Will Nkunda Face Justice?

The former Congolese rebel leader Laurent Nkunda has been in custody for more than 100 days now in Gisenyi, Rwanda. Meanwhile, his family and lawyers say they have had no contact with him since his arrest on Rwandan soil on January 22.

The question that is preoccupying Congolese is whether Nkunda will actually be tried and if so by whom?



Congo wants to put him on trial at home and has made a formal extradition request to the Rwandan authorities, but several obstacles remain before that could happen.



One major hurdle is that Congo keeps the death penalty on its books. Rwanda outlawed capital punishment in 2007 and will only extradite “if the requesting state gives formal guaranties that the death penalty will not be implemented”.



He is on Rwandan soil and therefore Rwandan law must be taken into account in the extradition procedure. However, Congo doesn’t want to abolish the death penalty just to obtain Nkunda’s transfer.



It is worth noting that although the death penalty is still in force in Congo and a moratorium on executions has expired, everybody knows that this sentence is not used in practice. Is this not a guarantee of the non-implementation of the death penalty that could facilitate Nkunda’s transfer from Rwanda?



Justice ministers from Rwanda and Congo met in Kigali on May 5 to discuss the extradition request. The two ministers acknowledged that Nkunda is a Congolese citizen alleged to have committed war crimes and crimes against humanity in Congo and therefore prosecutable in a Congolese court.



However, in concrete terms it seems that the Rwandan government doesn’t want to extradite Nkunda, not only for reasons cited above, but also because Nkunda, a Tutsi, fought against the Rwandan rebel group, the FDLR.



The FDLR was founded by Hutu rebels who fled into Congo following the 1994 genocide. In that respect, he has the sympathy of Tutsis around President Paul Kagamé.



There is also the fact that Nkunda knows too much and Kigali would not want him to reveal any confidential details of its policy towards the Kivu provinces. Rwanda has long been accused of supporting Nkunda and has previously sent its troops into North Kivu in pursuit of the FDLR. It has also been accused of exploiting the region’s mineral wealth.



There are rumours flying that Kagame might be looking for a country of refuge for Nkunda, or that Rwanda would like him to be tried in a neutral country.



South Africa has been mentioned as one possibility though that has not been confirmed. The Congolese justice ministry is categorically against this neutral state idea.



For Congo, it and Rwanda have acknowledged that Nkunda is a Congolese citizen who is alleged to have committed serious crimes on Congolese territory. Therefore, Congolese tribunals have jurisdiction over him.



However, Nkunda’s lawyers and others have expressed concern that he couldn’t get a fair trial in Congo.



In that case, another possibility is the International Criminal Court, ICC. Congolese want to see Nkunda held accountable for his crimes. If there are difficulties on the national level, an international court could prosecute him.



However, the path of international justice has not always been a smooth one in Congo.



The paradox in this case is that on the one hand the Congolese government is struggling to obtain Nkunda’s extradition in the name of the fight against impunity and on the other hand it refuses to implement the arrest warrant issued by the ICC against Bosco Ntaganda.



Congo is also integrating Nkunda’s comrades in arms into the national army – all in the name of peace. Some of the former rebels are in Kinshasa and are expecting to join the government.



As things stand, it is impossible to say if Nkunda will be tried in Congo or elsewhere. It seems only Rwanda can answer this question.



The views expressed in this article are not necessarily the views of IWPR.