DEVELOPMENTS

On January 23rd, justice caught up to Congolese warlord General Laurent Nkunda.  The leader of the Tutsi militia which caused nearly 200,000 deaths in the North Kivu province of the Democratic Republic of Congo (DRC), was arrested by Rwandan soldiers, some of which were former allies. Nkunda joins other African warlords including Charles Taylor, Thomas Lubanga and Jean-Pierre Bemba, now in custody. The United Nations and Western countries request that these and other war criminals face justice at the International Criminal Court (ICC).

In recent months, a number of warrants, arrests, and prosecutions have provided African countries with an opportunity to test the international criminal legal regime.  But these countries still retain the option of prosecuting the captured domestically, and this choice introduces new challenges. Where should they be prosecuted if their atrocities were committed in multiple countries? What remedy will their prosecution provide to victims?  How should their trials be conducted without emboldening their loyalists?  Should kidnapped child soldiers be given amnesty in all cases? Answers to these questions must weigh the interests of justice and peace, a challenge made more difficult when the two seem incompatible.

BACKGROUND

General Nkunda was regarded as guardian of the Congolese Tutsi people in the aftermath of the 1994 Rwandan genocide in which 800,000 Tutsis were murdered by Hutu militas. Although Nkunda is Congolese, he declared in 2005 that the DRC government was corrupt and subsequently pledged his allegiance to the Rwandan-backed Rally for Congolese Democracy (RCD). Until recently he had the support of the Tutsi-led Rwandan government. But in October 2008, the schoolteacher turned militia-leader led a brutal rebel offensive against civilians in North Kivu. Human Rights Watch reports that General Nkunda committed war crimes and human rights abuses by ordering summary executions, torture and rape.

International pressure on Rwandan President Kagame to reign in Nkunda reached its peak this month.  Rather than continue to support Nkunda, Kagame sent 4,000 Rwandan troops to the Congo to capture his former ally. Nkunda is currently being detained somewhere in Rwanda, but the Congolese government has requested his extradition to try him before a Congolese military.  But the Rwandan president has not indicated whether he plans to hand Nkunda over to the DRC.  To date, there is no evidence that the Rwandan and Congolese government have come to any agreement over what to do with Nkunda.  In the meantime, Tutsi protesters in Rwanda are calling for Nkunda’s release while international NGOs, like Amnesty International, demand that Nkunda be prosecuted by the ICC. President Kagame must decide what to do with Nkunda, knowing that the wrong decision could destabilize the region.  If Kagame releases Nkunda, Rwanda will likely lose credibility and international standing.  If he decides to detain the general indefinitely, Kagame will exacerbate an already tense relationship with the DRC.  And even if the Rwandan government sought to turn Nkunda over to the ICC (which may be an option in the near future) protest by Nkunda supporters could grow violent and embolden Nkunda’s supporters.

The Ugandan government faces a similar situation with Lord’s Resistance Army (LRA) leader Joseph Kony.  Kony has led the LRA to commit brutal attacks on the Acholi people of northern Uganda.  He has allegedly kidnapped thousands of children to serve as soldiers in the LRA, some of which were forced to murder their parents.  For the time being Kony has been hiding in Garamba National Park in eastern DRC.  The ICC issued a warrant for Kony’s arrest in 2005, but without a police or military force of their own, the ICC has no way of capturing him.  Ugandan President Museveni has even considered bargaining with Kony to get him surrender.  Last summer’s Peace and Reconciliation deal would have permitted Kony to escape ICC prosecution in return for surrendering to the Ugandan authorities and submitting to traditional justice mechanisms.  Whether it is worth it to sacrifice justice for peace is up to the Ugandan president to decide, but leaders in Rwanda and DRC will be watching closely to learn from his success or failure.

ANALYSIS

International law outlines fundamental human rights and establishes a judicial system for those who violate those rights in the form of international tribunals.  The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) are two recent examples of high profile tribunals investigating war crimes, crimes against humanity and genocide. But these tribunals are not responsible for piecing the victim countries back together.  Post-conflict resolution and political reconciliation are problems for state governments to solve on their own and international law gives little guidance in that respect. 

In 2009, a growing number of African countries will have to determine what to do with their captured warlords and human rights abusers. As the trials of Liberia’s former President Charles Taylor and Thomas Lubanga (another Congolese warlord and the first person to stand trial before the ICC) continue, information will come to light which will undoubtedly lead to more warrants, arrests and prosecution. While government leaders in the DRC, Uganda, and Rwanda wrestle with these decisions, Sudan may also join the group, as the ICC prosecutor will likely issue a warrant for Sudanese President Omar al-Bashir before the year’s end.  Even among these warring countries, cooperation could yield a model that fosters lasting peace while holding accountable perpetrators of the worst human rights abuses.

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