International Judicial Monitor

Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law
Fall 2015/Winter 2016 Issue

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Hague Happenings

Bosco Ntaganda at the International Criminal Court

By: Iva Vukusic, International Judicial Monitor Correspondent in The Hague

Another trial has been ongoing at the International Criminal Court (ICC) in The Hague since early September 2015, with the accused Bosco Ntaganda in the dock. He is the former Deputy Chief of Staff and commander of operations of the Forces Patriotiques pour la Libération du Congo (Patriotic Forces for the Liberation of Congo, FPLC), the military wing of the Union des Patriotes Congolais (The Union of Congolese Patriots, UPC). Ntaganda is charged with war crimes and crimes against humanity committed in 2002 and 2003 in the Ituri Province, in the eastern part of the Democratic Republic of the Congo (DRC). The first warrant for his arrest was issued back in 2006, but he voluntarily surrendered only in March 2013, when he walked into the U.S. Embassy in Rwanda to turn himself in.

The significance of this case, according to a statement by Women’s Initiatives for Gender Justice, a non-governmental organization monitoring proceedings at the ICC, lies in the fact that ‘for the first time in international law, the ICC is prosecuting a senior military figure for acts of rape and sexual slavery committed against child soldiers within his own militia group’. The indictment deals with only a fragment of the alleged violations committed by Ntaganda and his troops, which Human Rights Watch (HRW) documented for over a decade. According to HRW, the significance of this trial is in, among other things, the message it sends to other militia leaders in the region still active today: ‘Seeing Ntaganda in the dock at the ICC should be a powerful reminder to other leaders of abusive armed groups that they too could face prosecution.’

Ntaganda is a Rwanda-born 43-year old who has been involved in the conflicts in the area since the time of the Rwandan genocide, when he fought alongside the current Rwandan president Paul Kagame, in the Rwandan Patriotic Army. Since then, he led units in the resources rich Ituri Province of the DRC, where his forces allegedly unleashed violence on the civilian populations. The violence (for which he is on trial at the ICC) was mainly against civilians perceived as not being members of the Hema ethnic group, mainly the Lendu, but also Bira and Nande groups. Ntaganda has a long history of commanding and fighting in militias and he was, along with his fighters, even integrated into the Congolese army back in 2009, but three years later he led a mutiny and allegedly became a leader of a new rebel group, the M23. That group has been accused of summary executions, rapes and the forced recruitment of children. What has likely led to his surrender was the increased infighting of M23 factions and possible threats to his life. What he left behind is, according to media reports, significant wealth in the form of ownership over businesses, hotels and land. He is said to have also controlled important smuggling routes in and out of the resources-rich region.

In June 2014, the charges were unanimously confirmed consisting of thirteen counts of war crimes (murder and attempted murder, attacks on civilians, rape, sexual slavery, pillaging, displacement of civilians, attacks on protected objects, destruction of property, enlistment and conscription of child soldiers under the age of fifteen) and five counts of crimes against humanity (murder and attempted murder, rape, sexual slavery, persecution, forcible transfer of population). According to the indictment, Ntaganda bears individual criminal responsibility pursuant to different modes of liability (direct perpetration, indirect co-perpetration, ordering and inducing or as a military commander for crimes committed by his subordinates). The accused has pleaded not guilty to all the charges.

Witnesses’ accounts describe the horrors the civilian population faced at the time of the crimes included in the indictment. For example, Witness P-016 spoke about the massacres in the town of Kobu and surrounding villages. According to his testimony, Ntaganda’s FPLC fighters were in town when his father was shot dead and his wife and children decapitated. Another witness, P-886, described how ‘many’ prisoners were held in an underground pit covered with an iron sheet which served as a makeshift prison in the town of Sayo. The same witness also testified to how Ntaganda’s fighters ‘terrorized’ the civilians of the area. In total, over 2,000 individuals have been granted victim status, enabling them to participate in proceedings. The victims are divided into two groups, each represented by their own lawyer: one group of child soldiers and the other comprising of victims of attacks.

Bosco Ntaganda and his forces have been linked to a number of crimes through the years in the east of the DRC, such as rapes, looting and murders. Much of the fighting has been attributed to the desire of various rebel groups and governments to control the resources-rich region, where gold, diamonds, coltan, timber and oil bring vast opportunities for financial gain. The richness in resources has been a curse for the civilians who suffer the consequences of the violent attempts to control the area. The fighting is said to have resulted in over five million deaths, mainly through starvation and disease, over a bit more than a decade, until 2008. The human cost of this prolonged violence has been immense.

Lower-intensity violence has persisted even after fragile peace deals in Ituri and the Kivus and populations continue to suffer the consequences. Women have suffered rape; victims’ family members have been killed and property destroyed. Some of these victims have been included, albeit in limited ways, in judicial proceedings at the International Criminal Court where several DRC cases have been dealt with. Among them is Thomas Lubanga, the first ever accused to be prosecuted at the ICC, receiving 14 years in prison for the recruitment and use of child soldiers. He was Ntaganda’s former boss.

Other DRC cases include those of Mathieu Ngudjolo Chui, who was acquitted by the judges and Germain Katanga, sentenced to twelve years in prison. Both these men were charged with the attack on Bogoro, a village in Ituri, in 2003 when at least 200 civilians were killed. The DRC remains one of the countries that the ICC has engaged with extensively and lessons learned in those trials keep informing decisions on strategy, especially for the Office of the Prosecutor led by Gambian lawyer Fatou Bensouda. These cases have also generated passionate discussions among professionals in the field as well as academics and human rights groups on issues such as sexual violence in conflict and the use of ‘conflict minerals’.

The prosecution will call over 80 witnesses, followed by those testifying for the defense. Therefore, at this stage, it is too early to predict when the proceedings will be completed. The fact that the ICC case is fairly limited and does not include other crimes allegedly committed after 2003 in the North Kivu province, by troops under Ntaganda’s command, exposes yet another limitation of international justice efforts. As in cases at other international tribunals in The Hague, victims of crimes not included in the indictment are thus left out of the judicial process and cannot hope for any redress from the ICC. For them, justice is, for now, simply out of reach.

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International Judicial Monitor
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with assistance from the American Society of International Law.

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