On July 13, 2012, Pre-trial Chamber II of the International Criminal Court (ICC) issued two arrest warrants with respect to the situation in the Democratic Republic of the Congo, one for Sylvestre Mudacumura and one for Bosco Ntganda.
Bosco Ntganda
Mr. Ntganda is suspected of committing war crimes and/or crimes against humanity during the conflict in the district of Ituri, Province Orientale.
Mr. Ntganda was the deputy chief of staff for the Union des Patriotes Congolais (UPC)/Forces Patriotiques pour la Libération du Congo (FPLC) and commander of operations of the FPLC. Ntganda commanded all FPLC sectors and brigades and all of the organization’s military operations.
The prosecutor contended that Ntganda planned and commanded military attacks against the Lendu and other non-Hema tribes. UPC and FPLC troops allegedly overran and ransacked villages and towns, killing and raping civilians across Ituri.
Before a Chamber issues an arrest warrant, article 58(1) of the Rome Statute (hereinafter called “Statute”) requires that the Chamber be satisfied that there are reasonable grounds to believe that the accused person committed a crime within the jurisdiction of the ICC. The evidence need only establish a reasonable conclusion that the person committed a crime within the jurisdiction of the Court, and it is not required that this be the only reasonable conclusion that can be drawn from the evidence.
Based on evidence presented by the Prosecutor, the Chamber determined that there are reasonable grounds to believe that Ntganda is responsible for three counts of crimes against humanity: persecution based on ethnic grounds; rape and sexual slavery; and murder. The Chamber also concluded that there are reasonable grounds to believe that Ntganda is criminally responsible for the following war crimes: attack against the civilian population, murder, rape and sexual slavery, and pillaging.
The Chamber found that Ntganda’s arrest was necessary to ensure his appearance at trial, to ensure that he does not obstruct or endanger the investigation, and to prevent the commission of crimes within the jurisdiction of the Court.
This is the second arrest warrant issued by the ICC with respect to Mr. Ntganda. The first arrest warrant for Ntganda was issued on August 22, 2006, for three counts of war crimes allegedly committed in Ituri: enlistment of children under age fifteen, conscription of children under age fifteen, and using children under age fifteen to participate in hostilities.
Sylvestre Mudacumura
Sylvestre Mudacumura is suspected of committing war crimes during the conflict in the Kivu provinces in the Democratic Republic of the Congo between January 20, 2009, and September 30, 2010. Mudacumura was the top military commander of the Forces Démocratiques pour la Libération du Rwanda (FDLR) during the relevant time period and still appears to hold that position. Based on evidence presented by the Prosecutor, pretrial Chamber II found that there are reasonable grounds to believe that Mr. Mudacumura is responsible for nine counts of war crimes, including murder, mutilation, attacks against civilians, cruel treatment, rape, torture, pillaging, destruction of property, and outrages against personal dignity.
Mudacumura allegedly bears individual criminal responsibility under article 25(3)(b) of the Rome Statute for ordering the commission of these war crimes.
Acts specified in article 7(1) of the Statute qualify as crimes against humanity only if they are committed as part of a widespread or systemic attack directed against any civilian population with knowledge of the attack. According to article 7(2) of the Statute, “attack directed against any civilian population” means a course of conduct involving the multiple commissions of acts referred to in article 7(1) against any civilian population pursuant to or in furtherance of a state or organizational policy to commit such an attack. Thus, it must be demonstrated that a state or organizational policy existed under which a civilian population was the primary object of the attack, and, according to the Elements of Crimes, a “policy to commit such attack” requires that the state or organization “actively promote or encourage such an attack against the civilian population.”
The Chamber decided that there were no reasonable grounds to believe that crimes against humanity were committed because, although the FDLR was responsible for commission of multiple acts referred to in article 7(1), the Chamber could not reasonably conclude that the civilian population was the primary object of those acts.
The Chamber found that the arrest of Mudacumura was necessary to ensure that:
1) he will appear before the judges;
2) he will not obstruct the Court proceedings; and
3) he will not continue with the commission of a crime within ICC jurisdiction.
