The End of the M23, Will Justice Follow?

In the last few days, we have witnessed some important and welcome developments in eastern Democratic Republic of Congo (DRC)—a region of the world in desperate need of some good news.  Notably, the M23 rebel group—so named after its founders determined that the government had breached the May 23, 2009, peace agreement that was supposed to provide for the rebels’ integration in to the armed forces (the FARDC) and amnesty from prosecution—has reportedly laid down its arms after a series of battlefield defeats.  This demise comes on the heels of a massive schism in the movement that was created when ICC-indictee Bosco Ntaganda fled DRC into Rwanda with 400 loyal fighters after he was routed by forces controlled by rival Sultani Makenga and after Rwanda reduced its support of the group in the face of concerted international pressure.  As is now well-known, Ntaganda eventually turned himself in to the U.S. embassy in April 2013 and was transported to The Hague in an ICC-chartered plane.

With Ntaganda’s surrender, all but one of the ICC DRC defendants is in custody, in trial, or pursuing an appeal. Thomas Lubanga Dyilo was found guilty in March 2012 and is now appealing the verdict and sentence.  Germain Katanga’s trial concluded in May 2012, but the parties continue to litigate a potential change in the charged mode of liability in the case (from indirect co-perpetration to common purpose).  Trial Chamber II acquitted his co-accused, Mathieu Ngudjolo Chui, and the Prosecutor has appealed.  The charges against Callixte Mbarushimana, a principal in the Forces Démocratiques pour la Libération du Rwanda (FDLR) who was arrested by French authorities in France in October 2010, were not confirmed.  The hearing on the confirmation of charges against Ntaganda will be held in February 2014.

Sylvestre Mudacumura, a commander in the Hutu-dominated FDLR, is the lone Congolese fugitive.  The FDLR is composed of ex-génocidaires who fled Rwanda when the Rwandan Patriotic Front (RPF) assumed control of the country following the 1994 genocide.  It has been embattled with the M23 movement, which itself has received support from Rwanda as a proxy force against the FDLR, and other rebel groups in the region.  With the demise of the M23, the FDLR’s fate remains uncertain.  Mudacumura himself is reportedly billeted somewhere in eastern DRC.  There are rumors that he may be injured or ill.  So far, other suggestions that he might be negotiating his surrender have not come to pass. Whatever his circumstances, it cannot be gainsaid that his presence in the region is a source of continued regional instability, and the Security Council has called expressly for his arrest.

The situation in the DRC benefits from a Security Council peacekeeping mandate that is the most robust yet when it comes to the capture of fugitives.  When the Security Council renewed the mandate of the UN Organization Stabilization Mission in the DRC (MONUSCO) in 2013, it created an Intervention Brigade (IB) at the recommendation of the International Conference on the Great Lakes Region (ICGLR) and the Southern African Development Community (SADC) to address the continued instability and threat posed by numerous armed groups (including the FDLR, M23, LRA, and various local and loosely connected Mai Mai groups) in the region.  Resolution 2098 of 2013 included language indicating that MONUSCO may “take all necessary measures” to protect civilians, neutralize armed groups through the IB, and

support and work with the Government of the DRC to arrest and bring to justice those responsible for war crimes and crimes against humanity in the country, including through cooperation with States of the region and the ICC.

The resolution also requests the Government of the DRC to arrest and hold accountable those responsible for international crimes, including Mudacumura, in cooperation with the ICC.  This mandate is a far cry from the days when the NATO-led Stabilization Force (SFOR) in Bosnia-Herzegovina insisted that capturing war criminals from the war in the former Yugoslavia—even though indicted by an international tribunal enjoying a Chapter VII provenance—fell outside of their mandate and institutional competency.  Similar language now appears in the mandate of the peacekeeping force deployed in Mali—the UN Multidimensional Integrated Stabilization Mission in Mali (MINUSMA)—also an ICC situation country following the government’s self-referral to the Court.

In the event that Mudacumura retains some freedom of movement, he may undertake the same calculus as his compatriot, Ntaganda, who found himself in a country with its own axe to grind against him in light of his involvement in the FDLR.  Ntaganda obviously decided that facing charges before the ICC was a safer bet than the fate that might otherwise befall him.  The fact that the United States had recently authorized the payment of a reward for information leading to Ntaganda’s arrest under its War Crimes Rewards Program, a development that had not yet been made public but had been leaked to the press, may have played a role in his decision to turn himself in on his own terms, rather than on the terms of a would-be reward-seeker.  Because Mudacumura, who is also subject to a reward, may have similar incentives to voluntarily surrender, members of MONUSCO should develop a contingency plan in the event that they encounter him or he arrives on their doorstep.  This would include the establishment of temporary detention facilities meeting international standards and an advanced agreement with the ICC on how to effectuate a smooth transfer of custody.

The apparent demise of the M23 opens the way for a number of accountability mechanisms that have been teed up for eastern DRC.  For one, the DRC proposed the establishment of mixed courts to prosecute those individuals who are most responsible for serious violations of international criminal law in the country.  The proposal envisions the creation of specialized chambers fully embedded within the Congolese court system, but benefiting from international personnel working alongside their local counterparts to ensure fair, credible, and even-handed prosecutions.  Parliament has drafted the necessary legislation, which will be merged with the ICC Statute implementation law.  So far, however, the legislation remains stalled in Parliament.  In the wake of the M23’s announcement, U.S. Ambassador to the U.N., Samantha Power, recently endorsed this initiative as an important complement to the work of the ICC in the region.  Russ Feingold, the U.S. Special Envoy for the Great Lakes and the Democratic Republic of the Congo, has also made clear that amnesty for the most serious abuses can play no part in any solution to the conflict and that efforts at accountability should go forward before the ICC and in the domestic system, with international assistance. 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).