The Strange Case of Laurent Nkunda

by Gregory Gordon

Until his arrest by the Rwandan military earlier this year, General Laurent Nkunda, a Congolese Tutsi and former chairman of the Congolese Congrès National pour la Défense du Peuple (CNDP), had been considered one of the key destabilizing figures in eastern Congo. Back in 2004, Nkunda and his rebel troops took control of the South Kivu town of Bukavu, claiming this action was necessary to stop the genocide of the area’s Banyamulenge (Congolese Tutsis) at the hands of the FDLR (see my previous post to learn about them). During the fighting, Nkunda’s troops, thought to be taking orders from Rwanda, reportedly carried out war crimes, killing and raping civilians and looting their property.

DR Congo indicted Nkunda the following year but he and his troops continued to prey on the civilian population of the Kivus. Early in 2007, as part of the demilitarization and reintegration process, combatants loyal to Nkunda were incorporated into the national army in a procedure called “mixage.” Unfortunately, the newly established “mixed” brigades killed scores of civilians and committed rapes and other abuses in their operations against the FDLR.

By the summer of 2007, the political agreements between the government and Nkunda had collapsed and many of Nkunda’s former troops returned to his control. Renewed clashes between CNDP troops and government soldiers followed. In the latter part of 2008, after a brief respite, Nkunda launched a new offensive against government forces that resulted in the eventual encirclement of Goma. The fighting forced more than a quarter of a million people from their homes.

In early January 2009, Nkunda was ousted from the CNDP by his Chief-of-Staff, General Bosco Ntaganda (who is himself under ICC indictment — see here –for Ituri-related war crimes). Nkunda was captured by Rwandan forces a couple of weeks later. And he’s been in Rwandan custody ever since. Soon after his incarceration, it appeared that Rwanda was engaging in serious discussions with DR Congo about extraditing him to face Congolese justice. But those talks seem to have petered out.

Critics claim that Rwanda is unwilling to hand Nkunda over to their former rivals and risk damaging revelations about its past close relationship with the accused war criminal. That perception seems to be corroborated by recent comments by Rwandan president Paul Kagame:

Responding to a question on the status of General Laurent Nkunda, President Kagame told members of the press that the former CNDP leader as an individual was not the main problem and that the current challenges being faced needed to be understood in a wider context of the root causes of conflict and instability in the region. He added that Rwanda and DRC are working closely together to appropriately resolve the issue of General Nkunda, and it should not derail the larger ongoing process of establishing peace, long-term stability and cooperation in development in the Great Lakes region.

Perhaps emboldened by such statements, Nkunda recently asked Kagame to free him (see here). And he claims that his erstwhile ally has neither informed him of the reasons for his arrest and detention nor allowed him to appear before a judge.

On top of all this, it would appear that, as mandated by Congolese law, the Nkunda indictment has not been “renewed” by a judge and has thus expired (and apparently, no arrest warrant was ever issued). Not only has Rwanda’s arrest and detention violated its own domestic law and international human rights obligations, it may not, in the end, even have authority to extradite.

So what now? If there is credible evidence that Nkunda is guilty of war crimes (and there appears to be a lot of it), DR Congo ought to renew or refile its indictment and issue an arrest warrant. If it fails to do so (or if it claims it cannot because its dysfunctional justice system lacks capacity), the ICC should step in and indict (pursuant either to Congolese self-referral, which has been the trend, or to a proprio motu investigation). Even in the absence of an indictment or arrest warrant, Rwanda may have a Geneva Convention duty to act under the principle of aut dedere aut judicare (Latin for extradite or prosecute), which obliges the custodial state to investigate and prosecute or extradite persons suspected of having committed grave breaches of the Geneva Conventions and Additional Protocol I, regardless of the nationality of the alleged perpetrator or place where the crime was committed.

On the other hand, Nkunda’s alleged crimes were seemingly committed as part of an internal armed conflict so it’s not clear if the grave breaches provisions would apply (then again, the conflict might be considered internationalized given the alleged involvement of Rwanda – the custodial state!). By the same token, it could be argued that aut dedere aut judicare is implicated when Common Article 3 is violated (regardless of whether it is considered part of the grave breaches regime – I think a violation of Common Article 3 is automatically tantamount to a grave breach – in contrast to the Bush administration’s specious attempt to import the notion of a “grave breach” of Common Article 3 into the Military Commissions Act of 2006). Still, it should be pointed out that the obligation to investigate or extradite persons suspected of grave breaches is one that has rarely been put into practice. Don’t count on Rwanda to buck the trend.

So Nkunda’s current Kafkaesque predicament will likely continue into the indefinite future. Yet another case of justice delayed (if not ultimately denied) in the nightmare that is DR Congo . . .

http://opiniojuris.org/2009/08/02/the-strange-case-of-laurent-nkunda/

4 Responses

  1. Greg,

    Great post.  But I’m curious about this: “the ICC should step in and indict (pursuant either to Congolese self-referral, which has been the trend, or to a proprio motu investigation).”  Doesn’t the ICC already have jurisdiction over Nkunda’s post-1 July 2002 crimes pursuant to the DRC’s original self-referral?  That referral covers all of the DRC, even though the OTP has been focusing on Ituri (where Nkunda also almost certainly committed crimes) instead of on North Kivu.

  2. Kevin,

    You’re right — I was thinking about the current limited focus on the Ituri cases but the original self-referral should cover it (of course the ICC would have to mind its Art. 17/18 admissibility p’s and q’s with respect to complementarity — especially in light of Congo’s intitial indictment in the case).

  3. Its never ceases to amaze me how the “pink elephant” in the room is never mentioned! So which legal-latin-lingo should describe the murderous, raping, remorseless thugs that macheted a million people in 1994? Nkunda did not fall out of the sky folks – and neither did Kagame create him. Surely with all the legal knowlegde you poses, would it not be only fair to put things in context? Why has a UN peacekeeping force (18.000 strong) with a  $1.2 billion budget failed to protect the people of Eastern Congo?  – Are we to believe that that is Rwanda’s fault too? – A country the size of the state of Vermont? This is what Kagame means when he says that the problems of Congo are not “about Nkunda” – Is Nkunda really the reason that whole region has been at war, ravaged and pillaged since Patrice Lumumba was killed? – Let’s not forget to mention who actually killed him.  How convenient it is to start talking about the problems of Congo without discussing how things got to where they are today!

  4. Jacqueline,

    I completely agree with you.  Please see my previous post (An African Marshall Plan for DR Congo) and, more importantly, my recent article An African Marshall Plan: Changing U.S. Policy to Promote the Rule of Law and Prevent Mass Atrocity in D.R. Congo
    32 Fordham J. Int’l L. 1361 (2009).  There, I talk about the larger causes of the problems in DR Congo and U.S. responsibility.

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