IJCentral: International Justice Central

By Mac McClelland for Mother Jones, September/October Issue

He dines at the finest restaurants. He’s a leading military official. He owns a bar, a dairy farm, and a pretty mansion. And the International Criminal Court has a warrant for his arrest. So why isn’t Bosco Ntaganda in jail?

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BOSCO NTAGANDA LOVES A DINNER PARTY. Hell, even a brunch party. And pretty much any time of day is perfect at Le Chalet, Goma’s premier restaurant, where the inside is all slate floors and licheche-wood furniture and Latin jazz, and outside tables dot a manicured lawn that slopes down to Lake Kivu. It has what may be the best selection of booze—Blue Label, pastis, whatever you like—in this provincial capital in eastern Democratic Republic of the Congo. The chicken samosas in curry sauce with pineapple are delightful. And Bosco, a man about town who owns the bar Kivu Light and the Bunyole cheesery, is a fixture here, enough that the first time I walk in, someone says casually, “Oh! You just missed Bosco.”

That’s why one Congolese driver told me he couldn’t take me around Goma because he would be killed the moment I left. That’s why my Congolese sources stay out of nice restaurants, stay out of the city if they can, and when they have to flee the country, they don’t tell their families where they’ve gone or why. That’s why one guy I meet wears a light disguise whenever he goes out (“Oh hey!” an old friend says after initially walking right past him. “I didn’t recognize you!”): Because recently, Bosco tried to kill him.

That’s not included in the official indictment against Bosco. The warrant the International Criminal Court issued for his arrest on August 22, 2006, charged him only with the war crimes of enlisting, conscripting, and using child soldiers back when he was head of military operations for a rebel militia in the early 2000s. These days, he’s technically legit, wearing the uniform of a general in the national Congolese army. In 2009, a peace deal between Congo and Rwanda folded in the Rwandan-backed Congolese militia he headed, the National Congress for the Defense of the People (CNDP), which frankly was kicking the national army’s ass. Both before and since, the ICC and the United Nations and watchdogs like Human Rights Watch have continued to catalog further atrocities he’s alleged to have ordered or participated in: 800 civilians massacred in one town in the Ituri district in 2002; 150 civilians massacred in North Kivu province in 2008; ongoing assassinations and disappearances; ongoing conscription of child soldiers, the very crime he was indicted for. Etcetera.

And that’s why everyone in this dusty, volcano-fringed capital (PDF) talks like spies. “It’s probably best you keep your voice down everywhere all the time while you’re here,” an American aid worker says the moment we meet. “They have people working everywhere,” a Congolese guy tells me, specifically referring to waiters who eavesdrop at bars, saying that when they do you can’t leave because it will look suspicious, so you have to always pretend like you don’t suspect them, so they won’t in turn suspect you. Ex-CNDP soldiers loyal to Bosco are armed and prevalent, in this town of 500,000 and beyond. Consider: This year, when Bosco was implicated in selling $20 million in gold for $7 million in cash to a shady Texas diamond dealer, a Frenchman, and two Nigerians, the regional military spokesperson said it looked like Bosco was smuggling, but really he was just pretending to smuggle to thwart the smugglers. It’s all part of the reason why you’ve never heard of Bosco, why detailed stories about atrocity-witnessing and near escapes and car chases can’t be told for the sake of protecting sources. You wouldn’t believe the opening we had to cut from this piece. It was about a guy who wanted to tell his story to the world in hopes it would change the “hell” he lives in. But then he was cornered by a soldier who reminded him that it’s awfully easy to get killed around here.

So. Take instead what happened to an American filmmaker, now safe at home. Earlier this year, he took it upon himself to shoot mining operations in Goma’s province, North Kivu. Here’s the thing about that: In 2010, President Joseph Kabila temporarily banned mining in this province and two others, on account of armed groups controlling the mines; an estimated 80 percent of what is mined in Congo is smuggled out, a lot of it from this area on the border with Rwanda. And indeed, there, running the mine, were officers from the CNDP—sorry, ex-CNDP, since they’ve technically been integrated into the national army and technically don’t operate for their own profit anymore—wearing CNDP uniforms. They were overseeing workers loading coltan (used in consumer electronics) into produce trucks. There, getting it all on camera, the American filmmaker got caught.

He managed to escape, but word spread through the command, back to Goma, when he returned. “Soldiers followed me all over town,” he says, until he fled to another country. And they didn’t even know he also filmed those women who were raped, and people who were shot by ex-CNDP soldiers now in the national army! His last day in Goma, the filmmaker pushed the furniture in his hotel room up against the door, passing the night barricaded behind it, sleepless, with his eyes wide open and a knife in his hand.

He was lucky. “Even if you have a gun, it doesn’t mean you cannot die,” one Congolese source told me. “You cannot stop them from killing you.”

Some 4,000 miles away from North Kivu, the International Criminal Court sits in a tall, drab office block rising up against seemingly ever-cloudy Dutch skies. The building at Maanweg 174, The Hague, was previously occupied by a telephone company. Proceedings against warlords take place in three low rooms built into the former parking garage.

The court is slated to get its new digs in 2015; these are the temporary offices of the fledgling institution, which was established in 2002. That’s when the requisite 60 countries ratified the treaty that created it, four years after the 1998 UN Conference of Plenipotentiaries on the Establishment of an International Criminal Court—which itself had been years in the making—brought 160 governments together to spend a month fighting out the terms. Not everyone agreed that such a court should exist at all. Leading the haters was the United States, which had grave objections to “an arrangement whereby US armed forces operating overseas could be conceivably prosecuted by the international court.” But in a decade that saw a couple of high-profile genocides, justice was an especially pressing ideal. As the head of the US delegation summed it up to the Senate Foreign Relations Committee afterward, the goal was “accountability, namely to help bring the perpetrators of genocide, crimes against humanity, and war crimes to justice,” via “creating a permanent court that could be more quickly available for investigations and prosecutions and more cost-efficient in its operation.” Supporters wanted to make international justice swifter than the infamously tardy International Criminal Tribunal for Rwanda, and cheaper than the $1.9 billion, still-ongoing International Criminal Tribunal for the former Yugoslavia.

The delegates decided that there would be three roads to prosecution: A case could be referred to the ICC by a member state; crimes could be referred to the court by the UN Security Council; or the Office of the Prosecutor could launch an investigation on its own. (Well, not all the delegates decided that. The United States—along with China, Iraq, Israel, Libya, Qatar, and Yemen—voted against the treaty. The US later signed but did not ratify it.) If an ICC investigation finds war crimes, crimes against humanity, or genocide, and the state in which the crimes occur is unwilling or unable to prosecute the case itself, the “court of last resort” can issue warrants of arrest or summonses to appear.

On this early April day, there are two trials in session—both of Congolese former rebel leaders. Thomas Lubanga Dyilo stands accused of conscripting, enlisting, and using child soldiers in Congo. Jean-Pierre Bemba Gombo was arrested for multiple war crimes and crimes against humanity, including rape, torture, and pillaging in the Central African Republic. In the case of Lubanga, today’s testimony is too sensitive to be opened to the public—maybe a witness who’s in particular danger of retribution. But anyone can observe Bemba’s trial (PDF). Between the two prosecutors on the right, two defense lawyers on the left, and three judges sitting center, there are a lot of black robes in the room. Observers listen to testimony via a UN-style translation system. Bemba’s in a suit under guard in the corner; the witness chair is oriented so he can’t look squarely at the person testifying. I know Bemba came to check out his troops, the witness is saying. He knew what his troops were doing. The witness is kind of worked up. The soldiers were raping and looting, he’s saying. Bemba must have known what was happening. For his part, Bemba has got his cantaloupe head sunk into burly shoulders. He’s looking impassive, sometimes taking notes, licking his fingers to turn the page, flicking his eyes again and again toward the observation gallery just a few feet away, but refusing to meet anyone’s gaze.

Upstairs, Chief Prosecutor Luis Moreno-Ocampo has his sleeves rolled up behind the desk of his expansive office on the 11th floor. In the ‘80s, he prosecuted mass-murdering military commanders in his native Argentina. In the late ‘90s, he was the star of an Argentine show very much like Judge Judy. He’s grayer now, but still brash and deep-voiced and having an answer for everything. And, for a guy who spends all of his time thinking about war crimes, he has some very happy things to say.

“We are building a new global system,” he informs me. He says the idea that so many countries came together to build this court is insane. The fact that they managed to arrest someone is ridiculous. That they had a first trial was “impossible.” And now, the world is getting smaller. Technology is bringing us closer. Facebook, goddammit. “Cambodia was ignored. Nothing happened. Darfur was not ignored, but took two years to react. Libya? Ten days. Ten days. Bam. And the Security Council, immediately, without hesitation: ‘Refer the case to the ICC.’ Now we’re normal.” He tells me about an Australian fighter pilot who wouldn’t drop a bomb in Iraq because he was afraid of someday being prosecuted. He says a legal adviser told NATO commanders to watch the orders they sign so they don’t end up retiring on the beach only to be surrounded by cops ready to drag them to The Hague. Nepal, he says, demobilized 3,000 child soldiers because of the ICC.

“The court’s existence is important. The message is pretty strong: You cannot commit massive atrocities to remain in power or to gain power,” Moreno-Ocampo says. In the case of Bemba, his arrest probably did teach warlords a lesson about whether they can retire or vacay in Europe, as he was snatched by Belgian authorities while comfortably ensconced in Brussels. Although 44 UN member states have still not signed the Rome Statute, the ICC has 700 staff members from 75 countries. The more countries that are on board, the more the world manages to “create one community called humanity,” the more effective the court can be. “Everything is changing in the world. We can do it.”

Moreno-Ocampo has sunk 10 years of his life into the ICC, separated from his home and his own life and his family. Because “it’s the best job in the world.” Because “I love this mission, to save the world.” Also: “It suits my megalomania.”

That makes him well suited to weather scathing criticism, and does the ICC ever have its share. Those who say that issuing arrest warrants for war criminals still in the throes of warmongering—as in the case of Sudanese president Omar al-Bashir—complicates the peace process and could even incite more violence. Those who complain that the court only goes after Africans, which so far has been true. That the first trial, Lubanga’s, has had disastrous flaws, including the prosecution’s failing to share key documents with the defense. That as an independent court, accountable to no other body, the ICC operates with impunity.

But the issue that could most undermine the very purpose of the court’s existence is its difficulty executing arrest warrants. As a court representative will explain if you sign up for an ICC visitor’s tour, “We don’t have a police force. So when it comes to enforcing our warrants, we rely on state parties.” That means countries that have ratified the treaty, like Congo; all of them are technically obligated to arrest indicted criminals on their soil. Yet out of 26 people for whom warrants and summonses have been issued, 10 of the alleged criminals remain at large. None of the three outstanding warrants (PDF) against Ugandans have been enforced, even though Uganda is an ICC party—but that’s because, the tour guide offers as explanation, the guys are hiding in the no man’s land near the border between Congo and the Central African Republic. When Sudanese President Bashir flew from (non-member-party) Sudan to (member-party) Kenya, he should have been arrested; if he goes into international airspace again, the rep asserts, he will be.

I ask Moreno-Ocampo if it’s only a matter of time for Bosco Ntaganda, too. “Yeah,” he says. “In fact, it is difficult to arrest Bashir, I understand, but it’s not difficult to arrest Bosco. There is no excuse not to arrest Bosco. And he’s committing massive crimes in the DRC.”
This is the part of a paragraph that would usually contain a description of a room, in a (adjective here) building on (this kind of) a street. But I can’t write about any of that. Nor could I bring any Congolese translators along to this interview—the risks to them and the witnesses would have been too great. So I’ve dragged a 22-year-old Columbia University student and fluent French speaker named Joey from the United States.

Joey and I are at the indescribable place to hear a story. It’s about Lt. Colonel Antoine Balibuno, a colleague of Lt. Colonel Innocent Zimurinda, a terrifying Bosco crony who’s been sanctioned by the UN for raping “a large number” of women and girls and murdering a lot of refugees and his own child soldiers. In 2009, Balibuno and Zimurinda were together in Masisi, a few hours from Goma, under Bosco’s command. But Balibuno and Zimurinda had also been integrated into the national army, deployed to the region officially. Not so lucrative a position, working for the broke army of a failed state. Masisi had a lot of trees. Balibuno told friends that Zimurinda enslaved the locals, making them cut down trees, morning and night, to make boards the ex-CNDP could sell. Balibuno said those who resisted were immediately killed. Balibuno said Zimurinda, a Tutsi, was also killing random Hutus. After a while, Balibuno returned to Goma, claiming he didn’t want to be associated with any Bosco-related carnage and corruption in case Bosco took his colonels down with him if he ever did get arrested.

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