Nkunda Faces ICC Dilemma

Congolese militia leader Laurent Nkunda may face a crisis in the ranks of his rebel force, following an announcement this week from the International Criminal Court, ICC, that it has issued an arrest warrant for his second-in-command.



Human rights groups are calling on Nkunda to immediately hand over Bosco Ntaganda – chief of staff of his militia, the Congrès National Pour la Défence du People, CNDP, which operates in eastern Congo’s North Kivu province.



But a diplomat who helped broker the recent Goma peace deal and is in regular contact with Nkunda says the general is in a difficult position.



Roeland van de Geer, European Union Special Representative for the Great Lakes region, says although Nkunda may want to hand over Ntaganda, there will be resistance within the CNDP, as some members remain loyal to him.



“Nkunda will realise that if he hands over his number two it will set a powerful example. He would win the moral high ground, but the question is, does he have the support?” said van de Geer, who along with envoys from the African Union, the United States and the United Nations played a vital role in reaching the Goma accord in January.



He describes Nkunda as a highly rational man who understands that those accused of war crimes will face national and international justice. Van de Geer said both Nkunda and Ntaganda were aware of the arrest warrant months ago and said he had discussed it with the rebel general.



The Hague-based court unsealed the indictment for the 35-year-old, known as the Terminator, on April 29. It was issued in August 2006 but kept secret until now.



The ICC accuses Ntaganda of crimes in the Ituri district of eastern Congo. Prosecutors say he enlisted and conscripted children under the age of 15 into the Forces Patriotiques Pour la Libération du Congo, FPLC, in 2002 and 2003.



The FPLC, in which Ntaganda was a senior figure, is the military wing of Thomas Lubanga Dyilo’s Union des Patriotes Congolais, UPC. Lubanga is in ICC custody and due to go on trial in June. He was joined recently in The Hague detention unit by two other Ituri militia leaders – Germain Katanga and Mathieu Ngudjolo Chui.



Ntaganda is a Rwandan national who fought with the Rwandan Patriotic Army, which overthrew the government after the 1994 genocide.



He is also wanted by the Congolese authorities who issued an arrest warrant for him in April 2005. Prosecutors in Bunia accuse Ntaganda of crimes including arbitrary arrest, torture, assassination and illegal detention.



They say he was allegedly involved in the killing of a Kenyan peacekeeper and the kidnapping of a Moroccan peacekeeper in 2004. He is also implicated in the murder of two aid workers in 2005 and numerous attacks on villages in Ituri.



Human Rights Watch says troops under Ntaganda’s command killed civilians from the Lendu and Ngiti ethnic groups in the village of Songolo in 2002 and attacked the gold mining town of Mongbwalu where 800 civilians died.



He was briefly in custody in Kinshasa in 2002 but was released along with eight others in exchange for the then human rights minister Ntumba Luaba who was being held by Ituri militia leader Chief Kahwa Mandro.



“Ntaganda has a track record of inflicting unbearable suffering on civilians in eastern Congo,” said Anneke Van Woudenberg, senior researcher at HRW’s Africa division. “The ICC should charge him for the full range of crimes for which he is responsible, allowing his victims the justice they desperately seek.”



He eventually left Ituri in 2006 and made his way to North Kivu to join Nkunda.



Van Woudenberg told IWPR that he continued to commit crimes there. “This is a man with a serious track record of human rights abuses,” she said. “There are no indications he has changed his ways.



“It is now up to Laurent Nkunda to hand over Bosco Ntaganda to ICC officials. Nkunda can’t say ‘this didn’t happen when he was with me. This happened previously’. That’s irrelevant. Nkunda as the leader of the group is responsible for ensuring that he is handed over.



“This is a real test for him. This is the time for him to put his professed commitment to human rights into action.”



But a spokesman for Nkunda told IWPR it is up to Ntaganda – not the general – to decide what he should do. “He is free to make his own choice,” said René Abandi. “He may or may not respond [to the ICC].



What should be done if Nkunda fails to arrange his lieutenant’s transfer into ICC custody is dividing commentators.



Bukeni Waruzi, Africa programme director at the human rights NGO Witness, doubts that Nkunda will hand over his second-in-command as it could increase his own chances of ICC prosecution. He believes it is then up to Congo’s United Nations Mission, MONUC, to track down the fugitive.



“By negotiations it will take years,” said Waruzi. “One of the duties of MONUC is to arrest war crimes suspects. MONUC has the capacity but it is not that easy.



“They will need to use force to get him, which will cost the lives of civilians, which is a high cost that MONUC needs to think carefully about. You cannot get a top leader as easily as a soldier. They will have to open fire, and this will cost lives.”



Others favour a political solution and insist military action – either by MONUC or the army – will not work. Van de Geer says an attack on Nkunda by the UN would result in “full scale war”. “MONUC don’t have the military strength,” he said. “The CNDP has 7,000 men who are ready to die.”



That’s a view shared by Habibu Jean Bosco from ACAT, the South Kivu anti-torture NGO. “The government doesn’t have an army capable of getting its hands on Ntaganda,” he said. “The only solution for the implementation of this arrest warrant is for the government to negotiate with Ntaganda.”



Some like Van Woudenberg say the international community must also get involved. Van de Geer agrees it is important to keep the lines of communication with Nkunda open – even if he doesn’t comply with demands to give up Ntaganda.



“Let’s not throw away dialogue as it has yielded very concrete results in the past,” he said. “I’m willing to continue discussions with Nkunda, even if he is not cooperating fully with the ICC.”



But that’s an option the ICC is keen to avoid. With supects in Uganda and Sudan still roaming free, the idea that yet another indictee could evade capture and prosecution is unpalatable to say the least.

IWPR repeatedly approached the ICC for comment, but received no response by the time this report was published.



This report was produced by Lisa Clifford and Katy Glassborow, IWPR international justice reporters in The Hague, with contributions from IWPR journalists Jacques Kahorha and Taylor Toeka Kakala in Goma and Eugène Bakama Bope in Brussels.