Yesterday’s internets were full of the news that Congolese President Joseph Kabila has finally stated publicly that Bosco Ntaganda should be arrested and tried for war crimes.
Ntaganda’s continued freedom, and prominent position as a general in the Congolese national army (FARDC), has been a thorn in the side of international justice advocates who want him to face trial on a 2006 ICC warrant. -Particularly for ICC Prosecutor Luis Moreno-Ocampo, who has repeatedly called on the Congolese government and/or MONUSCO to arrest Ntaganda and surrender him to the ICC. However, regional actors have been reluctant to act on these demands due to their belief that Ntaganda’s cooperation is crucial to ensuring (relative) stability in the Kivus.
A statement by Kabila that Ntaganda should stand trial is therefore big news. Events over the last couple of weeks have suggested that Ntaganda’s grip on power may be slipping. If regional powers (specifically, the Rwandan government) no longer think his cooperation is necessary for peace in the Kivus, then he may indeed be vulnerable to arrest. However, as Jason Stearns points out, it’s not clear what Kabila actually said. Although Western media are reporting it as a call for Ntaganda’s immediate capture, it may simply have been a statement that he “could be arrested by Congolese officials when the moment is right.”
Whether or not Ntaganda ends up in the dock, these developments have set off a new round of the perennial peace vs. justice debate. For advocates of justice, Ntaganda’s ability to live freely among the victims of CNDP atrocities is a clear case of unacceptable impunity. For those on the other side of the debate, his freedom is simply the price of preventing future atrocities.
A number of people, concerned about the risk of violence in the Kivus if Ntaganda gets nabbed, have asked what options the Prosecutor has for suspending the warrant. The answer is: none.
Unsurprisingly, the architecture of the international criminal law system skews heavily towards Team Justice in the peace vs. justice debate. Although the Rome Statue builds in some prosecutorial discretion regarding decisions about what cases to pursue – specifically, Article 53 allows the Prosecutor to decline to proceed with an investigation “there are substantial reasons to believe that an investigation would not serve the interests of justice” – once a warrant is issued the Prosecutor has no ability to defer to political considerations. There are, however, two other legal mechanisms that can delay or prevent an ICC prosecution once a warrant has been issued. (And, of course, the political mechanism of everybody just looking the other way and not arresting the guy.)
The first is the Article 16 Security Council deferral procedure, which can delay an ICC prosecution for renewable 1 year periods. The implication of situating this mechanism within the Council’s Chapter VII powers is that it applies only when a prosecution represents a threat to the peace.
The second is the preemption of ICC prosecution by a domestic trial, which I’ve explained previously. (This one actually underscores how little power the Prosecutor has to defer to politics after the issuance of warrants. In the case of Saif al-Gaddafi, we’ve seen Moreno-Ocampo support Libya’s new government’s efforts to preempt the ICC prosecution, only to get slapped down by the Pre-Trial Chamber.)
Either of these mechanisms could potentially be utilized in the Ntaganda case, however, it’s not clear that they would actually help with the peace vs. justice conundrum.
The Security Council deferral mechanism only delays the process; it doesn’t lift the warrant, so whatever incentives a looming threat of prosecution creates to retain the ability to spoil peace would persist. And preempting ICC jurisdiction through a domestic proceeding would require the Congolese authorities to try Ntaganda under conditions that meet international fair trial standards (i.e. no indefinite detention, no secretive military tribunal). Such a process is therefore likely to be at least as disruptive to the peace as an ICC prosecution.
Given the other choices on the table, the selection (so far) of the “let him wander around Goma, profiting off of everything in sight” option starts to look a bit more understandable…