On a typically busy morning in North Kivu’s capital city Goma, nobody at the bank paid much attention to Bosco Ntaganda and his bodyguards. It had been a hectic few days for the rebel commander-turned-army general, who had also attended meetings with the provincial governor and the Democratic Republic of Congo (DRC) President Joseph Kabila.
Nothing unusual in that, except Ntaganda is a wanted man, under indictment by the International Criminal Court (ICC) for war crimes in the northeastern Ituri region where Hague prosecutors allege he played a senior role in the Union of Congolese Patriots (UPC), a militia group accused of human rights abuses, including ethnic massacres, torture and rape.
But four years after the ICC first issued the warrant, Ntaganda still lives openly in Goma. He has made peace with the government and serves in the army. His continued freedom is bad news for a court struggling with recent judicial setbacks and an increasingly sceptical DRC public.
“Bosco is a key challenge for the ICC in terms of credibility and how it is perceived,” said Geraldine Mattioli Zeltner, advocacy director of the international justice programme at Human Rights Watch (HRW). “Implementing that arrest warrant is a key aspect of that credibility.”
The court has been knocked by developments in The Hague where the former UPC leader, Thomas Lubanga, sits in a cell in the seaside resort of Scheveningen contemplating his improving prospects for freedom.
After more than four years in custody and 18 months into his trial – the ICC’s first – for recruiting child soldiers in Ituri, judges last month stopped the case for the second time and ordered his release.
In a ruling on 8 July, they said a fair trial was impossible and criticized ICC prosecutor Luis Moreno-Ocampo for his “unequivocal refusal” to obey court orders and disclose the identity of an intermediary working with investigators. The judges ruled that Moreno-Ocampo had claimed a “separate authority which can defeat the orders of the court … a profound, unacceptable and unjustified intrusion into the role of the judiciary.”
Intermediaries helped prosecutors with their investigations on the ground in DRC, identifying leads and possible witnesses. Lubanga’s defence has alleged that some have paid off prosecution witnesses and coached them to lie.
Prosecutors deny defying the judges. They insist that staying the trial was a judicial overreaction and say they cannot endanger the intermediary by disclosing his identity before proper protective measures are put in place.
“[The office of the prosecutor] will show that the decision to stay proceedings in this case was excessive and disproportionate,” reads the appeal. “The chamber had at its disposal a range of alternative adequate remedies short of discontinuation of trial proceedings, a measure that not only impacts on the rights of the prosecution but also on those of victims and of the communities where the crimes have taken place.”
An ICC spokesperson refused to comment further. Lubanga will remain in ICC custody pending the outcome of the appeal.
The trial was also stayed in 2008 when prosecutors failed to disclose key evidence to the defence team. More delays, coupled with the possible release of Lubanga, are prompting criticism. Georges Kapiamba, a lawyer and member of the Congolese Coalition for the ICC, urged Moreno-Ocampo to reconsider his refusal to comply with the judge’s orders.
“He should think about the consequences of maintaining his current position on the credibility of the court,” said Kapiamba. “Congolese people are interpreting [the staying of the trial] as willingness by the ICC to make things unnecessarily long.”
While pointing out that delays are to be expected with the court’s first trial and that the judicial process can be lengthy, international analysts are also concerned about the effects the high-profile problems are having on the court’s reputation.
“Ultimately if we keep having delays … it makes it very difficult to promote the ICC,” said Lorraine Smith, the ICC programme manager at the International Bar Association. “It casts a shadow on people’s perception of the [court].”
There are also fears of misunderstandings. “The problem remains that this will be a basis for Lubanga’s supporters to claim that he is innocent,” said HRW’s Mattioli.
The survivors of the ethnic violence in Ituri, particularly those who have cooperated with the ICC and now fear retribution, are among the most affected by the recent developments.
Carla Ferstman, director of Redress, a human rights group working with survivors of war crimes in DRC, is concerned that ICC outreach teams are not doing more to explain the situation.
“The court has been very quiet … perhaps this is because of the ongoing appeals process, but it is a shame there is so little coming from the court as it is important for them to address the misinformation and manage expectations,” said Ferstman.
“If you think about it positively, the decision is a very strong sign of the independence of the court, that the court is prepared to take a decision that is procedurally right, but this will not make much difference to victims in DRC where the decision is likely to confirm their worst feelings about a court that is not able to address their concerns.”
It has been a turbulent few years for the ICC, the world’s first permanent war crimes court, which came into being in 2002. With no police force of its own it relies on ICC member states to make arrests. Seven suspects from Uganda and Sudan remain at large, and in November 2009 judges refused to confirm the charges against Darfur rebel leader Abu Garda, at the time the only ICC indictee to surrender himself voluntarily.
Meanwhile, the trial of DRC’s former vice-president Jean-Pierre Bemba for crimes in the Central African Republic has been postponed from July pending a defence motion to suspend proceedings.
Pressure on “Terminator”
The arrest of Ntaganda – known as the Terminator from his time in Ituri – would give the ICC a welcome public relations boost in its fight against impunity. However, the government has refused to make the arrest, saying Ntaganda is too important to the ongoing peace process in the Kivu provinces.
After leaving the UPC, Ntaganda went to Goma where he joined the National Congress for the Defence of the People (CNDP), led by Laurent Nkunda. He eventually forced Nkunda out and in early 2009 signed a peace deal with the government. Human rights groups accuse Ntaganda of atrocities in North Kivu, including masterminding the 2008 attack on the town of Kiwanja.
A senior CNDP official told IRIN that Ntaganda was willing to go to The Hague – but not yet. “He doesn’t fear the ICC at all,” said Desire Kamanzi. “But he has a lot of work to do for his people and the community at large. He’s not ready to surrender himself because of pressure from international activists.”
Activists like Kapiamba, however, insist Ntaganda belongs in a courtroom, not the national army. “His presence within the army is menacing victims and witnesses and contributing to worsening tension in the region,” he said.
[This report does not necessarily reflect the views of the United Nations]