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.