Video Evidence Links ICC Fugitive to New Crimes in the DRC

A recent video available on the New York Times website shows Bosco Ntaganda leading rebel troops into the village of Kiwanja on the day over 150 civilians were massacred there. Mr. Ntaganda, alias the “Terminator,” is presently the military chief of staff of the Congrès National pour la Défense du Peuple (CNDP) whose leader is General Laurent Nkunda. Most observers, including Human Rights Watch and the civilian victims themselves, blame the CNDP for most of the atrocities that took place in Kiwanja on November 4-5, 2008. In the same New York Times video, Gen. Nkunda denies responsibility and offers an unconvincing alibi - that his troops were in control of the town the days before and after the attack, but left the town on the particular day the attack occurred. The video evidence proves otherwise and constitutes a substantial piece of evidence linking Mr. Ntaganda – and through chain of command General Nkunda – to fresh crimes against humanity committed in the Democratic Republic of the Congo (DRC).

Mr. Ntaganda, a Rwandan citizen, was formerly a commander in the Forces Patriotiques pour la Libération du Congo (FPLC), the military wing of a political party named the Union des Patriotes Congolais (UPC). It was for his role in recruiting child soldiers for the UPC that the International Criminal Court issued a warrant for his arrest in 2006. Mr. Ntaganda has since left the FPLC/UPC and has joined General Nkunda’s men who have become an increasingly powerful rebel force in the Eastern DRC. Numerous sources have predicted General Nkunda will be the next target of an arrest warrant from the International Criminal Court, given the ICC Prosecutor’s November 4, 2008 press release noting that his office has jurisdiction over crimes in the Kivus, as well as Nkunda’s growing notoriety domestically and abroad, for his responsibility in committing mass atrocities in the Eastern DRC.

It is precisely the chain of command linking General Nkunda and Mr. Ntaganda that makes this video evidence potentially damaging to both these men. For one, the video helps show Mr. Ntaganda’s involvement in the crimes in Kiwanja as a CNDP commander, and could implicate him as a direct perpetrator or for ordering his troops to commit crimes. Secondly, the video implicates General Nkunda through the doctrine of superior responsibility, presuming that Nkunda had command and control over his troops at the time the massacre occurred. Of course, the brief video on its own is insufficient to prove anyone’s guilt. In combination with other substantive evidence, however, the video could help hold those responsible for the massacres at Kiwanja. Linking a suspect to the scene of a crime on the day the crime took place is a valuable piece of evidence for any prosecutor.

Despite its significant evidentiary value, the New York Times video is disturbing for the same reasons for which it could be valuable. It directly links to new crimes against humanity one of the few persons on the earth for whom the ICC has issued an arrest warrant. As such, the video deals a direct blow to the idea that ICC warrants deter suspects from committing new crimes. One of the founding ideals of the ICC, as demonstrated in the Preamble of the Rome Statute, was its ability to use the threat of criminal punishment to prevent or deter persons from committing war crimes, crimes against humanity, and genocide. It is possible that such a deterrent effect was meant primarily for those who have yet to commit crimes, and not for those like Mr. Ntaganda who have already been charged with serious crimes that could carry a substantial prison sentence, and thus have “nothing to lose” in committing new crimes.

Ultimately, the video evidence is a good thing. Despite the disturbing trends the video indicates, with respect to both the ongoing attacks against civilians and the inability of the international community to reign in such abuses, the video could serve as primary evidence linking Mr. Ntaganda to subsequent crimes should he ever be tried before the ICC. While some may argue that Mr. Ntaganda should not be punished for these crimes because his arrest warrant only includes crimes from before 2006, the Prosecutor could easily amend the charges against Mr. Ntaganda to include these most recent attacks, and the Rome Statute clearly provides for such an amendment in article 58(6). Instead, the largest obstacle will likely be in arresting Mr. Ntaganda – a task that either the DRC, MONUC, or any neighboring state where Mr. Ntaganda happens to visit - must execute in order to bring some relief to the civilians in this war torn region.

-Nick Leddy
Washington, D.C.

ICC Faces Deferral of al-Bashir Prosecution

On December 3, 2008, Chief Prosecutor of the International Criminal Court Luis Moreno-Ocampo briefed the 15-member United Nations Security Council on the situation in Darfur and urged the members to resist calls to defer investigation and prosecution of Sudanese President Omar Hassan al-Bashir under Article 16 of the Rome Statute. ICC Judges are expected to rule within a month whether to issue an arrest warrant for al-Bashir, as requested by Moreno-Ocampo in July of this year. The United States, however, has promised to block any delay absent significant humanitarian assurances.

Article 16 provides little guidance on the conditions that warrant such a deferral, but merely states, "No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions." According to a Washington Post article, al-Bashir has persuaded the Arab League and the African Union to invoke Article 16. The Sudan Tribune reported in August 2008 that China and Russia would support such a deferral.

Moreno-Ocampo has accused al-Bashir of massive attacks against Darfur's ethnic Fur, Masalit, and Zaghawa, resulting in 35,000 deaths and 2.5 million displaced individuals. In his pleas to the Security Council, Moreno-Ocampo emphasized al-Bashir's role in ordering and then covering up these crimes. According to Moreno-Ocampo, al-Bashir used diplomacy to protect himself and other criminals, promising to dismantle Janjaweed militias and then failing to uphold that promise for the reserve forces; promising justice and then engaging in torture against those who could be witnesses; and promising ceasefires and then bombing schools. Moreno-Ocampo emphasized that "the international community cannot conceal [al Bashir's] crimes [genocide, crimes against humanity, and war crimes]."

For more information, see "Today's News: ICC Prosecutor says ruling on President Omar Al Bashir is imminent" and other links at the United Nations Radio web site, as well as "Sudan's Omar al-Bashir: a useful war criminal."

Hamdan Returns to Yemen: A New Beginning?

On November 26, 2008, the U.S. government transferred Salim Ahmed Hamdan, Osama bin Laden's former driver and bodyguard, to Yemen to serve the remainder of his 66-month prison sentence for providing material support for terrorism. The decision to transfer Hamdan follows a jury trial before Military Judge Keith J. Allred in August 2008. During the trial, the U.S. government argued for a 30-year sentence, and stated that a life sentence would be appropriate. According to the New York Times, one prosecutor stated, "Your sentence should say the United States will hunt you down and give you a harsh but appropriate sentence if you provide material support for terrorism." On October 29, 2008, Military Judge Allred, in a brief Ruling on Motion for Reconsideration and Resentencing, refused the government's request that it reconsider its decision to credit Hamdan for 61 months served at Guantánamo before trial.

Despite the Supreme Court's rulings in Rasul v. Bush (holding that U.S. courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with the war on terror and held at Guantánamo), Hamdi v. Rumsfeld (holding that due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker), Hamdan v. Rumsfeld (holding that Combatant Status Review Tribunals lack the power to proceed because their structure and procedures violate both the UCMJ and the Geneva Conventions), and Boumediene v. Bush (upholding the habeas corpus rights of Guantánamo detainees and holding that Combatant Status Review Tribunals are an inadequate substitute for habeas review), the U.S. government maintains that it has the authority to detain so-called enemy combatants - and even individuals who are not enemy combatants - indefinitely. 

Colonel Lawrence Morris, the Pentagon's lead prosecutor, stated that the government will consider certain factors when considering transfer of a detainee overseas, according to the Washington Post. "The critical factor is that they are held accountable for their conduct and that they are disabled for the appropriate time period from their involvement in terrorism. When out leaders evaluate whether to return them somewhere that is foremost in their mind, and they would not return them unless they were satisfied on both fronts." It is unclear why the U.S. government, which sought a 30-year sentence for Hamdan and fought against Military Judge Allred's application of a credit for time served, would now believe that Hamdan will be "disabled for the appropriate time period from [his] involvement in terrorism." Perhaps, the U.S. government has transferred Hamdan to Yemen to avoid complicated questions that are sure to arise, such as whether to close Guantánamo and how to handle the release of detainees. In addition, keeping released Guantánamo detainees out of the United States avoids a PR nightmare related to the U.S. government's manufactured legal scheme in the "war on terror."

Hamdan is scheduled for release from a Yemeni prison on December 27, 2008.  Approximately 100 individuals still held at Guantánamo are of Yemeni nationality. For more information on the Yemeni rehabilitation program for terrorists, see "Terrorists in Rehab."

Attacks in Mumbai

For more information on the attacks in Mumbai, see 

• Andy Barr, Politico, "Bush on Mumbai: Nothing but violence and hopelessness"; 
• BBC News, "Officials quit over India attacks"; 
• Mark Magnier, LA Times, "Mumbai residents try to return to routines"; 
• Damien McElroy, Telegraph, "Mumbai attacks: U.S. Intelligence warned India a strike from Pakistani group was planned";
• Bill Roggio, The Long War Journal "Captured Mumbai attacker implicates Pakistani military, intel"; 
• Matthew Weaver, Guardian, "Mumbai Attacks: 'It's war' declares Indian press."