Following yesterday’s post about President Al-Bashir of Sudan, it might be useful to examine other fugitives from justice and the state of U.S. policy toward their capture.
Turning to the Democratic Republic of Congo (DRC), all but one of the International Criminal Court’s DRC indictees is in custody, in trial, or pursuing an appeal. Thomas Lubanga Dyilo, who was already in DRC custody when the ICC turned its attention to him, 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. Bosco Ntaganda voluntarily surrendered to the U.S. embassy in Kigali, Rwanda, in April 2013, and was transported to The Hague in an ICC-chartered plane. The hearing on the confirmation of charges against him will be held in February 2014. The Prosecutor recently filed a document detailing the charges against him as well as an evidence list.
The lone DRC fugitive is Sylvestre Mudacumura (“Mood-a-chu-more-a”), a commander in the FDLR. He is reportedly billeted somewhere in eastern DRC. The Hutu-dominated FDLR is composed of ex-génocidaires who fled Rwanda when the Rwandan Patriotic Front (RPF) assumed control of the country following the 1994 genocide. For many years, the FDLR has controlled territory and preyed on the civilian population in the DRC, particularly those of Tutsi ancestry. A rival armed group, the M23 Movement, which was supported by the current Rwandan Government in part as a proxy force against the FDLR, is also alleged to be responsible for abuses against the civilian population in DRC. The M23 has been defeated by the Forces Armées de la République Démocratique du Congo (FARDC), with the crucial assistance of the UN Stabilization Mission in the DRC (MONUSCO). It is now expected that the FARDC and MONUSCO will turn their attention toward the FDLR. Additionally, there are rumors that Mudacumura may be injured or ill. (Indeed, a bit of a scandal ensued when rumors emerged in 2009 that the U.N. Mission in the DRC (MONUC, since renamed MONUSCO) had offered medical and transportation assistance to Mudacumura). So far, other allegations 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. The Security Council has called expressly for his arrest; such arrest would demonstrate that the DRC and MONUSCO are as committed to go after Rwanda’s enemies as they are to going after its allies, the M23.
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. (See our prior coverage here). When the Security Council renewed the mandate of the MONUSCO in 2013, it created an Intervention Brigade (IB) 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 to the effect 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.
It also requests the Government of the DRC to arrest and hold accountable those responsible for international crimes, including Mudacumura, in cooperation with the ICC.
In the event that Mudacumura has some freedom of movement, he may undertake the same calculus as his compatriot, Bosco Ntaganda, who turned himself in to the U.S. Embassy in Kigali, when his followers were routed by forces controlled by rival Sultani Makenga and were forced to flee across the border into neighboring Rwanda. Ntaganda thus found himself in a country that had placed him in charge of its proxy forces when they integrated with the FARDC in 2009, supported his M23 mutiny against the FARDC in 2012, but then dropped him in favor of Sultani Makenga in early 2013. Ntaganda obviously decided that facing charges before the ICC was a safer bet than the fate that might befall him were he to remain on the run, go undercover in Rwanda, or linger embedded within forces of dubious loyalty. The fact that the United States had recently authorized the payment of a reward under its War Crimes Rewards Program (WCRP) [disclosure: my former office administers this program], a development that had not yet been formally announced but had been made public in Jason Stearns’ excellent and well-read blog, may have played a role in Ntaganda’s decision to turn himself in on his own terms, rather than on the terms of a reward-seeker. Mudacumura is also subject to a reward for his capture and conviction through the WCRP. Although he cannot benefit from the WCRP personally, members of his family or his allies could if they were to help effectuate his surrender.
Because Mudacumura may have similar incentives to voluntarily surrender, members of MONUSCO should develop a contingency plan in the event that 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 smoothly effectuate a transfer of custody. MONUSCO should also use its communications channels with warring parties to encourage this outcome. In coordination with the Court, it could also convey assurances regarding travel, the fate of family members, the availability of legal aid and healthcare, and potential venues for sentence enforcement. For its part, the ICC should ensure it has ready access to a charter plane that can safely extricate Mudacumura from the region and transport him to The Hague to face trial in the event that he surfaces.