

In March 2018, judges also abandoned the idea of hearing the closing arguments in the trial from Bunia, due to the renewed fighting in Ituri that had resulted in the death of up to 150 individuals and the displacement of an estimated 60,000 area residents. The defense had supported the idea of holding the closing arguments in Bunia.

Who is paying for Ntaganda’s defense?

Under the Rome Statute, a defendant has the right to legal counsel during criminal proceedings. As is the case with Ntaganda, if a defendant claims he is indigent and cannot pay for legal representation, the court will provide legal aid during the pre-trial phase. However, the decision to provide financial assistance can be reversed at any time if an investigation conducted by the court registrar reveals that the defendant can bear the cost of his counsel.

During pre-trial proceedings, Ntaganda’s lead counsel was Marc Desalliers, a well-known international criminal lawyer who was also part of Thomas Lubanga’s defense team. However, in July 2014, Desalliers withdrew from Ntaganda’s defense, citing “irreconcilable views” with Ntaganda on the conduct of his defense. He did not elaborate on the differences. In August 2014, Stéphane Bourgon took over as Ntaganda’s lead defense counsel.

What is the background to the conflict in Ituri?

Often described as the DRC’s bloodiest corner, Ituri has long been the site of ethnic disputes between the Hema and the Lendu communities. The fighting initially stemmed from localized land conflicts between the two ethnic groups, dating back to the Belgian rule over Congo in the late-nineteenth century and intensifying in 1994 when the disputes became intertwined with the Hutu-led genocide of Tutsis in neighboring Rwanda.

In neighboring Zaire (now the DRC), President Mobutu Sese Seko’s three-decade dictatorship resulted in the gradual erosion of all state institutions and widespread discontent throughout the country. In 1996, the Alliance of Democratic Forces for the Liberation of Congo (AFDL), an armed rebel group, largely backed by Rwanda and Uganda, took control of Zaire and changed the country’s name to the Democratic Republic of Congo. In 1997, Laurent Kabila, AFDL’s leader, declared himself president.

Once in power, Kabila quickly turned on his former allies. Feeling increasingly threatened, Rwanda and Uganda aligned to engender a new rebel movement led by Congolese Tutsis, known as Banyamulenge. Kabila enjoyed increasing support from Zimbabwe, Angola, Burundi, and anti-Tutsi Congolese militias, Mai-Mai. Violent clashes between the two sides broke out between 1998 and 2002, becoming popularized throughout international media as “Africa’s first world war.”

The region’s rich natural resources largely fueled the conflicts and the international involvement therein. Driven by a desire to gain control of the region’s gold, diamonds, and timber resources, direct clashes between Ugandan and Rwandan militaries frequently occurred throughout Ituri and the larger region. As the conflict intensified, the Lendu began to identify with the Hutu, and the Hema with the Tutsi, exacerbating the longstanding conflict between the Lendu and Hema ethnic groups.

Despite UN involvement and the warring sides signing the Sun City peace agreement in April 2002, the fighting intensified, with the renewed attacks reinforcing the conflict’s underlying ethnic character. In August 2002, the UPC militia, together with the Ugandan army, launched an offensive to control Bunia, the main town in Ituri, deliberately killing Lendu, Nande, and Bira civilians throughout the attack. From August 2002 to March 2003, the UPC controlled Bunia, forming a Hema-controlled government under Thomas Lubanga, the leader of the UPC. After establishing its hold over Bunia, the UPC moved south to attack Songolo, killing approximately 100 citizens. In November 2002, the UPC attacked the gold mining town of Mongbwalu, where UPC combatants targeted and killed an estimated 200 Lendu civilians. Following the Mongbwalu offensive, UPC forces attacked Kilo, where they forced civilians presumed to be Lendu to dig their own graves before killing them. Described as an “army of children,” the UPC forcibly recruited children as young as seven, including girls, for military service.

In June 2003, a French-led European Union peacekeeping force intervened to halt the fighting. In September 2003, the United Nations Organization Mission in the Democratic Republic of Congo (MONUC) assumed peacekeeping responsibilities in Ituri.

The 1998-2003 war destroyed the institutional means to resolve these tensions peacefully. The conflicts dislocated many communities and resulted in a collapsed justice system, limiting the potential of traditional conflict-resolution mechanisms. The absence of the rule of law perpetuated the overall culture of impunity.

The ICC opened its investigation into the Congo in 2004 after a referral from President Joseph Kabila. Besides Ntaganda, the ICC issued arrest warrants against three rebel leaders in relation to crimes committed in the Ituri region: Thomas Lubanga of the UPC, Mathieu Ngudjolo of the Nationalist and Integrationist Front (FNI), and Germain Katanga of the Patriotic Resistance Front in Ituri (FRPI). In March 2012, the ICC convicted Lubanga of conscripting, enlisting, and using child soldiers during the Ituri conflict between 2002 and 2003. The ICC acquitted Ngudjolo in December 2012. In March 2014, the ICC found Katanga guilty of war crimes and crimes against humanity stemming from a February 2003 attack on civilians in Ituri. The Lubanga and Ngudjolo judgments were both upheld upon appeal.