Dear readers – please find below a commentary written by Olivia Bueno at the International Refugee Rights Initiative (IRRI) in consultation with Congolese activists.  The views and opinions expressed here do not necessarily reflect the views and opinions of IRRI or of the Open Society Justice Initiative.

On March 14, the International Criminal Court (ICC) announced its first verdict, in the case of Congolese militia leader Thomas Lubanga. While the verdict has been hailed as a milestone for international justice, it also highlighted the enormity of the continuing challenge of addressing continuing impunity for international crimes in the Democratic Republic of the Congo (DRC). A number of NGOs used the occasion to call for further investigation and prosecution of cases that cannot be addressed by the ICC, for example, through the creation of a hybrid court.

One issue that has garnered particular attention is the situation of Bosco Ntaganda. Ntaganda was accused alongside Lubanga for the role that he played in organizing the Union des Patriots Congolais (UPC) and its military wing and conscripting child soldiers. Despite the ICC arrest warrant, Ntaganda has continued to operate openly in North Kivu, where he is now a General in the DRC armed forces. Following his engagement with the UPC rebels in Ituri, Ntaganda became involved with the Congrès national pour la défense du people (CNDP), a rebel movement then under the direction of Laurent Nkunda. In 2009, Ntaganda took over control of the CNDP and signed a peace deal with the DRC government, agreeing to integrate his forces into the national army.

In research carried out by the International Refugee Rights Initiative and the Association pour la promotion et la défense de la dignité des victims (APRODIVI), with communities in Ituri it was clear that there was a demand for accountability for Ntaganda (alongside Mr Lubanga). Those interviewed expressed frustration with the lack of consistency in the government’s position which indicated an intention to get tough on impunity at the same time as justifying the refusal to hand Ntaganda over on the basis that he was critical to ensuring peace and security in the region. In the words of one activist, the failure to arrest Ntaganda so far seemed “in contradiction with [the government’s] promise to cooperate with the International Criminal Court… numerous voices continue to be raised to demand that the Congolese government fulfill its obligations to the Court.” Iturians lamented that the failure to arrest Ntaganda allowed him to continue “doing the same thing” in the Kivus. A group of United Nations experts assigned to assess mineral exploitation in the Congo have noted that Ntaganda is “directly implicated” in illegal exploitation of minerals there.

Since the Lubanga verdict, NGOs, the ICC prosecutor, and members of the international community have called for Ntaganda’s arrest. The ICC Prosecutor told the press that in the six years since the arrest warrant was issued Ntaganda had become “the leader of one of the more dangerous militias in the Kivu [provinces], allegedly committing mass rapes. He cannot be a general in the DRC army. It is time to arrest him.” The Prosecutor said that he would travel to the DRC to raise this issue directly with the Congolese government. The Prosecutor also indicated that he would seek to add additional charges to the case against Ntaganda reflecting additional crimes allegedly committed in North and South Kivu after he left the UPC.

The Prosecutor’s call was soon echoed by representatives of the international community. On a visit to DRC in late March, according to Jeune Afrique, the Belgian Minister of Foreign Affairs Didier Reynders told the media that he had raised the issue with the Congolese head of state. US Ambassador James Entwistle added his voice to the call, making the US government’s position explicit on April 5: Ntaganda should be arrested and handed over the ICC.

Although it is much more difficult to for local organizations to speak out on these issues, some have courageously done so. One such activist, Justine Bihamba Masika, according to the Observatory for the Protection of Human Rights Defenders, gave an interview to the BBC on March 15, reacting to the Lubanga verdict and calling for the arrest of Bosco Ntaganda. Following the interview, Ms. Masika reported receiving a number of threats. A Congolese professor of international law, Professor Tshibangu Kalala also weighed into the national debate arguing on Radio Okapi that if the government wished to avoid sending Ntaganda to the ICC, they should “contact the Security Council and explain to them why,” presumably in order to obtain a deferral of the case as provided for in Article 16 of the Rome Statute.

International organizations are also active. Human Rights Watch has attempted to build the case for Ntaganda’s arrest with a six minute video detailing some of the crimes which Bosco is suspected of committing after the issue of the arrest warrant against him., in particular continuing forced recruitment, rape, and a massacre at Kiwanja in which an estimated 150 persons were killed in 2008. The Enough Project also released a briefing note calling attention to Ntaganda’s ongoing crimes. This advocacy may be influencing debates in the United States Congress where legislation is being debated to allow the US government, although it is not a member of the ICC, to pay rewards for actionable intelligence leading to the arrest of suspects wanted by the Court.

Initially, the government responded to all of this pressure with its customary line of argument: Ntaganda could not be arrested because he was critical to peace in eastern Congo. She Okitundu, a former Kabila advisor, warned that “Bosco Ntaganda will be arrested sooner or later… but it is for the head of state, in the interests of the country, to decide how and when. The situation in Kivu now is explosive and the priority is to avoid a new war.” Honorable Louis Kyaviro, a parliamentarian from North Kivu, declared that Ntaganda would not be handed over because of the role that he was playing in the pacification of the region.

The UN Mission in the DRC (MONUSCO), which some activists hope might provide assistance to an arrest effort, has distanced itself. MONUSCO’s spokesperson, Madnodje Mounoubai was quoted by Radio Okapi as saying, “MONUSCO doesn’t think anything at all about the arrest of Bosco Ntaganda. It is not implicated directly or indirectly.”

Despite the rhetorical resistance of the government and the lack of enthusiasm for enforcement action from MONUSCO, the Tutsi community of North Kivu reacted strongly to calls for Ntaganda’s arrest. In a letter to the UN Secretary General, six leaders of the Tutsi community expressed concern that the focus on Ntaganda’s arrest and what it argued was the extension of Ntaganda’s presumed guilt to the entire community. The letter expresses the community’s concern that Ntaganda’s arrest could have negative consequences for the whole community.

At the same time, a number of Rwandan speaking officers in the Congolese army, including members of Ntaganda’s CNDP movement, deserted the army. Although the details remain unclear, as many as 600 may have left their posts. Some interpreted the desertions as “a simple show of force on the part of Ntaganda and not a new rebellion.”

Nevertheless, the event prompted a forceful response from Kinshasa with government forces taking some of the deserters into custody. President Kabila then travelled to Goma announcing that he would dismantle the Amani Leo military structures – the framework within which Ntaganda’s units have been collaborating in actions against Forces Démocratiques de Libération du Rwanda (FDLR) rebels. Kabila also very publicly placed Ntaganda’s arrest on the agenda, while with the same breath, however, seeming to question the role of the ICC. “We can arrest [Ntaganda] ourselves because we have 100 reasons to arrest and try him here in the country… the crimes that Bosco Ntaganda has committed in the country do not necessitate his transfer to the ICC.”

Activists, however, expressed skepticism about the significance of this announcement. As one said, “We are waiting for actions. So far, this announcement is only causing confusion.” Another claimed that he did not believe “that the President would hand him over – never… He is just trying to calm the NGOs and the international community.”

It would appear that the government has been trying to walk a narrow line, both trying to assert its authority vis-à-vis a rebellious Ntaganda and with respect to its sovereign decision making power in the face of international community pressure.

In this tense environment, a poorly executed arrest strategy could have negative consequences for security in the region and make civilians more vulnerable. Some observers have suggested that the international community should look at how to leverage regional dynamics towards ensuring an arrest. In the words of one activist, “The arrest of Bosco may respond to the same logic as that which permitted the neutralization of Laurent Nkunda in 2009, which required the cooperation of Rwanda and the DRC.”

Meanwhile, Ntaganda remains at large and is showing that he is still a force that cannot be discounted. The Congolese newspaper Le Potential has speculated that he is fomenting a new rebellion in Ituri. On April 30, it was reported that two towns in eastern Congo had fallen to troops loyal to Ntaganda.