An Opportunity for Justice in the Congo
*The author is a member of the Freedom House research staff.
The Democratic Republic of Congo (DRC) has been mired in severe instability and violent conflict since 1994, with rival militias, foreign governments’ proxy forces, and ordinary civilians clashing against a backdrop of underdeveloped social services, lucrative natural resources, and pervasive lack of government accountability. A small step forward came in 2009, when a peace agreement provided for the absorption of a major rebel group into the Congolese national army. Last month, however, the rebels’ former leader, Bosco Ntaganda, defected from the army along with hundreds of soldiers, launching a fresh rebellion and plunging the eastern DRC back into conflict. Violence between the newly baptized M23 rebel group and government forces has displaced at least 45,000 people since April 27, and there are reports that Ntaganda has returned to his past practice of forcibly recruiting child soldiers.
Ntaganda is wanted by the International Criminal Court (ICC) for this and other crimes against humanity, including persecution on ethnic grounds, rape, sexual slavery, and pillaging. Under the 2009 deal, he was made a general in the national army despite these charges by a government hesitant to disrupt a fragile peace. But since former Congolese rebel commander Thomas Lubanga was convicted at the ICC in March for using child soldiers, the Congolese leadership has faced mounting pressure to arrest Ntaganda, apparently prompting him to defect.
Some have argued that initiating charges at the ICC during ongoing conflicts only exacerbates tensions and opens to the door to retaliatory violence. In this case, the possibility that rumors of Ntaganda’s imminent arrest triggered his munity raises the question of whether justice is worth a new wave of bloodshed and displacement. If the government acts upon its legal duty to arrest Ntaganda, the inevitable conflict, with the attendant potential for continued crimes against humanity and war crimes committed by all sides, or possible military interference by a Rwanda interested in maintaining control over this strategically important region, may make the prize of his arrest not worth the price.
But peace and justice are not mutually exclusive. In fact, there can be no lasting peace until the vicious circle of impunity is broken.
Ntaganda’s apprehension is currently militarily feasible, with significant questions about safeguarding the safety of civilians notwithstanding. The Congolese army has taken advantage of M23’s relative isolation and disorganized supply lines to engage its fighters several times in the past few weeks, though government forces have yet to strike a decisive blow. Swiftly containing the M23 group, minimizing collateral damage and displacement, and arresting Ntaganda would all help to secure the government’s hold on the eastern region for the first time since 1994.
Such an arrest is also increasingly politically achievable. The recent guilty verdicts against Lubanga and former Liberian president Charles Taylor, the ongoing trials of former Ivorian president Laurent Gbagbo and former Bosnian Serb general Ratko Mladic, and renewed international interest in efforts to arrest Ugandan rebel leader Joseph Kony have propelled the influence of justice mechanisms for gross human rights abuses to an all-time high. If indeed Ntaganda rebelled last month in part to escape the ICC, it would speak volumes about the growing credibility of international justice. It stands to reason that seeing former heads of state and powerful military men in the dock could have a significant deterrent effect on warlords and despots around the world. Some whose crimes have already accumulated may dig in their heels, as Kony is doing now, but the long-term benefits of bringing prominent human rights abusers to justice will override any temporary setbacks to peace.
It remains to be seen whether the DRC government will seize this opportunity. While President Joseph Kabila has done an abrupt about-face in his public stance on Ntaganda since the mutiny, and has reportedly issued instructions to arrest the rebel leader, he has also made it clear in the past that he has no intention of sending Ntaganda to The Hague. The ICC is certainly still in an imperfect infancy, but the Congolese justice system is in no way prepared to take on a trial as fraught with inflamed ethnic and political tensions as any trial involving Ntaganda would be. Even delaying a national trial until the courts could be counted upon to withstand corrupting influences and ethnic prejudices could take years, undercutting the utility of a trial in bringing about restorative justice and a modicum of peace to a country badly in need of both. Moreover, the DRC has a legal obligation to deliver Ntaganda to the ICC. The country is a signatory to the ICC treaty, and voluntarily referred the matter to the court in 2004, thereby assuming a legal responsibility to make him available to international justice.
The stakes of the case are high. Allowing Ntaganda to remain at large or unpunished would constitute the failure of the most basic responsibility of the state to ensure the physical safety of its people. Bringing him to justice, on the international stage and in a timely manner, could create the space for sustainable peace-building to take hold. Kabila and the national army have far more demerits on their human rights record than can be erased by any single arrest, and sending Ntaganda to The Hague is not a silver bullet for peace. Yet it might just herald a newfound commitment to making decisions that could bring about a respite from decades of war and create a foundation for government accountability to the Congolese people.
Analyses and recommendations offered by the authors do not necessarily reflect those of Freedom House.