26 11 13 IWPR – Judge Denies Ntaganda’s Request For Release From ICC Custody

On
March 18, 2013, Mr. Ntaganda walked into the American embassy in Rwanda and
asked to be transferred to The Hague where two arrest warrants had been issued
against him. The first warrant – issued in 2006 – alleged that Mr. Ntaganda,
along with Thomas Lubanga, recruited, enlisted, and used child soldiers in armed
conflict during 2002 and 2003.

The
second warrant – issued in July 2012 – accused him of the crimes against
humanity of murder, rape, and sexual slavery, and war crimes of murder, attacks
against a civilian population, pillaging, rape, and sexual
slavery.

In
an application for interim release, his lawyer Marc Desalliers denied that Mr.
Ntaganda had evaded justice – saying instead that the militia commander had been
contributing to peace efforts, including serving in Congo’s army. He also said
Mr. Ntaganda’s voluntary surrender showed he was ready to cooperate with the
court. Furthermore, Mr. Desalliers argued in the August 20, 2013 application
that Mr. Ntaganda had no passport or other travel documents and as such would
remain on the territory of The Netherlands if the court released
him.

However,
Judge Trendafilova rejected these arguments. In a ruling on November 18, 2013,
she noted that despite the issuance of two warrants of arrest against him, for
more than six years Mr. Ntaganda did not choose to face justice, but instead
managed to avoid apprehension “in total disregard of the serious accusations
brought against him.”

She
added, “His prior ability to escape for such a lengthy period of time, until the
moment of his choosing, enhances his motivation to flee when the circumstances
allow.”

According
to the judge, the fact that Mr. Ntaganda surrendered to the court was not
sufficient to justify his release. Instead, the judge’s determination had to
take into consideration the circumstances of Mr. Ntaganda’s voluntary surrender,
including its timeliness and the manner in which it took
place.

“The
evidence or material available before the Single Judge suggests that Mr.
Ntaganda’s voluntary surrender was prompted by the likelihood of him being
killed or by pressure imposed on him by the Rwandan Government,” the judge
stated.

She
explained that Mr. Ntaganda had lost the support of the Rwanda government and
that his faction of the M23 rebel group was on the run and out of ammunition.
Furthermore, stated the judge, there was word that the triumphant faction of the
M23 had ordered that Mr. Ntaganda be killed. Additionally, the Congolese
government had ordered Mr. Ntaganda’s arrest.

Judge
Trendafilova noted that the charges Mr. Ntaganda faced were numerous and of such
gravity that they might result in an overall lengthy sentence. Mr. Lubanga, his
co-accused, was last year convicted of enlisting, conscripting and recruiting
children into armed conflict and handed a 14-year prison
sentence.

“Mr.
Ntaganda’s mere awareness of the sentence imposed in quite a similar case such
as that of Thomas Lubanga increases the possibility of him absconding,” the
judge said.

Judge
Trendafilova rejected the defense’s assertion that the risk of absconding was
low since the accused was subject to United Nations sanctions, including a
travel ban and an asset freeze. She stated that there was information indicating
that Mr. Ntaganda had traveled twice to Rwanda in 2011 despite the existence of
a travel ban. It was thus possible that he could still move outside of the
Netherlands if he were released from custody. The Netherlands denied Mr.
Ntaganda’s request to be released on its territory.

The
judge also determined that Mr. Ntaganda had financial means to abscond. She
noted that the M23 group carried out massive looting in the Congolese town of
Goma during November 2012 of an estimated value of US$3 million. The group also
allegedly collected an average of US$180,000 in taxes per month at check points.
In addition, said the judge, sources indicated that Mr. Ntaganda owned “a fuel
station, a flour factory in the center of Goma, which is run by his wife, a
hotel in the same location, and several bank accounts in Rwanda under the name
of his wife.”

Finally,
the judge noted that the identity of more than 30 witnesses has been disclosed
to Mr. Ntaganda, and given his “documented history of violence” and the
seriousness of the charges against him, “one cannot rule out the possibility of
him influencing, threatening or intimidating witnesses and victims and/or their
family members.”

The
confirmation of charges hearing for Mr. Ntaganda is scheduled for February
2014.