Bosco Ntaganda is in custody, but what does this say for the International Criminal Court? | Sarah Morrissey

SarahM1In June 1998 the United Nations General Assembly convened a diplomatic conference at which the world’s nations came together and agreed to establish an International Criminal Court (ICC). In July 1998 the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. Within four years the Statute came into force following ratification by 60 countries in April 2002 and the Court was set up at The Hague. In July 2005 the Court issued its first arrest warrants and its first pre-trial hearings took place in 2006. Last year, as the Court celebrated its ten year anniversary, issuing its first conviction against Thomas Lubanga. Lubanga’s conviction for the war crimes of enlisting and conscripting child soldiers, while welcome, raised a number of questions about the success of the Court. Ten years and millions of euro later the Court had successfully convicted one man. Other trials and investigations were and continue to be on-going but other subjects of ICC arrest warrants were and continue to roam free, some in very open fashion. Up until March 18th, among these seemingly sheltered and protected fugitives was Bosco Ntaganda.

Bosco Ntaganda, an ethnic Tutsi, was born in Rwanda but grew up in Congo. He was involved in the overthrow of the Hutu led government in Rwanda following the 1994 genocide and since then he has been part of various armed rebel groups in the conflict along the Rwandan and Congo border. As a result of peace deals granting army positions to rebel leaders Ntaganda has also served in the Congolese national army (FARDC). In August 2006 the ICC issued an arrest warrant for Ntaganda for war crimes. However, Congo ignored the warrant appearing to consider Ntaganda necessary for brokering peace. Instead of turning Ntaganda in to the ICC Ntaganda was appointed second-in-command of the FARDC in eastern Congo in the last round of peace deals in 2009. However, on March 18th Ntaganda’s apparent impunity came to an end.

Omar al-Bashir

On March 18th Ntaganda became the first indictee of the ICC to surrender himself to the Court. Many claim this marks a success of the ICC. In the last year Ntaganda was involved in a mutiny involving the newly established M23 forces. Just a few weeks ago these forces became divided and Ntaganda seemed

to lose control over his troops. There is speculation that there would not have been a place for him in the next round of peace agreements with the Congolese government. In addition, Ntaganda is considered to possess sensitive information involving the Rwandan government of the nature that would classify him as a threat. It is thought that Ntaganda could shed light on Rwanda’s role in the conflict in eastern Congo. Last year UN experts accused the Rwandan government of supporting Ntaganda and the M23 in Congo. Rwanda denied the claims but the accusations resulted in the withdrawal of significant aid. Up until this year such aid amounted to 35% of the Rwandan budget. It is possible that Ntaganda no longer felt safe in either Congo or Rwanda. Thus, Ntaganda’s safest option may have been to surrender to the ICC. In that context, should his surrender be considered a success for the ICC?

As a result of Ntaganda’s surrender the most wanted warlord in Africa has been removed from action. Was it not for the ICC’s existence Ntaganda may have continued fighting to the very end racking up even more international crimes to add to his current list of war crime charges. Now that the ICC can serve justice on a dangerous and ruthless warlord, Rwanda has an opportunity to recover its aid and international reputation and peace in the Congo has overcome one more obstacle. But Ntaganda’s surrender and subsequent transfer to the ICC on March 22nd raises several questions (not least about the security at the US embassy in Rwanda) and reveals a lot about the ICC’s place in the international legal realm.

Neither Rwanda nor the US is party to the Rome Statute. Thus neither of them was bound to deliver Ntaganda to the ICC, despite his request. Even if one of them was willing, the task would prove impossible without the other state’s co-operation as Ntaganda surrendered at the US Embassy, thus he was on US territory. In order to be transferred to The Hague he had to travel through Rwanda to reach the airport. The question on everyone’s lips on March 18th was: would the countries co-operate? This question was of particular significance in relation to Rwanda. As a result of the speculation that Ntaganda possesses sensitive information on the Rwandan government it was thought that Rwanda may prefer to deal with the warlord themselves. However, on March 22nd Ntaganda was successfully transferred from the US Embassy in Kigali to The Hague. This is welcome news as UN special envoy to the Great Lakes region, Mary Robinson, began her role (coincidentally on March 18th) by urging co-operation with the ICC. This co-operation by non-party states with the ICC also points to the success of the ICC as an international institution.

The ICC may not be perfect. President Omar al Bashir of the Sudan, in respect of whom an arrest warrant was issued in 2009 still reigns in the Sudan and travels beyond its borders to meet other international leaders, some of whom represent states signed up to the Rome Statute. But the actions of the US and Rwanda highlight the central and established role the ICC has forged for itself in international law. It has begun to establish norms and procedures which, while not always effective, when respected can take one of the most dangerous human beings on the planet out of the battle field. No doubt Ntaganda’s surrender has prevented some blood from spilling, just as Lubanga’s arrest and conviction did. People will no doubt ask: is that enough? For the time and money and resources invested in the ICC, are one conviction and the removal of Ntaganda from the battle ground enough? And no, it is not enough. But that doesn’t mean we should give up on the institution. Ntaganda’s surrender is showing us the potential of the ICC and why we should, not just as individuals and a country, but as an international community, get behind the Court – fully and completely.

If you were to have been involved in international criminal law in 1998 and had attended the Rome Conference which established the ICC, you would appreciate how far the ICC has come. Nobody in Rome expected the Court to have been established with 122 state parties by 2013, not alone have issued its first conviction by 2012. The Court can exceed our expectations over the next ten years too. The co-operation of the US and Rwanda as non-parties to the Court’s jurisdiction reveal that the Court has influence even when its statute is not signed up to. Of even more importance is the message this co-operation sends to other indictees. Ntaganda’s surrender demonstrates that ICC indictees are aware of their wanted status whether they live as though they are or not. His surrender highlights to other international criminals that there is an international system that offers them due process. And in the context of those that live and travel as if immune from the Court’s jurisdiction, Ntaganda’s surrender and transfer highlights that just because a country has not signed up to the ICC does not mean you are safe from the ICC’s jurisdiction and the reach of the international community – any nation at any time can decide they don’t need you, as is speculated happened between Rwanda and Ntaganda, and then you will be answerable for your crimes.

Of course, this is a rather positive approach and people will point out that the Court is still very much restricted by the wills and whims of individual nations, but Ntaganda’s surrender illustrates that the international community, when acting en masse, has the power to influence the wills and whims of the most powerful nations and the nations with the most to lose – and that is surely something worth enhancing, even if it takes many more UN special envoys and several decades to perfect.