On September 2, 2015, the trial of Bosco Ntaganda will start in The Hague at the International Criminal Court (ICC), nine years after the court issued its first arrest warrant against him. Ntaganda, a rebel leader who fought with various armed groups, and was later a general in the Congolese army, is the fourth person to be tried before the ICC for grave international crimes allegedly committed in the Democratic Republic of Congo (DRC). The opening statements are expected to last two days. After that, the presentation of prosecution evidence is to start on September 15.
Bosco Ntaganda is a rebel leader who has been active in various armed groups in eastern Congo since the late 1990s. For several years, he also served as a general in the Congolese army. He had been sought by the International Criminal Court for war crimes since 2006.
Ntaganda was born in 1973 in Kinigi, Rwanda. He fled to Congo as a young teenager amid attacks on ethnic Tutsi in Rwanda. He began his military career in 1990 in the Rwandan Patriotic Front (Front patriotique rwandais, RPF), a Rwandan rebel group then based in Uganda; the RPF went on to stop the Rwandan genocide in 1994 and formed the government that is still in power in Rwanda today. Ntaganda then joined the Rwandan Patriotic Army (the army formed by the RPF) and participated in the Rwandan military invasion of Congo in 1996. In 1998, during the “second Congo war,” he joined a Congolese rebel group backed by Rwanda, the Rally for Congolese Democracy (Rassemblement congolais pour la démocratie, RCD). He subsequently moved among various Congolese militias before joining the Union of Congolese Patriots (Union des patriotes congolais, UPC) in 2002. The UPC was an armed group that purported to further the interests of the Hema ethnic group in the Ituri district of northeastern Congo.
From 2002 to 2005, Ntaganda served as chief of military operations under the UPC’s leader, Thomas Lubanga. During that period, forces under Ntaganda’s command were implicated in many serious human rights abuses, including ethnic massacres, torture, rape and the widespread recruitment of children, some as young as seven. Lubanga was the first person to go to trial before the ICC. He was convicted in 2012 for recruiting and using child soldiers in Ituri and sentenced to 14 years in prison. His conviction was confirmed in appeal in December 2014. Ntaganda was the co-accused in that case but managed to elude justice until he surrendered in 2013.
During that time, he continued to lead troops responsible for grave abuses and received significant support from backers in the Rwandan military.
In the first ICC arrest warrant issued in August 2006, Ntaganda, like Lubanga, was charged with the war crimes of enlisting and conscripting children under 15 as soldiers and using them to participate actively in hostilities in the context of the armed conflict in Ituri in 2002 and 2003.
The ICC issued a second arrest warrant against Ntaganda in July 2012, which included four additional counts of war crimes and three additional counts of crimes against humanity.
The Office of the Prosecutor later added more charges, bringing the total to 13 counts of war crimes and 5 counts of crimes against humanity. The accusations against Ntaganda include murder and attempted murder, attacking civilians, rape, sexual slavery of civilians, pillaging, displacement of civilians, attacking protected objects, and the enlistment and conscription of children under 15 for rebel forces and using them to participate in hostilities, all allegedly committed in Ituri in 2002-2003.
The additional charges against Ntaganda partly address concerns expressed by Congolese activists and Human Rights Watch about the narrow scope of the charges initially brought against Lubanga and Ntaganda. The expanded set of charges is more representative of the range of grave crimes allegedly committed by the UPC in Ituri. The additional charges are important in bringing justice to the victims of these crimes, who belong predominantly to the Lendu ethnic group, and enabling them to participate in proceedings at the ICC. This had not been possible in the Lubanga case as the charges were limited to the use of child soldiers by the UPC, most of whom came from the same ethnic group as the perpetrators, the Hema.
The hearing to confirm the charges against Ntaganda took place in February 2014. In June of the same year, the pre-trial chamber confirmed all charges against Ntaganda.
The opening of the ICC proceedings against Ntaganda at the ICC is highly significant for the thousands of people across eastern Congo who have suffered, witnessed, or documented serious abuses allegedly committed by him and troops under his command.
It also sends a strong warning to other abusive commanders still active in Congo. Ntaganda’s military career involving moving from one armed group to the other, with occasional integration into the Congolese army, resembles that of other rebel leaders in Congo, whom the Congolese government has often rewarded with positions, wealth, and power while civilians suffer ongoing abuses. The long delay in Ntaganda’s apprehension shows that grave abuses often continue while impunity persists. 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.
The Ntaganda case may also provide insight into the reforms under way within the Office of the Prosecutor at the ICC to improve the quality of its investigations and prosecutions. Problems in the quality and collection of evidence emerged in several cases at the ICC, including those of Lubanga and Mathieu Ngudjolo. Since taking office in June 2012 as prosecutor, Fatou Bensouda, has shown she is committed to learning lessons from past practice and improving the work of the office.
Ituri district has been one of the worst-affected areas in eastern Congo’s prolonged conflict. Localized fighting between Hema and Lendu ethnic groups that began in 1999 over land disputes expanded after Ugandan military forces backed Congolese armed groups. As the conflict spiralled and armed groups multiplied, more than 60,000 civilians died. Competition for the region’s lucrative gold mines and trading routes was a major contributing factor to the fighting. Foreign armies and local militia groups fought each other and committed numerous abuses, often targeting civilians. Armed groups, such as Ntaganda’s UPC, carried out widespread ethnic killings, torture and rape.
Human Rights Watch documented in depth serious human rights abuses in Ituri in the early 2000s, including in three detailed reports in 2001, 2003 and 2005. While the situation has become significantly more stable in recent years, armed groups are still active in some parts of Ituri.
No. All charges in the Ntaganda case at the ICC relate to the conflict in Ituri, when he was a member of the UPC. The case does not cover crimes later committed by troops under his command in North Kivu province.
In 2006, after leaving the UPC following internal disputes, Ntaganda moved to North Kivu in eastern Congo and remained there until he surrendered to the ICC in 2013. During this period, as he was already wanted by the ICC, Human Rights Watch documented ethnic massacres, killings, rape, torture and recruitment of child soldiers by armed groups or Congolese army units under Ntaganda’s command.
It is regrettable that the prosecution’s case does not more fully address the range of crimes allegedly committed by troops under Ntaganda’s command. As a result of this limited focus, many atrocities in North Kivu and South Kivu provinces remain largely unaddressed, both at the ICC and before national courts in Congo. The ICC prosecutor should investigate those most responsible for these grave crimes, including high-level military and political officials who backed militias there, including Ntaganda’s. Rebel and Congolese army commanders implicated in grave crimes who are not being sought by the ICC should be promptly investigated at the national level by Congolese judicial authorities.
The Price of Impunity: Abuses Carried Out under Ntaganda’s Command in North Kivu Province
In 2006, Ntaganda became military chief of staff of the National Congress for the Defense of the People (Congrès national pour la défense du peuple, CNDP), a Tutsi-led rebel group in North Kivu province, backed by Rwanda. Among other grave abuses, CNDP troops under Ntaganda’s command massacred an estimated 150 people in the town of Kiwanja. Ntaganda was present at the time according to video footage filmed by foreign journalists.
In early 2009, the Rwandan and Congolese governments reached an agreement: in exchange for Rwanda’s assistance in ending the CNDP rebellion and putting its leader, Laurent Nkunda, under house arrest in Rwanda, the Congolese government integrated CNDP fighters into the Congolese army and made Ntaganda a general and deputy commander of military operations in eastern Congo. This was despite the ICC arrest warrant against him and the Congolese government’s legal obligation to arrest him.
Ntaganda later became acting commander of military operations and used his position to create a parallel command structure in the Congolese army, with former CNDP soldiers who remained loyal to him. Army troops under Ntaganda’s command carried out numerous attacks on civilians, including killings, rapes and burning homes. In 2009 alone, Human Rights Watch documented the killings of more than 730 civilians by Congolese army soldiers and their allies during military operations against the Democratic Forces for the Liberation of Rwanda (Forces Démocratiques de Libération du Rwanda, FDLR), a largely Rwandan Hutu armed group, some of whose members participated in the 1994 genocide in Rwanda. Most of these killings were carried out by former CNDP troops under Ntaganda’s command.
In one incident between April 27 and 30, 2009, Congolese soldiers attacked camps in the Shalio Hill area and killed at least 129 Rwandan Hutu refugees, mostly women and children. During the same incident, soldiers abducted at least 40 refugee women and girls, held them as sexual slaves, gang-raped and mutilated them.
From 2009 to 2011, Ntaganda led a brutal campaign against perceived military and civilian opponents, allegedly ordering assassinations, arbitrary arrests, and other unlawful acts. He recruited child soldiers and thwarted efforts to demobilize them. He blocked judicial investigations into abuses committed by those loyal to him and used his influence in the military to confiscate land and increase his wealth.
In April 2012, after the Congolese government signaled it would seek to arrest Ntaganda and break up the parallel command structure in the army, Ntaganda and those loyal to him defected and formed a new rebel group, the M23, named after the March 23, 2009 peace accord between the government and the CNDP. M23 fighters in turn committed numerous grave abuses, including summary executions, rape, and recruitment of child soldiers.
Ntaganda is the first accused to surrender voluntarily to the ICC. On March 18, 2013, he turned himself in to the United States embassy in Kigali, Rwanda, and asked to be transferred to The Hague. His motives remain unclear. Prior to his surrender, there had been clashes between two factions of his most recent armed group, the M23, in eastern Congo. The faction opposed to Ntaganda had gained the upper hand. This may have prompted Ntaganda to flee Congo. Ntaganda may also have lost the support of his Rwandan backers, leading him to fear for his life.
Cooperation by the United States – although not an ICC member country – was critical to enable the prompt and efficient transfer of Ntaganda to the ICC, on March 22, 2013. Cooperation by Rwanda and Congo, which did not oppose the transfer, also helped facilitate it.
On March 19, 2015, the ICC trial chamber recommended holding the opening statements in Ntaganda’s trial in situ in Bunia, the main city in the Ituri district of northeastern Congo, where the alleged crimes occurred. The Rome Statute, the founding treaty of the ICC, expressly provides for the possibility of holding proceedings in locations away from its seat at The Hague. The trial judges in this case considered that holding the opening of the trial in Bunia would be in the interest of justice in that it would bring the work of the ICC closer to affected communities.
On June 15, the ICC presidency, which makes the final decision on holding in situ proceedings, announced that the opening of the trial would take place in The Hague.
In deciding not to go ahead with an in situ opening, the ICC presidency assessed submissions by parties in the case, the court’s registry and other actors concerned, such as the Congolese government and the UN peacekeeping mission in Congo, MONUSCO. The presidency found that a number of negative factors outweighed the benefits of an in situ opening in this case. These included the potential security risks, the trauma that could be caused to victims and witnesses by the return of the accused (who would have been present in Ituri for the opening of the trial, albeit remaining in ICC custody), and costs, which amounted to more than €600,000.
Human Rights Watch believes that the proximity of judicial proceedings to where the crimes were committed can significantly contribute to local communities seeing justice done, enhance the participation of victims, and increase attention to justice in the media and public. Human Rights Watch encourages the court to consider other moments in Ntaganda’s trial that may prove more suitable for an in situ hearing or, at a minimum, to organize a judicial visit to the site of crimes.
Trials of international crimes meeting international fair trial standards invariably take time, with the prosecution and the defense entitled to present and defend their positions vigorously. The Office of the Prosecutor has announced that it intends to call 88 witnesses in the Ntaganda case (almost three times as many as in the Lubanga case) and expects to need over 800 hours in court to present its case.
At the same time, the ICC has come under justified pressure from member countries and court observers to improve its efficiency. The Lubanga case, taking pre-trial, trial, and appeal proceedings together, lasted for nearly eight years before the court. Reparations proceedings for victims of Lubanga’s crimes are still going on. Of course, the Lubanga case, as the first before the ICC, presented a number of challenging issues that had to be worked through for the first time. ICC judges, however, are working to adopt measures to improve the efficiency of the proceedings, including harmonizing working methods between chambers and implementing lessons learned from previous trials.
Ntaganda is presumed innocent until proven guilty and is entitled to a fair and expeditious trial, conducted impartially.
The progressive disclosure of documents between the parties, which is required by the Rome Statute, has been ongoing since preparations for the confirmation of charges hearing.
Ntaganda’s lawyers asked twice for a postponement of the trial due to the volume of material disclosed by the Office of the Prosecutor in the last few months, delays in the release of the identity of certain prosecution witnesses, and the need for the defense to conduct additional investigations to address this new information. The trial chamber postponed the opening statements twice and has organized the presentation of prosecution’s evidence in periods of time separated by breaks to allow enough time for the defense team to prepare.
In accordance with the Rome Statute, Ntaganda is entitled to have the proceedings held in a language he fully understands and speaks. At his initial appearance, Ntaganda said that he: “understand[s] French somewhat, but speak[s] Kinyarwanda.” Balancing issues of fairness and potential costs and delays incurred through extensive translations, the court has decided to allow interpretation into Kinyarwanda during the trial and to translate important and complex documents into that language, while other documents will only be translated into French, one of the official languages of the court.
Under the Rome Statute, a defendant has the right to legal counsel during criminal proceedings and is entitled to financial assistance from the court if they cannot afford a lawyer. Ntaganda’s lead counsel is Stéphane Bourgon, an experienced international criminal lawyer from Canada who has argued multiple cases before the International Criminal Tribunal for the former Yugoslavia. Bourgon was also counsel for Laurent Nkunda, the former leader of the CNDP rebel group, of which Ntaganda was a senior member for several years.
Ntaganda has declared to the court that he is indigent and cannot pay for his legal representation. The registrar of the ICC, the court’s chief administrator, has granted him provisional legal aid. However, this decision can be reversed at any time if the financial investigation conducted by the registrar shows that he can bear the costs of his legal defense.
Concerned countries should cooperate with the ICC in its efforts to identify a suspect’s assets and to seize them if the court asks them to. Establishing an accurate assessment of Ntaganda’s resources is also in the interest of victims who are seeking reparations. Ntaganda is believed to have amassed considerable wealth during his time as rebel leader and army general in eastern Congo, notably through seizing control of fertile land and cattle, and looting and trafficking minerals.
Under the Rome Statute, which put in place an innovative system of victim participation for the first time before an international criminal tribunal, victims of the alleged crimes can make their “views and concerns” known to the judges in Ntaganda’s trial. Victim participation is an important feature of the ICC that can contribute to bridging the gap between victims and a court located thousands of kilometers away from where the crimes were committed. As participants, victims have standing in their own right, although usually through a lawyer appointed to represent a group of victims, known as a common legal representative. Few victims, if any, will appear before the court in person. This is a different role to that of appearing as witnesses for the Office of the Prosecutor.
The trial chamber recognized 2159 victims as participants in Ntaganda’s trial. The victims are divided into two distinct groups: one consists of 297 former UPC child soldiers and their relatives, and the other of 1862 victims of UPC attacks and their relatives. The creation of two distinct groups follows victim applicants’ concerns that victims of the two main ethnic groups involved in the conflict in Ituri, the Hema, and the Lendu, might have different views of the case.
Each group of victims is represented by a common legal representative from the ICC’s Office of Public Counsel for Victims (OPCV), supported by an assistant counsel based in Congo, responsible for ensuring regular contact with the victims.The legal representatives for victims will be allowed to make opening statements and to participate in all hearings. They may also ask questions to witnesses and present evidence, after obtaining permission from the chamber.
The ICC is located far from the sites of Ntaganda’s alleged crimes. The court faces the challenge of making sure that its proceedings are meaningful for the Congolese people most affected by these crimes and that victims are informed of their rights.
Since 2004, the ICC’s registry has worked to ensure that information about ICC proceedings reaches affected communities in Congo, as well as journalists, human rights activists, lawyers, and judicial staff. The ICC regularly produces audio and video summaries of court proceedings. Such summaries of the opening statements and key elements of the Ntaganda trial, presented and discussed at events organized by ICC staff in various locations in Congo, will play an important role in facilitating awareness and understanding of the proceedings among affected communities and other interested stakeholders.
The court should prepare a Communications and Outreach Strategy to ensure that information about the trial of Ntaganda is widely transmitted, as it did for the Lubanga trial. Given that the trial will start in The Hague, the court should consider holding a live screening in Bunia, possibly followed by a discussion with ICC staff to answer any questions that might arise. Such public viewings should also be organized in Goma, the capital of North Kivu province, given Ntaganda’s high profile and the alleged crimes committed by Ntaganda and his troops there.
The court should also consider inviting several Congolese journalists to The Hague to enhance independent coverage of the opening statements by Congolese media.
In April 2012, Congo’s president, Joseph Kabila, indicated that he was prepared to arrest Ntaganda. That, together with the ICC conviction of Lubanga in March 2012, may have been a factor in prompting Ntaganda and soldiers loyal to him to mutiny. Some Congolese officials and commentators have said they believed that it was the insistence on justice that led to the creation of the M23 and a renewed round of fighting in eastern Congo in 2012.
This interpretation overlooks important facts. It is the lack of justice – not efforts to bring abusers to justice – that has encouraged cycles of violence in eastern Congo over the past two decades. Military commanders such as Ntaganda saw time and again that there was no price to pay for atrocities against civilians. On the contrary, those implicated in grave abuses were routinely rewarded through integration into the Congolese army, and in many cases, they continued similar attacks on civilians while serving as Congolese army officers. This, in turn, encouraged the emergence of numerous new armed groups, many of which have engaged in similar abuses.
Ntaganda was never an “instrument of peace,” as the Congolese government once claimed. Soldiers under Ntaganda’s control carried out abuses even after Ntaganda was made a general in the Congolese army. Ntaganda was repeatedly implicated in targeted killings, enforced disappearances and arbitrary detention of people who called for his arrest or denounced alleged abuses until he eventually fled Congo and surrendered.
The M23 was largely made up of soldiers who took part in a mutiny from the Congolese army, starting in late March 2012. Many were previously members of the CNDP rebel group, which integrated into the Congolese army in January 2009 under Ntaganda’s leadership.
In addition to Ntaganda, several former M23 senior commanders had been implicated in serious human rights abuses, including Sultani Makenga, Innocent Zimurinda, Baudouin Ngaruye, Innocent Kayna, and Eric Badege, among others. Human Rights Watch has documented ethnic massacres, the recruitment of children, mass rape, killings, abductions, and torture by troops under their command. At least six former M23 leaders, in addition to Ntaganda, are on UN and US sanctions lists that subject them to a travel ban and an assets freeze.
After the defeat of the M23 in 2013, M23 commanders and many of their troops fled Congo to neighboring Rwanda and Uganda. Congolese authorities issued arrest warrants for several senior M23 leaders on charges of war crimes and crimes against humanity, but none have been arrested.
Human Rights Watch has urged the Congolese authorities to take measures that could facilitate the transfer of the M23 leaders from Uganda and Rwanda, by addressing issues related to their security, right to a fair trial and the death penalty in Congo. If they do not extradite the M23 leaders to Congo, Uganda and Rwanda are under an international legal obligation under customary international humanitarian law and the Convention against Torture to investigate and appropriately prosecute them. Human Rights Watch is not aware of any investigations by Rwandan or Ugandan authorities into the alleged role of former M23 leaders present on their territory for crimes committed in Congo or other steps by these governments to bring these individuals to justice.
Without fair and credible trials, there is concern that such individuals could start a new rebellion and continue committing abuses.
The ICC prosecutor has initiated public cases against six suspects in relation to alleged crimes committed in Congo. In the first phase of its investigation, the ICC pursued four rebel group leaders accused of crimes in Ituri: Lubanga, Ntaganda, Ngudjolo, and Germain Katanga. As mentioned above, Lubanga was convicted in 2012 for recruiting and using child soldiers in Ituri and sentenced to 14 years in prison. Katanga was found guilty and sentenced to 12 years in prison. He declined to appeal. Ngudjolo was acquitted and returned to Congo in May 2015. Ntaganda is the last accused to go to trial on charges related to the Ituri conflict.
For crimes committed in the Kivu provinces of eastern Congo, the ICC issued arrest warrants against two leaders of the FDLR, a largely Rwandan Hutu armed group, some of whose members participated in the 1994 genocide in Rwanda. Callixte Mbarushimana, the executive secretary of the FDLR, was arrested in France in October 2010, but ICC pre-trial judges declined to confirm the charges against him for lack of sufficient evidence. He was released in December 2011. Gen. Sylvestre Mudacumura, the FDLR’s military commander, is still in Congo, evading justice.
The number and stature of Congo-related cases before the ICC do not address the scale of the crimes committed since 2002 (as of which the ICC has jurisdiction).
During a visit to Kinshasa in March 2014 and again in a news release about the Lubanga appeal verdict, Fatou Bensouda, the ICC prosecutor, said that her office will “continue its work in the Democratic Republic of Congo, with the support of DRC authorities, to break the cycle of violence in the country and the wider Great Lakes region.”
Human Rights Watch has repeatedly urged the ICC Office of the Prosecutor to explore the regional dimension of the conflict in Congo, notably by investigating the role of senior political and military officials from Congo, Rwanda, and Uganda who supported, armed, and financed abusive armed groups in eastern Congo over the years. For example, in 2012 and 2013, Human Rights Watch documented Rwandan support to the M23, which was reminiscent of Rwandan support to previous abusive Congolese armed groups, including the CNDP and the UPC. Human Rights Watch has also urged the ICC prosecutor to investigate alleged crimes by the Congolese army and, evidence permitting, to prosecute those most responsible. These steps are crucial for the ICC to make a meaningful contribution to justice in Congo.
Human Rights Watch recognizes that the ICC is investigating international crimes in seven other countries, and considering whether to open investigations in at least nine others, and may lack the resources to take on additional Congo cases at this time. But the office should consider how it can do so in the coming years and should formulate a strategy to address outstanding accountability needs in Congo. The court in turn needs strong, long-term support from ICC member countries, which should allocate sufficient resources to meaningfully address these and other country situations within its mandate.
From its inception, the ICC was never intended, and does not have the capacity, to investigate and prosecute all those responsible for grave international crimes in Congo. Under the “complementarity” principle in the Rome Statute, national authorities retain the primary responsibility to bring those responsible for war crimes, crimes against humanity, and genocide to account.
Over the past 10 years, Congolese military courts have prosecuted a number of cases involving war crimes and crimes against humanity, but much still needs to be done to effectively address impunity for serious international crimes committed in Congo. To strengthen the capacity of Congolese national courts to hear these cases, the Congolese government considered options for a specialized hybrid mechanism within national courts that would be entrusted exclusively to deal with war crimes, crimes against humanity, and genocide, and would include national and international staff. Human Rights Watch believes such a mechanism would go a long way to strengthen the capacity and independence of national courts in handling grave international crimes.