Bosco Ntaganda sits in the courtroom of the International Criminal Court during the closing statements of his trial in The Hague, Netherlands, August 28, 2018. 

© 2018 Bas Czerwinski/Pool via AP
On July 8, 2019, a panel of three judges of the International Criminal Court (ICC) is due to deliver its verdict in the case against Bosco Ntaganda for alleged war crimes and crimes against humanity in Ituri, northeastern Democratic Republic of Congo, in 2002 and 2003.

Ntaganda, an armed group leader who had fought with various armed groups and was later a Congolese army general, was implicated in grave crimes in eastern Congo for over a decade. The ICC issued an arrest warrant against him in 2006, but he remained at large for almost seven years before surrendering in March 2013. His trial started in September 2015.

Ntaganda is the fourth person to be tried by the ICC for grave international crimes in Congo. Sylvestre Mudacumura, the military commander of another armed group responsible for widespread violations in eastern Congo, has been wanted by the ICC since 2012 for war crimes allegedly committed between 2009 and 2010. He remains at large.

The following questions and answers address Ntaganda’s trial, next steps in the proceedings, and the work of the ICC in Congo.

  1. Who is Bosco Ntaganda?
  2. What crimes has Ntaganda been tried for?
  3. What happened in Ituri?
  4. What other crimes did Ntaganda allegedly commit after 2003?
  5. Why are Ntaganda’s trial and upcoming verdict significant?
  6. How long was Ntaganda’s trial?
  7. Did victims participate in the trial?
  8. Were people in Congo able to follow the proceedings in The Hague?
  9. What happens after the verdict?
  10. Will victims receive reparations?
  11. What else is the ICC doing in Congo and what more should it do?
  12. What are Congolese authorities doing to address impunity for grave international crimes?

 

  1. Who is Bosco Ntaganda?

Bosco Ntaganda was born in 1973 in Kinigi, Rwanda. He fled to Congo as a teenager amid attacks on ethnic Tutsi in Rwanda. He began his military career in 1990 in the Rwandan Patriotic Front (RPF), a Rwandan rebel group then based in Uganda. The RPF went on to bring an end to the Rwandan genocide in 1994 and formed the government that is still in power in Rwanda. 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 armed 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 former Ituri district.

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 abuses, including ethnic massacres, torture, rape, and the widespread recruitment of children, some as young as 7.

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 on appeal in December 2014. Ntaganda was the co-accused in that case but eluded justice until he surrendered in 2013.

During that time, Ntaganda continued to lead troops responsible for grave abuses and received significant support from backers in the Rwandan military.

  1. What crimes has Ntaganda been tried for?

Ntaganda has been tried for 13 counts of war crimes and five counts of crimes against humanity. These include murder and attempted murder, rape, sexual slavery, attacking civilians, pillaging, displacement of civilians, attacking protected objects, and enlisting and conscripting child soldiers under age 15 and using them to participate actively in hostilities - all allegedly committed in the context of the armed conflict in Ituri in 2002 and 2003.

In the first ICC arrest warrant issued in August 2006, Ntaganda, like Lubanga, was only charged with the war crimes of recruiting and using child soldiers. In July 2012, the ICC issued a second arrest warrant against Ntaganda, which included four additional counts of war crimes and three additional counts of crimes against humanity. The ICC prosecutor later added more charges. The final expanded set of charges was more representative of the range of grave crimes the UPC allegedly committed in Ituri and partly addressed concerns raised by Congolese activists and Human Rights Watch about the narrow scope of the cases against Ntaganda and Lubanga.

Ntaganda’s trial did not cover crimes allegedly committed by troops under his command in other parts of Congo after 2003. In 2006, after leaving the UPC, Ntaganda moved to North Kivu province in eastern Congo and remained there until he surrendered in 2013. During this period, 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. Human Rights Watch said that these crimes should be included in the charges against Ntaganda, but they were not.

  1. What happened in Ituri?

The Ituri district, which became a province in 2015, has been one of the worst-affected areas in eastern Congo’s prolonged conflict. Localized fighting between the Hema and Lendu ethnic groups, which began in 1999 over land disputes, expanded after Ugandan military forces backed Congolese armed groups. As the conflict spiraled and armed groups multiplied, more than 60,000 civilians died. Competition for the region’s lucrative gold mines and trading routes was a major factor contributing to the fighting. Foreign armies and local militia groups fought each other and committed numerous violations, often targeting civilians. Armed groups, such as Ntaganda’s UPC, carried out widespread ethnic killings, torture, and rape.

Human Rights Watch documented serious human rights violations in Ituri in the early 2000s, including in three reports, published in 2001, 2003, and 2005. While the situation became more stable in the years that followed, armed groups remained active in some parts of Ituri. In December 2017, a new wave of violence erupted in Ituri’s Djugu territory. Armed groups carried out deadly attacks on villages, killing scores of civilians, raping or mutilating many others, torching hundreds of homes, and displacing an estimated 350,000 people. The situation in Djugu remained volatile. In early June 2019, communal violence between the Hema and the Lendu resurfaced in several parts of Ituri, leaving scores of people dead and displacing over 300,000.

  1. What other crimes did Ntaganda allegedly commit after 2003?

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, backed by Rwanda. Among other grave abuses, CNDP troops under Ntaganda’s command massacred an estimated 150 people in the town of Kiwanja in late 2008.

In early 2009, following an agreement between the Rwandan and Congolese governments, CNDP fighters were integrated into the Congolese army and Ntaganda became a general and deputy commander of military operations in eastern Congo. Army troops under Ntaganda’s command carried out numerous attacks on civilians, killing and raping them and burning homes. In 2009 alone, Human Rights Watch documented the killings of more than 730 civilians by  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.

From 2009 to 2011, Ntaganda led a brutal campaign against perceived military and civilian opponents, recruited child soldiers and thwarted efforts to demobilize them, blocked judicial investigations into violations by people loyal to him, and used his influence in the military to confiscate land and increase his wealth.

In April 2012, Ntaganda and his loyal subordinates defected and formed a new rebel group, the March 23 Movement (Mouvement du 23 mars, M23), which committed numerous grave abuses, including summary executions, rape, and recruitment of child soldiers. Ntaganda surrendered to the United States embassy in Kigali, Rwanda in March 2013 and was transferred to the ICC. After the defeat of the M23 later in 2013, M23 commanders and many of their troops fled 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 documented that Congolese senior security force officers in Congo mobilized over 200 former M23 rebel fighters from neighboring countries to quash protests against then-President Joseph Kabila in December 2016.

  1. Why are Ntaganda’s trial and upcoming verdict significant?

Although he was wanted by the ICC, Ntaganda lived freely in eastern Congo for seven years in full view of Congolese government officials, United Nations peacekeepers, and foreign diplomats. The fact that Ntaganda is facing justice 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.

The trial also sends a strong warning to other abusive commanders still active in Congo. Ntaganda’s military career moving from one armed group to the other, with occasional integration into the Congolese army, resembles those of other rebel leaders whom the Congolese government has often rewarded with positions, wealth, and power while civilians suffer. That Ntaganda remained free for so long shows that grave abuses often continue while impunity persists. Seeing Ntaganda in the dock and judged by the ICC is a powerful reminder to other leaders of abusive armed groups that they too could face prosecution.

The case against Ntaganda also puts into focus some of the changes the current prosecutor, Fatou Bensouda, made after taking office in 2012. Around that time, the prosecution’s office had suffered a number of setbacks in moving cases to trial, and Bensouda announced changes aimed at improving the quality of investigations and prosecutions. These included a shift from focused investigations to more in-depth, open-ended investigations while maintaining focus and a commitment to present cases at the confirmation hearing that are trial ready. The office publicly credited these changes when all of the charges against Ntaganda, including additional charges added by the prosecution following his surrender, were confirmed.

It is important to note, though, that the prosecution also applied these changes in pretrial proceedings to its cases against Laurent Gbagbo and Charles Blé Goudé in the Côte d’Ivoire situation. Both were acquitted in January 2019. The judges have yet to issue written reasons. Comparison of the Gbagbo/Blé Goudé and Ntaganda cases may shed further light on court practice and areas for improvement.

The addition of charges to the case against Ntaganda addressed a number of concerns with the initial framing of the case:

  • Adding and investigating new charges: The additional charges brought against Ntaganda acknowledged the suffering of victims from both ethnic groups, the Hema and the Lendu, enabling them to participate in proceedings at the ICC and to pursue reparations (for more information on the new charges, see question 2).
     
  • Focusing on sexual and gender-based crimes: The additional charges against Ntaganda also included crimes of sexual violence. If Ntaganda is convicted for these charges and the verdict is upheld on appeal, this could become the first final conviction for such crimes at the ICC. Ntaganda was tried for the war crimes and crimes against humanity of rape and sexual slavery. These include crimes against members of Ntaganda’s own armed group, the UPC. Judges in the Ntaganda case provided a new interpretation of the war crimes of rape and sexual violence, affirming that the protection against sexual violence under international law is not limited to members of the opposing armed forces who are out of combat or civilians not directly participating in hostilities. It also includes members of the same armed forces as those responsible for such crimes.

At the same time, however, the Ntaganda case failed to address other crimes allegedly committed by Ntaganda and troops under his command in the Kivus, highlighting some of the outstanding issues and gaps in the ICC’s approach to its investigations in Congo (see question 11).

  1. How long was Ntaganda’s trial?

Trials of grave crimes meeting international fair trial standards are complex and inevitably take time. The pretrial proceedings took over a year, and the trial itself took three years.

Ntaganda turned himself in to the United States embassy in Kigali, Rwanda, on March 18, 2013 and was transferred to the ICC on March 22. The hearing for the confirmation of charges took place in February 2014. The pretrial chamber unanimously confirmed the charges against Ntaganda in June 2014.

The trial started in September 2015 and closing arguments took place in The Hague in August 2018. There were 248 hearings and a total of 102 witnesses called by the prosecutor, the defense, and the legal representatives for victims.

In May 2019, Ntaganda filed a request to disqualify one of the judges on the bench, Judge Kuniko Ozaki, because she briefly acted as Japanese ambassador to Estonia while serving as a judge in the Ntaganda case in March and April 2019. Ntaganda argued that the appearance of her judicial independence and impartiality had been compromised and her subsequent resignation from the diplomatic posting was insufficient to restore it. On June 20, a plenary of judges rejected the request for disqualification, finding that the circumstances of Judge Ozaki’s tenure as ambassador did not satisfy the threshold necessary to rebut the presumption of impartiality.

  1. Did victims participate in the trial?

A total of 2,123 victims were authorized to participate in Ntaganda’s trial.

The Rome Statute, founding treaty of the ICC, put in place an innovative system of victim participation before an international criminal tribunal. Through this system, victims of the alleged crimes can make their “views and concerns” known to the judges. 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 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, appear before the court in person. In the Ntaganda trial, five participating victims presented their views and concerns in person and three appeared as witnesses.

The participating victims were divided into two groups: one consisting of former UPC child soldiers and their relatives, and the other of victims of UPC attacks and their relatives. The creation of two distinct groups followed victim applicants’ concerns that victims of the two main ethnic groups involved in the conflict in Ituri – the Hema and Lendu –might have different views. Each group of victims was represented by a common legal representative through which they expressed their views on matters heard during the trial and were authorized to examine witnesses on specific issues.

  1. Were people in Congo able to follow the proceedings in The Hague?

The ICC, with its headquarters in The Hague, is far from the sites of the crimes it has adjudicated. It faces the challenge of making sure that its proceedings are accessible to the communities most affected by these crimes and that victims are informed of their rights. Dedicated court outreach efforts are essential and key to ensuring meaningful justice.

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.

In the Ntaganda case, the judges explored the possibility of holding the opening and closing statements in Congo, to bring the judicial work of the court closer to the Congolese people. But in June 2015, the ICC presidency decided not to hold the opening statements in Congo, and in March 2018, the trial judges reached the same conclusion regarding the closing statements. Both sets of judges cited prevailing insecurity, concerns for the safety and well-being of victims and witnesses, and the financial cost.

While holding the hearings in Congo may have required additional financial resources, victims would have greatly benefitted from being closer to the activities of the court. The security situation in Bunia, Ituri’s capital, had been calm for years and only started worsening in February 2018. Arrangements could have been made in partnership with the UN peacekeeping mission in Congo (MONUSCO) and the Congolese government to ensure the safety and well-being of witnesses and victims.

For the opening of the trial, the Registry screened video summaries of the opening statements in Bunia and broadcasted an audio version of the summaries in several languages through a network of radios in Ituri. It is difficult to assess whether all the affected communities, including those in remote areas, were in fact able to access these radio programs. Video summaries of the opening statements were also shown in town hall meetings with affected communities in Ituri.

The Registry, with the support of MONUSCO, broadcasted live the trial’s opening statements in Goma, North Kivu, and Kinshasa, the country’s capital, but faced connectivity issues due to a poor internet network. Other activities around the opening of the trial with civil society, students, and journalists were carried out in Goma and Bukavu, South Kivu, with the aim of managing expectations regarding the scope of the case.

The Registry told Human Rights Watch that it tried to keep the main stakeholders informed of developments in the proceedings throughout the trial, including through radio programs in local languages, in-person meetings, and video summaries. However, the outbreak of Ebola in North Kivu and the volatile security situation in Ituri has at times slowed down or hindered these activities.

The Registry is planning to carry out similar outreach initiatives around the verdict.

  1. What happens after the verdict?

After the judgment is issued, the prosecutor and the defense have 30 days to appeal on the basis of a procedural error, an error of fact or law, or any other grounds that affect the fairness or reliability of the proceedings or the decision. Appeals proceedings are likely to last several months, depending on the grounds for appeal.

In the meantime, if Ntaganda is found guilty of some or all the charges against him, he will remain in detention and the trial chamber will hold hearings to determine the sentence against him and reparations for victims.

If Ntaganda is acquitted of all charges, the statute of the ICC provides for the immediate release of the detainee. In exceptional circumstances, the trial chamber may decide to keep the person in custody during an appeal if justified by the risk of flight of the accused, the seriousness of the offense, and the probability of success on appeal.

  1. Will victims receive reparations?

Including the possibility of reparations for victims within the ICC’s mandate and creating the Trust Fund for Victims were important advances to make international justice more attentive to the concerns of victims and their right to redress. Under the Rome Statute, reparations include, but are not limited to, restitution, compensation, and rehabilitation. Reparations can be either individual or collective, that is, awarded to a community affected by the crimes adjudicated.

The court may order a defendant to pay reparations or, if the defendant is indigent, use the funds raised by the Trust Fund for Victims. Reparations can only be ordered by the court against a defendant who has been found guilty.

If Ntaganda is convicted, but pending a potential appeal, the trial chamber will take preparatory steps to facilitate and expedite the reparations proceedings. These may include inviting submissions, appointing experts, and even issuing a reparations order. However, the order can only be carried out once a conviction has been confirmed on appeal. Three cases before the ICC (Lubanga, Katanga, and Al-Mahdi) are in this phase.

Throughout the reparations proceedings, it is essential for the court to communicate clearly with the affected communities to ensure the proper participation of concerned victims and to minimize confusion and frustrated expectations.

  1. What else is the ICC doing in Congo and what more should it do?

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 three leaders of armed groups accused of crimes in Ituri, in addition to Ntaganda:

  • Thomas Lubanga: Former UPC leader, who was convicted of recruiting and using child soldiers in hostilities and was sentenced to 14 years in prison in 2012. His conviction and sentence were confirmed on appeal, and in December 2015 he was transferred to a prison in Congo to serve the remainder of his sentence.
  • Germain Katanga: Former chief of staff of the Patriotic Force of Resistance in Ituri (Force de résistance patriotique d’Ituri, FRPI), who was found guilty for the 2003 attack on civilians in Bogoro village and sentenced to 12 years in prison in 2014. Both the prosecution and defense dropped their appeals and his sentence was reduced by three years and eight months. Katanga was transferred to Congo in December 2015. He is currently on trial in Kinshasa for other crimes allegedly committed during the conflict in Ituri.
  • Mathieu Ngudjolo Chui: Former chief of staff of the Nationalist and Integrationist Front (Front des nationalistes et intégrationnistes, FNI), who was acquitted of all charges of war crimes and crimes against humanity related to the 2003 attack on Bogoro. He returned to Congo in May 2015.

Unfortunately, the prosecution’s decision to sequence its investigations, initially focusing solely on pro-Hema groups and only 18 months later bringing cases against pro-Lendu groups, made it difficult to maintain perceptions of impartiality.

For crimes committed in the Kivu provinces of eastern Congo, the ICC issued arrest warrants against two leaders of the FDLR:

  • Callixte Mbarushimana: Executive secretary of the FDLR, who was arrested in France in October 2010, but ICC pretrial judges declined to confirm the charges against him for lack of sufficient evidence. He was released in December 2011.
  • Sylvestre Mudacumura: FDLR’s military commander, who is still in Congo, evading justice.

The number and stature of Congo-related cases before the ICC, however, do not address the scale of the crimes committed since 2002 (as of which the ICC has jurisdiction).

Human Rights Watch has repeatedly urged the ICC 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. Most recently, Human Rights Watch urged the ICC to expand its investigation in Congo to cover the attacks that began in Beni, North Kivu, on October 2, 2014. These steps are crucial for the ICC to make a meaningful contribution to justice in Congo and the broader Great Lakes region.

Human Rights Watch recognizes that the ICC is investigating grave international crimes in nine other countries and considering whether to open investigations in at least nine more, and may lack the resources to take on additional Congo cases at this time. But the prosecutor should consider how to do so in the coming years and 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 the court’s growing workload.

  1. What are Congolese authorities doing to address impunity for grave international crimes?

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, or elsewhere. Under the “complementarity” principle in the Rome Statute, national authorities retain the primary responsibility to hold those responsible for war crimes, crimes against humanity, and genocide to account.

Over the past 15 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. The vast majority of atrocities committed in Congo remain unpunished and the proceedings in recent years have highlighted challenges and gaps in the domestic judicial system. The Congolese government should prioritize the delivery of justice for grave international crimes at the domestic level by strengthening national accountability efforts. This will help deter violence, build respect for the rule of law, ensure wider accountability than the ICC can deliver with its limited mandate, and increase local resonance of justice efforts.

Needed reforms to improve domestic accountability efforts include improving investigations and prosecutions to guarantee fair trials that are representative of both the people committing the crimes and the types of crimes committed; improving access to justice for those most affected by the crimes and improving respect for the rights of defendants and victims; pursuing priority cases following a solid prosecutorial strategy; and ensuring judicial independence. In many cases, those in positions of power – who have frequently been most responsible for the worst crimes – have been protected from arrest and prosecution.