Philippe Tunamsifu Shirambere, The Challenges of the Obligation to Co-operate between the ICC and the DR Congo : The Case of the Fourth Arrest Warrant Against General Bosco Ntaganda
THE CHALLENGES OF THE OBLIGATION TO COOPERATE BETWEEN THE ICC AND THE DRC: THE CASE OF THE FOURTH ARREST WARRANT AGAINST GENERAL BOSCO NTAGANDA Philippe Tunamsifu Shirambere* I. Introduction For more than two decades, the African Great Lakes Region has been characterized by intense political violence which has resulted in various violations of serious international crimes including genocide, crimes against humanity and war crimes. The Democratic Republic of Congo (DRC), former Republic of Zaire, located in Central Africa, is the second largest country in Africa by area after Algeria. After 32 years of dictatorship of Mobutu’s presidency (19651997), the country entered into various armed conflicts. The first conflict began in the eastern part of the former Republic of Zaire in 1996 with the Alliance of Democratic Forces for the Liberation of Congo-Zaire (AFDL). The AFDL was a coalition movement created in October 1996 that successfully overthrew the government of Mobutu in 1997 in a military coup backed by the neighboring countries as Angola, Burundi, Rwanda, and Uganda. In eight months, October 1996-May 1997, the AFDL took over the country. Laurent-Désiré Kabila, spokesperson for the coalition, came into power, he changed the country’s name to the DRC and the swearing in took place on May 17, 1997 while President Mobutu fled to Morocco. While Burundi, Rwanda and Uganda stayed and pillaged the regions gold, diamonds and coltan, President Laurent-Désiré Kabila was angered by their refusal to leave DRC1 and in July 1998, he decided to withdrawal the foreign armies from DRC. The Rwandan and Ugandan Armies got angry and consequently, in August 1998, they turned against him and backed a new rebellion. This was the beginning of the second armed conflict with three rebel’s movements. The Congolese Rally for Democracy (CRD) occupying the Kivu provinces with the support of Rwanda, the Movement for the Liberation of Congo (MLC) the Equateur province supported by
*
Lecturer of law at the Faculty of Law, ULPGL Goma/ DRC, Honors in Public International Law at the ULPGL Goma/ DRC, MA in International Law and the Settlement of Disputes, UPEACE/ Costa Rica 1
P. Clark, (2010), The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without lawyer, Cambridge University Press, Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sao Paulo, Delhi, Dubai, Tokyo, Mexico City, p. 24
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Uganda, and the Union of Congolese Patriots (UPC) the Ituri supported by Uganda and Rwanda. Consequently, the country was divided and each rebellion movement administrates its area like a “state”. On 16 December 2002, a meeting was held in Pretoria (Republic of South Africa) where various elements/groups and entities involved in the Inter-Congolese Dialogue (ICD) signed a Global and Inclusive Agreement on Transition in the DRC2. The Parties to that Agreement having armed forces, agreed to combine their efforts and to safeguard the sovereignty and territorial integrity of the DRC. The Global and All Inclusive Accords of 2002, established the objective of an integrated national army, meant to include all the previously hostile forces. However, during different stages of the armed conflicts, the warlords were involved in serious human rights violations and have had a hand in the commission of crimes, such as crimes against humanity and war crimes. Among the Institutions supporting democracy were the National Watchdog on Human Rights and the Truth and Reconciliation Commission. That is why the obligation to respond for the crimes which were committed was very crucial. Indeed, because the country was divided into five parts with different “administrations” and different organs of judicial bodies, the issue was as to how a fair trial against the presumed guilty of international crimes could be organized. According to that and because the DRC signed the Rome Statute on September 8, 2000 and deposited its instrument of ratification on April 11, 20023, the transitional Government of the DRC decided on April 19, 2004 to refer formally the situation to the International Criminal Court (ICC). Thus, the Prosecutor of the ICC4, Luis Moreno Ocampo, received a letter signed by the President Joseph Kabila of the DRC referring to him the situation of crimes within the jurisdiction of the Court allegedly committed anywhere in the territory of the DRC since the entry into force of the Rome Statute, on July 1, 2002. By means of this letter, the DRC asked the Prosecutor to 2
Signatories of Inter-Congolese Dialogue, Global and Inclusive Agreement on Transition in the DRC: Inter-Congolese Dialogue - Political negotiations on the peace process and on transition in the DRC, (2002), (n. d.) Retrieved Mai 15, 2011 from http://www.issafrica.org/AF/profiles/DRCongo/icd/transagmt.pdf 3 CPI-ICC (2003), Signature and Ratification of the Rome Statute by the DRC, Retrieved Mai 15, 2011 from http://www.icccpi.int/Menus/ASP/states+parties/African+States/Democratic+Republic+of+the+Congo.htm 4 CPI-ICC (2004), Prosecutor receives referral of the situation in the DRC, ICC-OTP-20040419-50. Retrieved Mai 15, 2011 from http://www.icccpi.int/menus/icc/press%20and%20media/press%20releases/2004/prosecutor%20receives%20referral%20of%20the%20situation %20in%20the%20democratic%20republic%20of%20congo?lan=en-GB
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investigate in order to determine if one or more persons should be charged with such crimes, and the authorities committed to cooperate with the ICC. The Prosecutor took note of and welcomed the affirmation by the DRC of its readiness to cooperate with the Court in all of its efforts pursuant to the referral. On 23 June 20045, after thorough analysis of the situation in the DRC, especially in the eastern region of Ituri, the Prosecutor announced his decision to open the first investigation of the ICC. A Judicial Cooperation Agreement was signed between the Office of the Prosecutor (OTP) and the DRC in October 2004 and cooperation mechanisms were progressively established on the DRC territory with MONUC and other relevant organizations. Currently three cases are ongoing in the context of this situation6: In Prosecutor v. Thomas Lubanga Dyilo, the prosecution application for a warrant of arrest was issued on January 12, 2006. He was arrested and on March 17, 2006, after which Lubanga was surrendered to the Court as a result of the first ever arrest warrant executed for the Court. In the Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, the subject of prosecution was the alleged joint commission through other persons, the offences of war crimes and crimes against humanity. The warrant of arrest had been issued on July 2, 2008, but was made public on October 18, 2008, and Katanga was surrendered by the DRC authorities and transferred to the ICC on October 17, 2007. For Mathieu Ngudjolo, the warrant had been issued on July 6, 2007 but made public on February 7, 2008, and was surrendered by the DRC authorities and transferred to The Hague on February 7, 2008.7 In the three cases, the Judicial Cooperation Agreement was well enforced between the DRC and the Office of the Prosecutor (OTP) with the support transportation of the UN Mission in RDC. The main question in this work is about the fourth arrest warrant issued on January 12, 2006 against the General Bosco Ntaganda; to challenge the Judicial Cooperation Agreement with the refusal of the Government of the DRC to arrest and transfer the General Bosco Ntaganda to the ICC. Furthermore the introduction and the conclusion, this work include two following points: 5
Coalition for the ICC, Cases and situations, RDC, Retrieved Mai 15, 2011 from http://www.iccnow.org/?mod=drc CPI-ICC (2004), ICC-01/04, Situation in DRC. Retrieved Mai 15, 2011 from http://www.icccpi.int/Menus/ICC/Situations+and+Cases/Situations/Situation+ICC+0104/ 6
7
See supra the Coalition for the ICC
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facts alleged and the ICC jurisdiction, and the warrant of arrest and the refusal of the Government of DRC to arrest and transfer Bosco Ntaganga.
II. Facts alleged and ICC jurisdiction As mentioned above, since 1996 the DRC was in various armed conflict in which three principles rebel movements were involved with the support of the neighbors countries. Among them, was the Union of Congolese Patriots (UPC) which was created by Thomas Lubanga in 2000 in Ituri supported by Uganda and Rwanda. Thus, Thomas Lubanga Dyilo was surrendered and transferred to the ICC on March 17, 2006, upon a warrant of arrest issued by Pre-Trial Chamber I for facing counts of war crimes consisting of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities in the DRC. Indeed, the Union of Congolese Patriots had the military wing; Patriotic Forces for the Liberation of Congo (Forces Patriotiques pour la LibĂŠration du Congo, FPLC). Bosco Ntaganda was appointed on 8 December 2003 as Army Chief of Staff by Thomas Lubanga. In accordance with the Global and All Inclusive Accords of 2002 which specified to combine all military wings of different rebel movements, in 2005 the Patriotic Forces for the Liberation of Congo integrated national army and Bosco Ntaganda was appointed as a general in the Armed Forces of the DRC, but he refused the offer preferring join, in 2006, another new rebellion of the General Laurent Nkunda; the National Congress for the Defense of the People (Congress National Pour la Defence du Peuple, CNDP) active in North Kivu in the DRC where he was appointed military Chief of Staff. According to Track Impunity Always8, Bosco Ntaganda is alleged to have been the primary recruiter of fighters from Ituri and to have answered to Thomas Lubanga. He has been used his authority to implement the FPLC policy of enlistment and conscription of children under the age of 15 and of using them to participate actively in hostilities in Ituri (DRC), between July 2002 and December 2003. As Army Chief of Staff, Bosco Ntaganda has also authority over the FPLC
8
Track impunity Always (TRIAL, 2011), Bringing justice to victims of international crimes: Bosco Ntaganda, Retrieved Mai 15, 2011 from http://www.trialch.org/index.php?id=801&L=5&tx_jbtrial_pi2[tab]=facts&tx_jbtrial_pi2[profile]=bosco_ntaganda_761&cHash=a84aa593e9
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Philippe Tunamsifu Shirambere, The Challenges of the Obligation to Co-operate between the ICC and the DR Congo : The Case of the Fourth Arrest Warrant Against General Bosco Ntaganda
training camps for child soldiers. He has taking part in FPLC attacks when the group used child soldiers and were involved in the killing of Lendu and Ngiti civilians in the towns of Songolo, Bunia and Mongbwalu. Moreover, he was involved in incidents involving peacekeepers in 2004, namely the kidnapping of a Moroccan peacekeeper and the murder of a Kenyan peacekeeper. There are also suggestions that he was implicated in the killing of two aid workers in the DRC. Those crimes are a violation not only of the domestic law particularly the Military Criminal Code, (Code Pénal Militaire du 18 Novembre 2002); violation of the laws and customary of war (Jus in belum), but also they are classified among international crimes for which the ICC has jurisdiction under article 5 (the crime of genocide; Crimes against humanity; war crimes; and the crime of aggression). Indeed, in accordance with the articles 11-13 of the Rome Statute of the ICC, the ICC has jurisdiction and then the following reasons can be mentioned: the DRC is a State Party, it had accepted the jurisdiction; Bosco Ntaganda have a “Congolese nationality” 9; and the crimes were committed in DRC after the entry into force of the Rome Statute of the ICC. Moreover, since April 2004, the government of the DRC decided to refer the situation in the DRC to the Court in conformity with the article 14 of the Rome Statute of the ICC.
III. Warrant of arrest and the refusal of the Government of DRC to arrest and transfer Bosco Ntaganga 9
According to the article 1 of the Law on Congolese nationality of November 2004, Congolese nationality is one exclusive. It cannot be held concurrently with another nationality. According to some information, the Court believes that the General Bosco Ntaganda is a national of Rwanda around thirty-five years of age. If this information might be true, he could not be promoted to the rank of general in the national army. Because it happened, I’m wondering to know the legal basis the Government of DRC might use by transferring the General Bosco Ntaganda if he is arrested.
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Philippe Tunamsifu Shirambere, The Challenges of the Obligation to Co-operate between the ICC and the DR Congo : The Case of the Fourth Arrest Warrant Against General Bosco Ntaganda
Since July 2004, the members of the ICC for investigation about international crimes have been deployed to Ituri in DRC. The joint team had conducted more than 70 missions inside and outside of the DRC, compiling more than 140 statements10. The warrant of arrest11 revel that from July 2002 to December 8, 2003 Bosco Ntaganda was a deputy Chief of General Staff for Military Operations ranked third in the hierarchy of the FPLC and was the immediate superior of the FPLC sector commanders. Moreover, he was aware of his role within the FPLC, and he used his authority in actively implementing the policy and practice adopted at a higher level of the UPC/FPLC. A warrant of arrest was first issued against Ntaganda on August 22, 2006 by the Pre-Trial Chamber I of the ICC but was kept under seal due to the risk of Ntaganda fleeing or obstructing the work of the Court. The warrant was unsealed on April 28, 2008 upon the request of the Prosecutor. According to the Arrest Warrant Ntaganda is accused to be criminally liable under article 25 (3) (a) of the Statute of the ICC for the following war crimes: enlisting and conscripting children under the age of 15 and using them in hostilities [article 8 (2) (b) (xxvi) or article 8 (2) (e) (vii), of the Statute]. However, the Court did not mention the provision relating to the Responsibility of commanders (article 28 of the Statute) while he might respond for all crimes committed by the soldiers under his effective command and control as a result of his failure to exercise control properly over such forces. Thus, Ntaganda is accused12 to have torturing and killing of hundreds of civilians of Lendu and Ngiti ethnicity between August 2002 and March 2003 when he was chief of military operations of the UPC, slaughtering of at least 800 civilians on ethnic grounds at Mongbwalu.
10
Moreno-Ocampo, L., (2006), Lessons From the First Cases, In Austrian Federal Ministry for Foreign Affairs and Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law, The Future of the ICC, Salzburg Retreat, Austria, p.4. Retrieved May 15, 2011 from http://www.uni-graz.at/~reisiast/Princeton%20Final.pdf 11 CPI-ICC, No.: ICC-01/04-02/06, Situation in the DRC in the case of the Prosecutor v. Bosco Ntaganda: Under Seal Warrant of Arrest, p. 3. Retrieved Mai 15, 2011 from http://www.icc-cpi.int/iccdocs/doc/doc305330.PDF 12 Olara F. (2009), Dr Congo: Arrest Bosco Ntaganda Now!, Retrieved Mai 15, 2011 from http://freeuganda.wordpress.com/2009/10/28/dr-congo-arrest-bosco-ntaganda-now/
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Even though, the Prosecutor has requested that “all concerned States authorities and actors contribute to his arrest and surrender him to the Court”. Unfortunately, the government of the DRC not only refused to arrest, but has promoted Ntaganda to the rank of general in its national army arguing that to arrest him would jeopardize peace efforts in the Kivu region. That is why the President Kabila invoked a difficult choice between justice and peace, stability, and security in eastern Congo because his choice was to prioritize peace.13 However, on the linkage between lasting peace and justice, Kofi Annan argues that “Justice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives”, and the European Union has stated that it "remains convinced that peace and justice are not contradictory aims. […] peace cannot be achieved without a suitable response to calls for individuals to be held accountable for the most serious international crimes”14. Indeed, after the peace agreement in 2002 which allowed all the military wing of rebel movement to integrate the national army, the transitional government of DRC tried to recognize the different rank of the warlords in the national army as the price to bring peace. That is why, in January 2005 Bosco Ntaganda was appointed to the position of general, but he refused the offer and joined the new rebel movement; the National Congress for the Defense of the People because the agreement, I think, excluded the possibility of amnesties for war crimes, crimes against humanity, and genocide. By adopting a tactic to put its headquarter in the city, the national army was unable to disturb the new rebel group in which Bosco Ntaganda belong as chief command officer as it was the case for the FPLC. Thus, the elected government changed also the strategy relating to the immunity issues. On January 23, 2008, it signed a peace agreement in Goma, North Kivu, with 22 armed groups, including the CNDP. In signing the peace agreement, the parties agreed to respect international humanitarian and human rights law. Aurélie Coppin reported that “many Congolese, especially those in the North Kivu province, fear that the arrest warrant against
13
HRW (December 2010), Seductions of « Sequencing » : The Risks of Putting Justice Aside for Peace, p. 14. Available at http://www.hrw.org/en/news/2011/03/18/seductions-sequencing 14 HRW (March 2011), Op. Cit., p. 1.
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Ntaganda will hamper the fragile peace currently being enjoyed as a result of the peace deal” 15. That is why the elected government adopted double strategies: to agree that no immunity could be granted to the warlords in order to please the international community represented in the conference during the signature of the agreement, but also a hidden agenda to not worry the warlords which is the case of Bosco Ntaganda. According to the Judicial Cooperation Agreement signed between the Office of the Prosecutor (OTP) and the DRC in October 2004 and cooperation mechanisms, the government of the DRC is legally obliged to arrest and surrender Bosco Ntaganda to the Court. But, the government is currently between a dilemma of protecting the fragile peace in the eastern part of DRC and fighting against impunity in DRC. Clearly, Bosco Ntaganda was awarded the position and protection of the government in exchange for his decision to join the Forces Army of the DRC together with rest of his rebel group. Indeed, the preamble of the Rome Statute that created the ICC precise that member states are “affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation; determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes; recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”. IV. Conclusion To come up to the conclusion, I am wondering if the refusal of the government of the DRC to arrest and surrender Bosco Ntaganda could put an end to the cooperation between the DRC and the ICC. In my view, as the government of the DRC had showed its good faith by arresting and surrendering three previous cases to the ICC, there is no fundamental reason to believe that is the end of cooperation even if the decision to put justice aside for peace left alleged war criminals free to continue to committing crimes. Thus, I think that the government is waiting for a good opportunity to arrest Bosco Ntaganda because there cannot be peace without justice especially 15
Coppin, A.(2008), The Case of the Prosecutor V. Bosco Ntaganda at the ICC in AMICC, Retrieved Mai 15, 2011 from http://www.amicc.org/docs/Ntaganda.pdf
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for the most crimes under international law which are fortunately “imprescriptibles� or shall not be subject to any statute of limitations as specify by the Article 29 of the Statute.
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