IV. The Price of Inclusion

Impunity ... can be an even more dangerous recipe for sliding back into conflict.

—UN Secretary-General Kofi Annan[137]

In contrast to situations where alleged war criminals have been marginalized through indictments or arrest warrants, negotiators elsewhere have opted to include human rights abusers in a coalition government or a unified military in the hope of neutralizing them or enhancing stability (in effect granting them a de facto amnesty). Unlike the situations above where there are positive effects resulting from marginalization, inclusion of alleged perpetrators in government has not proved to be the panacea that it was thought to be. While efforts to bring human rights abusers to justice undoubtedly present challenges, making deals with criminal suspects in order to achieve peace can have far-reaching negative consequences. Human Rights Watch has documented how in post-conflict situations, leaders with records of past abuse have continued to commit abuses and have allowed lawlessness to persist or return. Rewarding alleged war criminals with government positions might actually encourage others to engage in criminal activity in the hope of receiving similar treatment. Furthermore, inclusion of criminal suspects in government erodes public confidence in the new order by sending a message to the population about the acceptance of such abuses and by further entrenching impunity. The following are examples of situations where this form of impunity has carried a high price.

A. Afghanistan

From 2001 onwards various international military powers, in particular the United States, relied upon mujahedin leaders and other warlords and regional strongmen to defeat the Taliban regime. Rather than marginalize the worst perpetrators from Afghanistan’s recent past, key international actors assisted in bringing them under the umbrella of the new post-Taliban government. Justice was viewed as a luxury that could be sacrificed in favor of stability. Serious past human rights abuses including abduction, summary execution, torture of detainees, rape, and looting were overlooked.[138] The result has been continuing violence and abuse of power by some of the warlords who now wield government power. Inclusion of those with blood on their hands in the new order eroded the legitimacy of the Afghan government in the eyes of Afghan people and has been used by opponents of the government to discredit it. Ignoring abuses has also fostered a culture of impunity and increasing lawlessness.

After the fall of the Taliban in November 2001, the United Nations brought together leaders of Afghan ethnic groups in Germany to create a road map for representative government in Afghanistan.[139] The resulting Bonn Agreement called for the creation of a loya jirga (grand council), which was convened in June 2002, to choose an interim government.[140]

The loya jirga’s selection process explicitly called for the exclusion of delegates who had engaged in human rights abuses, war crimes, looting of public property, or the drug trade.[141] The loya jirga also excluded anyone with links to terrorist organizations or who, “in the eyes of the people,” had “been involved indirectly or directly in the killing of innocent people.”[142] However, the Special Independent Commission for the Convening of the Loya Jirga was unable to monitor and enforce this prohibition. Nor was it made a priority: the warlords’ cooperation was seen by the UN facilitator Lakhdar Brahimi as crucial to the success of the loya jirga, so there was little willingness to confront the issue of their past records.[143] The European Union (EU) special envoy to Afghanistan, Francesc Vendrell, described the sentiment at the time: “In early 2002, the Americans were relying on the warlords and commanders to pursue the War on Terror. There was a lot of emphasis on stability and therefore justice had to wait. These unsavoury characters were seen as providing stability.”[144]

The Afghan government, intergovernmental organizations, and international military powers—in particular the United States—thus relied on alleged war criminals, human rights abusers, and drug-traffickers by including them in the government instead of prosecuting them. The result was reinforcement of a culture of impunity that worked against peace and stability and that fueled public disillusionment with the new Afghan government.[145]

A Human Rights Watch mission looking at the loya jirga found that alleged war criminals in many areas were able to manipulate the process of delegate selection.[146] In several cases in northern and western Afghanistan, well-known regional warlords selected themselves to participate as delegates. In other areas, through shootings, threats, beatings, and arbitrary arrest, warlords and provincial government leaders were able to monopolize the selection processes and to hand-pick their own candidates.[147]

During the loya jirga several powerful military and party leaders threatened and spied on less powerful delegates. Human Rights Watch documented numerous cases of threats, arbitrary arrests, and killings that took place at the time. The intimidation experienced during the loya jirga had a chilling effect on political activity as events remained fresh in the minds of former delegates and political party leaders.[148]

During the September 2005 national assembly and local council elections, Human Rights Watch reported that the continuing “warlord problem” compromised participation in the election process.[149] The fear inspired by commanders whose past abuses remained fresh in the minds of ordinary Afghans had an impact on the election processes. Local commanders told voters and community leaders for whom to vote, sometimes with direct threats.[150] Several candidates exercised self-censorship and did not campaign outside of urban areas for fear of harassment or attack. Many voters and candidates told Human Rights Watch that they were frustrated by the fact that candidates with records of past abuse could not be sidelined from the process, and there was cynicism about claims that the democratic process would weaken and marginalize unpopular abusers: as one Pashtun elder said, “Until the government in Kabul says to them that they cannot take part in elections, until there is justice for all that they did to us, we cannot trust this process.”[151] A candidate running for office commented,

The government says it has to let these men be candidates because they could make problems. That is not true, but that is what they say. Well, if the central government cannot stand up to them, how can they expect the people here—who live with these bloodthirsty commanders every day—to vote against them? We should not have to bear the pressure. It is the job of government.[152]

The 2005 elections had been an opportunity to deepen the legitimacy of Afghanistan’s governmental institutions and hasten the end of the rule of warlords and gunmen, but they did not fulfill their promise. Instead, warlords and their proxies were elected.

In 2005-06 Human Rights Watch documented that many leaders implicated in egregious human rights abuses in the 1990s had become Afghan ministry officials or presidential advisors, or controlled puppet subordinates who held official positions.[153] They included several of the worst perpetrators from Afghanistan’s recent past, such as Abdul Rabb al Rasul Sayyaf, Mohammed Fahim, Burhanuddin Rabbani, Gen. Abdul Rashid Dostum, and current vice president Karim Khalili, who despite having records of war crimes and serious abuses during Afghanistan’s civil war in the 1990s were allowed to hold and exploit positions of power.[154] A February 2009 Time Magazine article describes how General Dostum, implicated in the suffocation deaths of hundreds of captives inside shipping containers, acts as an emissary for President Karzai.[155] On May 4, 2009, Karzai selected Mohammed Fahim, whose troops were implicated in abuses such as rape and summary executions in 1993, to be one of his vice-presidential running mates in the next elections.[156]

Persistent and recurring human rights violations have been carried out by officials such as Dostum and Sayyef who would not have come to power without the intervention and support of the international community in 2001.[157] As a researcher with the Afghanistan Human Rights Commission put it, “Right after the collapse of the Taliban, the government had the opportunity to go after these commanders because they were scared and weak. Instead, the international community and the government supported them and made them stronger. They didn’t bring them to justice. They waited until they committed more crimes. For this we ousted the Taliban?”[158]

In 2003 another observer noted, “A very short-term compromise was made in 2001 after the collapse of the Taliban that we need stability, therefore let’s bring all these warlords into the tent and keep them on our side.”[159] Years on, the “short-term compromise” is entrenched in Afghanistan’s political dynamics. A former NATO official in Afghanistan stated in 2009 in regard to alleged major war criminals, “There are so many other things we have to worry about so why go and open this can of worms?” This is an attitude shared by many.[160] Although bringing warlords implicated in crimes to trial presented significant challenges in post-Taliban Afghanistan, the decision not to take on that challenge and instead to include them in government has been costly. Abusive actions by local strongmen and their forces have undermined the government’s legitimacy and caused widespread fear and cynicism among Afghans.[161] As Afghan human rights activist Nader Nadery said, “The militia leaders became part of the structure and began using their powers again. They made institutions unprofessional, unqualified and corrupt. There’s a culture of impunity. Everyone thinks they’re immune from prosecution, so they do whatever they want.”[162]

By 2006 the Taliban and other insurgent groups in Afghanistan had gained increased public support due to the government’s failure to provide essential security and development. A December 2008 International Crisis Group report on policing in Afghanistan concluded that the lack of rule of law lies at the heart of much popular disillusionment and that the weakness of law enforcement has contributed to the appeal of insurgents in Afghanistan.[163] The ongoing lawlessness helps the Taliban portray its rule in the 1990s as one of relative law and order.[164] The Taliban is able to use the presence of warlords in the government and the poor perceptions of police to discredit President Karzai’s administration and its domestic backers. Taliban leader Mullah Omar said in a communiqué, “If the police of a state consist of people who are immoral and irreligious ... how can they protect the property, dignity and honor of the people?”[165] The same argument could be made with respect to the militia leaders holding power in government. Thus, the accommodation of warlords and failure to secure justice for their misdeeds have ultimately served to tarnish public perception of the Afghan government and, in turn, may contribute to ongoing instability.[166] As Francesc Vendrell stated,

In Muslim society, justice is the most essential element, and here in Afghanistan, people simply don’t see it exist. They see impunity, they see a few people become extremely wealthy and they see cruelty. Therefore I think many of them are fence sitters. And you can’t hope to win an insurgency when the civilians are sitting on the fence.[167]

An extensive survey by the Afghan Human Rights Commission conducted in 2004 found that the vast majority of Afghans considered justice for crimes very important and felt that bringing suspected war criminals to justice—and soon—would improve stability.[168] Little progress has been made, however, notwithstanding the Afghan citizenry’s emphatic support for justice initiatives. A positive development occurred in December 2006 when the Afghan government approved an Action Plan on Peace, Reconciliation and Justice that included establishment of a justice and accountability mechanism. However, following the announcement of the action plan, a coalition of former warlords, ex-Taliban officials, and former communist leaders pushed a highly controversial resolution through both houses of the parliament. The bill provided full amnesty for all war criminals and banned public criticism of government authorities and militia leaders who ruled Afghanistan after the demise of the communist government. In March 2007 the Afghan parliament passed a revised resolution granting itself a general amnesty, yet recognized the rights of victims and their families to bring civil or criminal claims. The president did not sign the resolution into law so it is unlikely ever to become operative.[169] Nonetheless, the effort to secure amnesties demonstrates another peril of including alleged war criminals in the government: the entrenchment of impunity.

Gulbuddin Hekmatyar

The 2001 Bonn Agreement was not the first time accommodation with alleged war criminals was used in an effort to procure peace in Afghanistan. Repeated efforts in the 1990s to accommodate Gulbuddin Hekmatyar show how, on an individual level, the decision to forego justice in favor of inclusion can be costly.

Hekmatyar is one of Afghanistan’s most notorious and destructive warlords. He is the head of the Hezb-e Islami, a predominantly Pashtun faction that was one of the primary recipients of military assistance from the United States and Pakistan throughout the 1980s and early 1990s. Hezb-e Islami began as a resistance movement based in Pakistan fighting the Soviet occupation of Afghanistan. In the 1980s Hezb-e Islami was associated with abuses including indiscriminate attacks on civilians and summary executions of prisoners from a rival mujahedin group.[170] The United States and others chose to disregard evidence of abuses by Hekmatyar, despite the fact that his group was backed by millions of dollars of US military aid.

In 1992, the year following the collapse of the Soviet-backed government in Afghanistan, Kabul was the scene of almost constant armed conflict among belligerent Afghan military forces. Various factions, including Hekmatyar’s, battled over the city and committed atrocities against the civilian population. Human Rights Watch gathered accounts showing that Hezb-e Islami forces used artillery and rockets in apparently intentional attacks on populated civilian areas, failing to properly aim (with respect to artillery guns), recklessly using weapons that could not be aimed in a dense civilian setting (with respect to rockets), and unlawfully treating the city as one unified military target.[171] In the summer of 1992 alone, shelling and rocket attacks by Hekmatyar’s forces killed at least 2,000 people, mainly civilians.[172] In addition, Hezb-e Islami troops were involved in murder, rape, and looting in Kabul during 1992-93.[173]

As the head of Hezb-e Islami, Hekmatyar had command responsibility for the forces under his control that were implicated in crimes. He was unambiguously the sole military and political leader of Hezb-e Islami forces and was in command during its attack on Kabul.[174] Nonetheless, Hekmatyar was named prime minister as part of the March 1993 Islamabad Accord. He served as prime minister from March 1993 until early 1994, when he again attempted to overthrow the government. His forces launched indiscriminate rocket attacks on Kabul intermittently until February 1995.[175] After his rocket attacks had almost completely destroyed Kabul, the Afghanistan government tried to settle peacefully with Hekmatyar again and for a third time offered him a position as prime minister for the purpose of joining forces against the Taliban. He accepted and served as prime minister from June 26 to September 27, 1996, when the Taliban took over Kabul and forced him to flee.

Hekmatyar and the Taliban were initially bitter rivals. However, on December 25, 2002, Hekmatyar and the Taliban publicly announced that they were coordinating their activities against the Afghan government and its international supporters. Media reports from 2006 indicate that Hekmatyar’s son, Jamaluddin, has represented Hezb-e Islami at meetings with the Taliban.[176]

Since then, Hekmatyar’s group has been implicated in many other attacks. For example, Human Rights Watch documented 204 attacks against schools between January 1, 2005, and June 21, 2006, and named Hekmatyar as one of those responsible.[177] During the attacks teachers were beheaded, schools were blown up, and students were warned against attending school. The attacks had a serious impact on education, particularly for girls.[178] In addition, since early 2006 the Taliban and Hezb-e Islami have carried out an increasing number of armed attacks that have either targeted civilians or disregarded the impact on civilian life. Human Rights Watch counted at least 699 civilian casualties from insurgent attacks in 2006, including 189 bomb attacks.[179] Insurgent attacks killed at least 950 civilians in 2007 and intensified in 2008, killing 1,160 civilians.[180]

On February 19, 2003, the US government designated Hekmatyar as a “Specially Designated Global Terrorist” because of his participation in and support for Taliban and al-Qaeda terrorist activity.[181] If Hekmatyar had been called to account for crimes committed in the early 1990s, instead of handed government appointments, then some of this suffering may have been averted. Instead, he may soon be back at the negotiation table.[182]

B. Democratic Republic of Congo

A pervasive culture of impunity has been one of the greatest obstacles to sustainable peace in the Democratic Republic of Congo. In an effort to buy compliance with the transition process, the government gave posts of national or local responsibility, including in the army and police, to dozens of people suspected of committing international human rights violations.[183] A Congolese lawyer, dismayed by such promotions, remarked, “In Congo we reward those who kill, we don’t punish them.”[184]

One result of this policy is to create incentives for armed groups to engage in violence in the hope of being rewarded with government or army positions in exchange for laying down their arms. In addition, the decision not to hold perpetrators to account for their crimes has in some cases left them free to continue to wreak havoc in the region. The consistent failure to hold perpetrators to account has created an environment in which former rebels who have been incorporated into the armed forces continue to murder, torture, and rape civilians.[185] A number of other key factors have contributed to the brutal violence in eastern Congo, including competition for control over natural resources, land rights, and ethnic cohabitations, but incorporating warlords into the armed forces in an effort to obtain peace has only worsened the situation.

Congo has been wracked by two wars over the past dozen years. The first, from 1996 to 1997, ousted long-time ruler Mobutu Sese Seko and brought to power Laurent Desire Kabila, the leader of a rebel alliance supported by the Rwandan and Ugandan armies. A year later, Laurent Kabila turned on his former backers Rwanda and Uganda who in turn launched the second Congo war, which lasted from 1998 to 2003. Sometimes referred to as “Africa’s first World War,” the second war drew in six other African countries, spawned a host of rebel groups and local militias, and ultimately resulted in the deaths of an estimated 5.4 million people.[186] In 2002, international pressure led to peace discussions between the national government and the major rebel groups in Sun City, South Africa, which paved the way for the establishment of a transitional government in June 2003.

1. Incorporating abusers in the transitional government

As agreed during the 2002 Sun City peace talks, the transitional government passed an amnesty law that granted amnesty for engaging in acts of war, but specifically excluded amnesty for war crimes, crimes against humanity, and genocide.[187] Despite setting a marker that such crimes were punishable, individuals with a known record of human rights abuses were integrated into the government and the army, with officials making no serious effort to investigate or prosecute them.

One such individual was Gabriel Amisi, promoted to the rank of general. Amisi, also known as “Tango Fort,” had been a senior commander in the Rwandan-backed Congolese Rally for Democracy-Goma (Rassemblement Congolais pour la Democratie-Goma, RCD-Goma), one of the main rebel groups fighting in the DRC from 1998 to 2003. According to research by Human Rights Watch, in May 2002 Amisi and another RCD-Goma commander, Laurent Nkunda (see below), were responsible for the brutal suppression of a mutiny in Kisangani where at least 80 people were summarily executed.[188] This included over two dozen people who were beaten, bound, and gagged before being executed and their weighted bodies thrown off a bridge into the water below.[189]

The UN high commissioner for human rights and the under-secretary-general for peacekeeping operations briefed the Security Council on the Kisangani killings following their own investigations. The high commissioner called on the Congolese authorities to arrest those who were involved in the massacre and warned of further bloodshed if those responsible for the May massacre were not brought to justice.[190] In response, the Security Council issued a presidential statement demanding that RCD-Goma “take the necessary measures to bring the perpetrators and those among them who ordered or were involved in the massacres to justice.”[191] Despite the international condemnation of the crimes, neither Amisi, Nkunda, nor other officers believed to be responsible were investigated or charged. Less than a year later, Amisi and Nkunda were promoted to generals in the new Congolese army. At this writing, Amisi is the chief of staff of the Congolese army. Other individuals with a known track record of human rights abuses were also granted important posts. Few diplomats condemned the promotions.[192]

The promotions, the lack of justice, and the failure to launch a credible truth and reconciliation commission (also established by the Sun City accords), sent a clear signal early on that the new government was unwilling or unable to end the culture of impunity.

The signal was a dangerous one as peace remained elusive. Violence continued in the Ituri district of Oriental province, in North and South Kivu provinces, and in parts of Katanga province where splinter factions emerged or new armed groups were created. Continued violence, with devastating results for civilians, was perceived by armed groups as the best way to strengthen their negotiating position or secure a seat at the table. As one commander told Human Rights Watch in 2003, “Our government only listens to guns and violence and we need to make them hear us.”[193]

2. New armed groups want official appointments

The negative consequences of rewarding warlords responsible for serious human rights abuses was most evident in Ituri, often described as the bloodiest corner of Congo, where tens of thousands were brutally slaughtered on an ethnic basis between 1999 and 2009.[194] The transitional government lacked effective control of the area and six armed groups (backed at different times by Uganda, Rwanda, and the Congolese government) vied for control of the region.[195]

In August 2003 President Joseph Kabila (the son and successor of Laurent Kabila, who was assassinated in 2001) called the leaders of the armed groups to Kinshasa to discuss establishing order in Ituri. All parties signed a memorandum of understanding to end hostilities, and then the government instructed them not to return to Ituri, placing them under a form of loosely policed “house arrest” at a Kinshasa hotel, where they were placated with promises of possible positions in the government or the army.[196]

On December 11, 2004, despite mounting evidence of their abuses, Kabila signed a decree granting five leaders of the Ituri armed groups positions as generals in the newly integrated Congolese army and a further 32 militiamen positions as lieutenant-colonels, colonels, and majors. The generals were welcomed into army ranks in January 2005.

One of those appointed to the rank of general was Jerome Kakwavu, the commander of the People’s Armed Forces of the Congo (Forces Armées du Peuple Congolais, FAPC) responsible for summary executions (including child soldiers who attempted to flee the ranks), the torture of dozens of civilians, and rape of women and girls in Ituri.[197] In late 2004 and early 2005 evidence of Kakwavu’s crimes was uncovered by the United Nations Mission in Congo (Mission de l'Organisation des Nations Unies en République démocratique du Congo, MONUC) when it took physical control of a former FAPC military base at Ndrele. A judicial investigation, with the assistance of MONUC, alleged that Kakwavu had committed war crimes, but no arrest warrant was issued. At this writing Kakwavu remains a general in the Congolese Army.[198]

In the same round of appointments, Floribert Kisembo Bahemuka was appointed a general. Kisembo had been the military chief of staff of the Union of Congolese Patriots (Union des Patriotes Congolais, UPC) and was one of the commanders responsible in late 2002 for a campaign of executions and forced disappearances of civilians who opposed UPC policies in Bunia. UPC troops under Kisembo’s command also participated in ethnic slaughter of civilians at more than a dozen places across Ituri.[199] Despite warrants from the ICC for the arrest of two of his colleagues in the UPC, one of whom was a subordinate, Kisembo has to date not been charged and instead is the deputy commander of the military region of Maniema province, in eastern Congo.

The Congolese authorities contended that integrating these and other commanders with abusive records was a way of removing them from Ituri, thus making it easier to end the fighting there.[200] But by doing so the government reinforced the message that brutalities would not only go unpunished, but might be rewarded with a government post. The message was clear: violence brings rewards.[201]

Within six months of the appointments, new armed groups were formed in Ituri all claiming, as others had done before, that they represented marginalized communities and demanding high ranks in the army. The failure to adequately disarm combatants and to provide peace dividends for local communities contributed to the emergence of the new armed groups, but so did the perception that violence was an effective route to power. These groups continued the terror tactics that previous armed groups had used so successfully: killing civilians, raping women and girls, and arbitrarily arresting and torturing those who opposed them. In May 2006, one of these groups, the Front for National Integration (Front Nationalist et Integrationist, FNI), killed a UN peacekeeper and took seven others hostage. As part of negotiations to free the peacekeepers, FNI’s leader, Peter Karim, demanded a position as a general in the Congolese army. According to a UN official involved in the negotiations, Karim was given verbal assurances that a high ranking position would be offered to him.[202] It set the direction for a further round of promoting warlords to positions of power.

In August 2006, Congolese government officials, supported by the UN, once again held peace discussions with the Ituri armed groups. Two months later, in November 2006, the groups signed a new peace agreement.[203] Their leaders—including Peter Karim—were all granted the rank of colonel in the Congolese army. Dozens of others were appointed as lieutenant-colonels and majors. One of the newly appointed officers later remarked to Human Rights Watch, “Maybe if we had killed more people, I would have become a general.”[204]

A similar pattern emerged in Katanga province. Between 2003 and 2006 a local defense force known as the Mai Mai, which had been allied to the Congolese government during the second Congo war, turned against its former backer when salaries and logistical support were no longer forthcoming and few of their commanders received important positions in the transitional government. Commanded by Gedeon Kyungu Mutanga, the Mai Mai killed, raped, and abused civilians. In some cases they publicly tortured victims before killing and cannibalizing them in ceremonies intended to terrorize the local population. When the government launched military operations against the group, the violations by both sides intensified. The suffering and brutalities were so widespread that local residents called the region “the triangle of death.”[205]

As with rebel groups in Ituri, Mai Mai used violence as a means to impose their control over the area and to gain leverage in negotiations. Mai Mai combatants deliberately killed more than 40 local chiefs and state representatives in various localities and threatened others. When the government organized peace talks with some of the Mai Mai leadership, they presented a list of demands including military and other positions for their commanders. Some Mai Mai leaders surrendered, were named colonels and majors in the national army, and have never faced justice.[206]

In May 2006 Gedeon surrendered to UN peacekeeping forces believing that he was being taken to a meeting with President Kabila. Following intense pressure from the UN and civil society organizations, the government broke from previous practice and detained Gedeon rather than promoting him. A year later he and 20 other co-accused were brought to trial in what became the largest trial involving crimes against humanity in Congo’s history. He was found guilty on March 5, 2009.[207]

At times, Congolese judicial officials with the help of UN human rights specialists did try to stem the wave of impunity, as evidenced by the trial against Gedeon, but too often their efforts were undermined by political interference, corruption, or prison breaks where some militia leaders who had been arrested managed to escape.[208] The ongoing impunity left alleged war criminals free to continue to commit crimes. Two stark examples of the vicious circle are Laurent Nkunda and Bosco Ntaganda.

3. Repeat offenders, contrasting fortunes – Laurent Nkunda and Bosco Ntaganda

In the years following the 2003 peace agreement that established Congo’s transitional government, new armed groups also emerged in North and South Kivu provinces claiming their grievances had not been addressed, with some seeking positions in government or the army or a redistribution of power to the local level. By January 2008 there were 22 such armed groups.

One of the most important leaders in the new batch of armed groups that emerged in North Kivu was Laurent Nkunda. In June 2003 the transitional government named Nkunda as a general in the new Congolese army despite his track record of abuses in Kisangani as described above.[209] Unlike his former colleague Gabriel Amisi, Nkunda, a Congolese Tutsi, refused to take up his post citing concerns for his own safety.[210] The next year, following a dispute between military commanders in South Kivu, he joined another former RCD-Goma commander, Jules Mutebutsi, and marched on Bukavu with some 1,000 troops. Nkunda claimed he “wanted to protect his people”[211] (while there had been targeted killings of some 15 individuals, mostly Tutsi,[212] his claim that the military operation he mounted was motivated solely by this concern seems unlikely). Human Rights Watch researchers documented that forces under Nkunda’s command killed civilians and carried out widespread sexual violence during their operations.[213]

UN peacekeepers were unable to stop Nkunda’s offensive on Bukavu and the resulting crisis nearly derailed an already weak transitional government. In October 2004 the Security Council directed UN forces to cooperate with Congolese authorities “to ensure that those responsible for serious violations of human rights and international humanitarian law are brought to justice.”[214] A year later, in September 2005, the Congolese authorities issued a warrant for the arrest of Nkunda.[215] Again, on December 21, 2005, the Security Council reiterated its call “stressing the urgent need for those responsible for [violations of human rights and international humanitarian law] to be brought to justice.”[216] But no action was taken, and diplomats did not follow up the Council’s requests with any concerted effort.

Throughout 2005 and into 2006, the international community’s attention was focused on presidential and parliamentary elections in Congo, the first democratic elections in over 40 years. Caught up in the political and logistical challenges of the election process, many Congolese leaders, as well as representatives of the donor community and MONUC, accepted that little progress would be made on such major issues as army reform or establishing a functioning judicial system. Diplomatic representatives stated that it would be unproductive to push too hard on such issues, including seeking to arrest those responsible for serious crimes, preferring not to “rock the boat.”[217] On Nkunda, MONUC decided to pursue a strategy of containment: take no action to arrest or confront him, but use deterrent action to contain his activities and zone of influence to minimize possible disruptions to the elections.[218] The strategy was ill-advised and short-sighted.

Nkunda used the time to found the National Congress for the Defense of the People (Congrès National pour la Défense du Peuple, CNDP) with a program of preventing the exclusion of Tutsi from national political life and assuring their security.[219] Like rebels in other parts of Congo, Nkunda believed that launching an armed group would ensure his voice was heard. In August 2006 he told Human Rights Watch researchers, “We need to make sure our cries are heard. We must be listened to.”[220]

Throughout 2006-07 Nkunda’s CNDP enlarged the area that it controlled, effectively creating a state within a state. Human rights abuses by the CNDP and other armed groups increased, especially when the Congolese government launched failed military operations to attempt to defeat Nkunda. Horrific attacks on civilians—including murders, widespread rape, and the forced recruitment and use of child soldiers—by all sides to the conflict followed. Hundreds of thousands of people were forced to flee their homes.[221]

The Congolese government, unable to defeat Nkunda militarily, decided to enter into peace discussions with him. On January 23, 2008, after weeks of talks, the government signed a peace agreement in Goma, North Kivu, with 22 armed groups of which the CNDP was the most influential. While the agreement committed all parties to an immediate ceasefire, disengagement of forces from frontline positions, and respect for international human rights law, it did not hold. Conflict resumed and Nkunda stated that Joseph Kabila, elected as president only two years earlier, should resign.[222] Faced with the possibility of losing eastern Congo and with no support coming from other African allies or the European Union, Kabila struck a secret deal with his former enemy, the Rwandan government. Congo would allow Rwandan troops to return briefly to eastern Congo to pursue their enemy—the Rwandan Hutu militia the Democratic Forces for the Liberation of Rwanda (Forces Démocratiques de Libération du Rwanda, FDLR)—in exchange for arresting Nkunda. On January 22, 2009, Nkunda was called to a meeting in Gisenyi, Rwanda, and detained by Rwandan officials.[223]

Instrumental in Nkunda’s downfall was Bosco Ntaganda, formerly a senior military commander from the UPC armed group who had fallen out with the UPC and had joined Nkunda sometime in 2006. Ntaganda, also a Congolese Tutsi, became Nkunda’s new military chief of staff. He had already been implicated in brutal human rights abuses, but was one of the five Ituri leaders who in December 2004 had been granted positions as generals in the newly integrated Congolese army (see above). (He had not taken up this post: fearing for his security in the capital, Kinshasa, Ntaganda had refused to attend the swearing-in ceremony.) In January 2009, in an effort to divide Nkunda’s CNDP, Ntaganda with support from Rwanda led a putsch to oust Nkunda from leadership and to install himself as the group’s military commander. In exchange, the Congolese government rewarded him for a second time with the post of general in the Congolese army.

Ntaganda’s track record is one of widespread human rights abuses. In November 2002, Ntaganda, then in charge of military operations for the UPC in Ituri, led troops in attacks on the gold mining town of Mongbwalu, where at least 800 civilians were brutally slaughtered on an ethnic basis. Such attacks were repeated in dozens of other locations.[224] According to UN peacekeepers, troops commanded by Ntaganda were responsible for killing a Kenyan UN peacekeeper in January 2004 and for kidnapping a Moroccan peacekeeper later that year.[225] He was placed on the UN sanctions list in November 2005 for breaching a UN arms embargo.[226] While acting as military chief of staff in Nkunda’s CNDP, troops under Ntaganda’s command were responsible for the November 4-5, 2008 massacre of 150 civilians in Kiwanja in North Kivu.[227]

Nkunda’s removal appeared to open up new possibilities to finding peace in eastern Congo, but political expediency rather than the interests of justice have determined both his and Ntaganda’s recent, contrasting fates. Laurent Nkunda has been implicated in numerous serious crimes since May 2002, but despite repeated calls by the UN and others for those responsible for the crimes in Kisangani to be brought to justice, Nkunda was not investigated or prosecuted. The government sought to accommodate him, but the accommodation did not work: rather than preventing further crimes, the opposite occurred. Nkunda’s forces went on to commit additional crimes and to contribute to a major political, military, and humanitarian crisis. The political and diplomatic costs of arresting Nkunda in 2002 when he was first implicated in perpetrating war crimes would have been substantially less.

As for Bosco Ntaganda, in August 2006, the International Criminal Court issued an arrest warrant against him for the war crime of enlisting and conscripting children under the age of 15 and using them in hostilities between 2002 and 2003 in Ituri.[228] The Congolese government, which requested the ICC to investigate crimes in Congo, and which to date has been cooperative with the court, in this case failed dramatically in its legal obligation to arrest Ntaganda. In a televised press conference on January 31, 2009, President Kabila invoked the peace versus justice dilemma, stating that he faced a difficult choice between justice and peace, stability, and security in eastern Congo. He said his choice was to prioritize peace. Congolese authorities attempted to legitimize Ntaganda as a “partner for peace,” reinforcing the perception that those who commit heinous crimes against civilians in Congo will be rewarded rather that punished. Dozens of local human rights nongovernmental organizations condemned the decision. Ntaganda is now reportedly serving as a high-ranking advisor to UN peacekeeping forces on their operations in Congo, despite his status as a wanted man at the ICC.[229]

C. Bosnia and Herzegovina

In a new administration, alleged war criminals in the ranks of even lower-level officials can impede stability and obstruct the implementation of peace agreements. This was demonstrated in Bosnian towns immediately following the Balkan wars in the 1990s. For example, the Bosnian administrative district of Prijedor, located west of the city of Banja Luka in what is now Republika Srpska, was before 1992 a multi-ethnic area with a non-Serb population of well over 50,000. After Bosnian Serb forces took control of the region in April 1992, the communities and homes of non-Serbs were destroyed, families were separated, and thousands of people were held in concentration camps, where many were tortured and executed. Tens of thousands were forcibly deported under inhumane conditions. After the war, only about 600 Bosniaks (Bosnian Muslims) and 2,700 Bosnian Croats remained in Prijedor. The Catholic church and all mosques in Prijedor were destroyed in 1992. [230]

Notably the same Serb individuals who took control of Prijedor through systematic policies of “ethnic cleansing”—including deliberate killings, concentration camps, mass rape, and the takeover of businesses, government offices, and all communal property—retained total control over key security, economic, infrastructure, and humanitarian sectors of the community after the war.[231] The architects of the “ethnic cleansing,” many of whom were under investigation by the International Criminal Tribunal for the former Yugoslavia, were interacting daily with representatives of international organizations and receiving a wholly undeserved legitimacy.

Despite the requirements of the 1995 Dayton agreement, these same local authorities refused to protect non-Serbs or to investigate crimes against them. Civilian and police authorities worked in tandem to prevent the return of non-Serb refugees and displaced persons by organizing or inciting violence against those who attempted to return and by orchestrating (with the assistance of the Bosnian Serb Army, according to NATO) the destruction of houses. For example, local authorities used radio broadcasts to encourage the residents of Prijedor to believe that returning refugees posed a threat and that they must meet the returnees with violence in order to “defend” themselves. The fear this generated brought crossings into Bosnian Serb territory to a standstill. Restrictions on freedom of movement, destruction of other property, and ethnically-based eviction through the application of discriminatory laws were also carried out. The Bosnian Serb authorities continued to implement their goal of an ethnically pure entity, the same goal that led to massive “ethnic cleansing” campaigns during the war. Despite serious non-compliance with the Dayton agreement and failure to cooperate with organizations charged with implementing Dayton, international actors failed to confront the problem and continued to provide large sums of reconstruction money to people who had engaged in or advocated for “ethnic cleansing” during the war and then actively obstructed the Dayton agreement. [232]

In the Doboj-Teslic area as well, Human Rights Watch found evidence that the national and local political leadership of the Republika Srpska as well as the state organs and agencies under its control—including the Ministry of Internal Affairs and the local police force—were responsible for directing, aiding, and abetting ongoing widespread human rights abuses against non-Serb minorities, and for blocking implementation of Dayton. In particular, Human Rights Watch documented that Republika Srpska forces and agencies, along with underground Bosnian Serb paramilitary organizations, committed acts of deliberate killings, “ethnic cleansing,” expulsions, obstruction of freedom of movement, obstruction of the right to remain, continued practice of forced labor, beating and torture in detention, threats and intimidation, looting and destruction of property. These acts revealed the continuing control exerted by wartime organizers of “ethnic cleansing” despite the fact that the whereabouts and identity of the persons involved were well known to the international representatives in the region. [233]

The international community’s failure following Dayton to detain indicted war crime suspects or to control ongoing abuses by unindicted alleged war criminals left in place many of the very people most responsible for genocide and “ethnic cleansing” in the former Yugoslavia. Key governments remained silent about many of the abuses and the identity of the abusers in the post-Dayton period. In addition, these war crimes suspects acted to block implementation of the Dayton agreement and thereby slowed the establishment of a functioning state that respects human rights. Beginning in 1998, and particularly between 1999 and 2004, the Office of the High Representative in Bosnia did remove from office a number of obstructionist politicians. [234] A number of war crimes suspects were eventually arrested and transferred to The Hague. Nonetheless, ongoing concerns about continuing ethnic divisions in Bosnia can be traced back, in part, to the early failure to purge the Republika Srpska of leaders implicated in war crimes. [235]