Is the Congolese Government Manipulating the ICC for political Motives?

The failure in the arrest of Bosco Ntaganda to date highlights the lack of seriousness in strengthening arrest warrants issued by the ICC. If the ICC finds that the case of Ntaganda reached an impasse in cooperation with the Congolese State, it should refer the case to the UN Security Council  to find solutions, in accordance with Article 87, paragraph 7 Treaty of Rome

Mrs. McCain is asking for American leadership. Such leadership is critical. However, her piece does not ask for American leadership in helping to find an end to the conflict. In fact, it seems to pass such efforts off to others. The World Food Program does incredible work, and must be supported. However, Mrs. McCain’s call to address the humanitarian situation in eastern Congo without addressing the presence of war in the region is worrisome. America’s support to civilians in eastern Congo must go beyond food aid; it must include protecting civilians from indiscriminate killings, and women and girls from sexual violence. It must work to end impunity and to address the root causes of decades of violence. Mrs. McCain’s piece draws crucial attention to the situation in eastern Congo, but those who are pushed to action by her words must work toward stopping the violence as well as stopping starvation.
 
 
Is the Congolese Government Manipulating the ICC for political Motives?

After the establishment of the ICC in 2002, many people had the hope that the ICC will inaugurate a new period of international responsibility for serious violations of human rights, ensuring that perpetrators are brought to justice. It is for the same reason that some founders of the ICC anticipated that by ending impunity the ICC will deter future attrocités. This promise created hope for many people, including our organization, The Mobilization for Justice and Peace in the Congo which struggles to promote justice and peace in the DRC, fighting impunity rigorously.
 
With a sense of disappointment to the Congolese people, the Congolese government has preferred to integrate Bosco Ntaganda into the Congolese Armed Forces instead of arresting him on the pretext of preserving national security and the process of national peace. In the words of the Congolese Minister of Justice, January-Emmanuel Luzolo: "In the legal practice of a State, there are times when the demands of peace outweigh the traditional needs of justice." Of course, it is clear that the Congolese government has decided to play politics, to stifle justice and prevent the development of democracy and the rule of law.

This decision is not in the interest of the Congolese people. The Congolese Government borrowed the premise once used by the criticism of the arrest of Thomas Lubanga which the Congolese Government itself had rejected. The assumption that the arrest and extradition of  Thomas Lubanga to the ICC would create more conflicts and hamper the peace process and national reconciliation. The evidence speaks for itself, the case of Thomas Lubanga has become a classic example which proves that the arrest of Bosco Ntaganda will not affect the peace process as the Congolese Government has claimed. Moreover, the moment is more propitious for such a request that the time of the arrest of Thomas Lubanga, a time that was more confrontational and more dangerous. Nevertheless, the prediction of criticism has never materialized.
 
If the Congolese government continues to maintain this position, is it not time for the International Criminal Court or the UN Security Council, to take other precautions to allow justice to complete its course?  IS the ICC still working to arrest  Ntaganda or  is it using other provisions in its power to honor its decision?
  
It is important for the ICC to do everything to preserve its credibility

The Canadian non-governmental organization "The International Center for Human Rights and Democratic Development" once warned that if some states are able to use the ICC for their political motives, or if some people are beyond the scope of the ICC because of their position within a State, the Court will lose credibility, human rights will continue to be violated and democratic development will be stifled. (1)
 
It is unfortunate that today the case of the alleged war criminal and criminal against humanity, Bosco Ntaganda, becomes a case that this prediction of this organization of human rights takes place under the eyes of the world and highlights how the credibility of this noble ICC is now tested, and that itself has  to defend its credibility, its merits and its essence.

On 29 April 2008, the Trial Chamber of the ICC unsealed an arrest warrant against Mr. Bosco Ntaganda, former Deputy Chief of the General Staff of the Patriotic Forces for the Liberation of Congo ( FPLC) in Ituri, and the current Chief of Staff of the Congrès National pour la Défense du peuple (CNDP) armed group in North Kivu in the DRC. The arrest warrant listed three war crimes: 1) the recruitment of children under fifteen, 2) the conscription of children under fifteen years, and 3) the use of children under fifteen years to participate actively in hostilities. But also, the crimes committed in North Kivu are not yet registered and it is time that the Prosecutor of the Court brings to light the horrific acts perpetrated under his orders in Kiwanja, for example, where 150 civilians were massacred.

In fact, it appears that after the lifting of sealed arrest warrant against Bosco Ntaganda on April 29, 2008, the International Criminal Court as an institution which oversees combating  impunity, has done nothing as next step to give value to its arrest warrant and prove to the Congolese Government and to the indicted war criminal that its decision is not an act of an inconsistent judgment. Are there no mechanisms for recourse if they  have met the lack of cooperation from the Congolese State?
 
The involvement of the Security Council of the UN seems to be inevitable if the warrant issued against Ntaganda was to be executed.

It is quite inconceivable that the ICC has forgotten that in the event of deadlock in Article 17, paragraph 3 of the Negotiated Relationship Agreement between the ICC and the UN, may be referred by the Registrar of the ICC in order to involve the UN Security Council, through its intremise Secretary General, in seeking resolutions. Here is the Article 17 of this Agreement:
 
"When a matter has been referred by the Security Council, the Court finds, in accordance with Article 87, paragraph 5 (b) and paragraph 7 of the Statute, a State refuses to cooperate with it, it shall inform the Security Council or to refer the matter, as appropriate, and the Registrar shall notify the Security Council through the Secretary-General, the decision of the Court and the relevant information about the case. The Security Council, by 'Under-Secretary-General, shall inform the Court, through its Registrar, any action it takes in this case "(2)
 
If the ICC finds that the case of  Ntaganda reached an impasse in cooperation with the Congolese State, it should refer the case to the Security Council of the United Nations to find solutions, in accordance with Article 87, paragraph 7 Treaty of Rome:

"If a State Party fails to comply with a request for cooperation contrary to the provisions of this Statute and prevents the exercise of the functions and powers under this Statute, the Court may make and referer to the Assembly of States Parties or the Security Council when the person who has entered. "(3)

The failure of MONUC to take action against an indicted war criminal is in contradiction with its mission in Congo because peace and justice go hand in hand.

The silence of the UN seems to imply its complicity in this life of impunity in the Congo! If this is not true, why the Security Council does not authorize the ICC to use the 17,000 MONUC troops to stop Ntaganda Bosco?

Above all, it should be noted that Article 8 of the Negotiated Relationship Agreement between the ICC and the United Nations provides that these two institutions should consult, cooperate and even exchange of staff and services. Article 8.2 (b) clearly states that the UN and the ICC agreed to cooperate in the temporary exchange of staff when appropriate, without the latter losing its rights to ancieneté or her pension rights . This means that it is legal and acceptable that the UN staff in Congo to work in strengthening the arrest warrant of the ICC.

The role of the United Nations as a guarantor of international security seems to turn into complacency for war criminals and violators of human rights in Congo.

It is sad to note that the UN Mission in Congo, the largest in the world, MONUC, which has among its staff: 16.601 soldiers, 737 Military Observers, 1093 policiens and 965 civilian specialists in human rights and humanitarian affairs without including its local staff and voluntary, with an annual budget of 1243 million U.S. dollars; remained infertile in deterring attrocités perpetrated on the civilian population and its inability to arrest  the alleged war criminal, Bosco Ntaganda. The role of the United Nations as a guarantor of international security seems to turn into complacency of criminals and violators of human rights.

On 30 January 2009, MONUC expressed openly during a press conference at the military joint DRC-Rwanda, it will  not participate in a military operation in which Bosco Ntaganda, an alleged war criminal and criminal against humanity, plays any role. (4). Disappointing today, the credible source alleged that MONUC participated in a joint operation (MONUC-FARDC) with Ndaganda as a co-coordinator, according to BBC. (5)
 
In Congo, as elsewhere, the ICC as an international instrument in the fight against impunity and to prevent atrocities could quickly lose its value if it does not take concrete steps to begin enforcing its own issued arrest warrants.
 
No doubt today, some people see the failure in the arrest of Bosco Ntaganda as a lack of political will of the UN Security Council, an outright complicity complacent and guilty of a refusal to play its impartial role in the defense of justice and the eradication of impunity, cause of affliction ravaging the lives and perpetuates human rights abuses in the Congo in particular and Africa in general. The International Criminal Court  is also being tested to prove its validity to the World, effectiveness, consistency and impartiality in the exercise of its prerogatives. The world is waiting patiently and carefully watching  the actions of these two institutions in ensuring  that justice is done in the Congo and that war criminals Bosco  Ntaganda and Laurent Nkundabatware and others are arrested and tranferréd to the Hague to answer for their heinous acts.

It is imperative for the first permanent international court to keep some impeccable impartiality to prevent or minimize the risk of getting trapped by the same perpetrators of human rights violations the Court has been established to hold responsible. Why Bosco Ntaganda, the notorious war criminal and a crime against humanity today remains free while his three colleagues, Mathieu Ngudjolo Chui, Germain Katanga and Thomas Lubanga are behind bars? His state of freedom, is it not a sign of lack of seriousness in strengthening the decisions of the Internatinal Criminal Court and the lack of commitment of the UN Security Council to supervise the decisions of its beloved instituti its vowed to create and vowed  to help achieve its mission? Is it an irony when the founding state, the Security Council of the United Nations, saying that the commitment made in Rome to end àl'impunité is not negotiable!. Is it an irony when these founding states and the UN Security Council say that the commitment taken in Rome to put an end to impunity is not negotiable!