Credit: Hypergio via Wikimedia Commons
A trial chamber of the International Criminal Court (ICC) recently rejected defendant Bosco Ntaganda’s claim that the Court lacks jurisdiction to try him for the war crimes of rape and sexual slavery of child soldiers in his own forces. [ICC Press Release] The January 4 decision was issued in response to the defense’s claim that the Court cannot assert jurisdiction over those crimes under the Rome Statute – from which the Court derives its authority – as committed against child soldiers because both the perpetrators and victims of the alleged crimes were members of the same armed force and active in the conflict. The defense argued the charges in question must be viewed in light of the relevant provision of the Geneva Conventions, which does not provide protection for individuals active in the hostilities. [ICC Press Release]
The Court disagreed with the defense’s interpretation of the law by finding that the Rome Statute does not require an assessment of the victims’ participation in the hostilities and that international law recognizes a jus cogens prohibition on rape at all times, regardless of the victim’s status. The Court also determined that neglecting to exercise jurisdiction over those crimes would run contrary to the intent of international humanitarian law, which seeks “to mitigate the suffering resulting from armed conflict.” [ICC Press Release] This decision marks the first time the ICC has considered whether sexual crimes against one’s own troops may be considered war crimes within its jurisdiction. Ntaganda is accused of responsibility for crimes committed in the Democratic Republic of Congo in 2002 and 2003. [ICC Press Release]
The Parties’ Arguments
The defense’s argument arose from the charges against Ntaganda of rape and sexual slavery of child soldiers as war crimes under Article 8(2)(e)(vi) of the Rome Statute. See ICC, Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06, Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9, 4 January 2017, paras. 1-9. The relevant article of the Rome Statute provides that the ICC has jurisdiction over war crimes of rape and sexual slavery in the context of non-international armed conflict as well as war crimes of other types of sexual violence, including those that violate Common Article 3 of the Geneva Conventions. Common Article 3 provides that in a non-international armed conflict, each party shall protect “persons taking no active part in hostilities” and the wounded and sick.
The defense argued that the two counts in question – the war crimes of rape and sexual slavery of child soldiers – do not come within the subject matter jurisdiction of the Court because they were perpetrated by and against members of the same armed force all active in the conflict and as such, do not fall under Common Article 3 to the Geneva Conventions. See id. at para. 27. In its application on the matter of jurisdiction to the Court, the defense argued that Article 8(2)(e)(vi) is subject to the international legal requirements of war crimes generally, including the standards under Common Article 3. As Common Article 3 aims to protect those “taking no active part in the hostilities,” child soldiers’ membership in an armed force, the defense argued, places them outside of those individuals Common Article 3 protects. Therefore, the defense stated, Article 8(2)(e)(vi) does not include the war crimes of rape and sexual slavery as committed against child soldiers. See Prosecutor v. Bosco Ntaganda, 4 January 2017, para. 27.
The prosecution argued that the Court has jurisdiction over the two disputed counts because the relevant provision of the Rome Statute, Article 8(2)(e)(vi), imposes no “limit on criminal liability for rape and sexual slavery on the basis of the status or activities of the victims.” See id. at para. 29. In the prosecution’s reply to the defense’s argument, the prosecution asked the Court to conduct a plain reading of Article 8(2)(e)(iv) through which, the prosecution argued, the Court should find that the reference to Common Article 3 within the provision only relates to “any other form of sexual violence” and not the other enumerated terms, including rape and sexual slavery. The reference to Common Article 3, the prosecution argued, does not import its elements to the entire provision under Article 8(2)(e)(iv). Therefore, according to the prosecution, all Common Article 3 arguments put forth by the defense are irrelevant. See Prosecutor v. Bosco Ntaganda, 4 January 2017, para. 29.
Moreover, the prosecution claimed that even if Common Article 3 were to apply, the Court would still have jurisdiction because Common Article 3 only requires that the victim was not taking part in the hostilities. Common Article 3 provides that “members of armed forces who have laid down their arms” are protected under the article and does not require that individual to be of a different affiliation from the perpetrator. Further, the prosecution maintained that international humanitarian law does not require perpetrators and their victims to have different affiliations because the requirement that a victim be an adverse party is not consistent across the Geneva Conventions. See id. at para. 30. Lastly, the prosecution identified special protections owed to the child victims in this case by virtue of their minority and unlawful recruitment into the FPLC. See also Prosecutor v. Bosco Ntaganda, 4 January 2017, paras. 30-31.
The Court’s Decision
Citing both the language and drafting history of Article 8, the Court concluded that victims of the war crimes of rape and sexual slavery in both international and non-international armed conflict need not be protected persons under Common Article 3 for the Court’s jurisdiction to be valid. Nor does any such requirement exist in the broader international legal regime. See id. at para. 44. The structure of Article 8 of the Rome Statute is divided into four pieces, separating violations of the Geneva Conventions from other serious violations in the context of armed conflict. See id. at para. 40. Article 8(2)(e)(iv) and the provision discussing rape and sexual slavery in international armed conflict are both separated from the sections involving violations of the Geneva Convention. Therefore, the structure of Article 8 and the plain reading of the relevant provisions, the Court held, do not require a determination of status or affiliation of the victims under Common Article 3. See id. at paras. 40-44.
The Court also determined that denying jurisdiction, thereby limiting the scope of protection against sexual violence, would undermine the rationale behind international humanitarian law. See Prosecutor v. Bosco Ntaganda, 4 January 2017, para. 48. International humanitarian law, the Court found, “aims to mitigate the suffering resulting from armed conflict,” and anticipates suffering but demands that it “only follow from actions that are military necessary or that will result in a definite military advantage.” See id. at para. 48. Raping and sexually enslaving child soldiers, the Court opined, is not necessary and does not bring about “any accepted military advantage.” See id.
In the Court’s view, the law should not be interpreted as affording protection against sexual violence only to certain groups of people because rape and sexual slavery are “prohibited at all times, both in times of peace and during armed conflicts, and against all persons, irrespective of any legal status.” See id. at paras. 51–52. The Court found that both rape and sexual slavery have jus cogens status under international law, and derogation is, therefore, not possible. See id. at para. 51. As such, the Court concluded that “members of the same armed force are not per se excluded as potential victims” of these crimes and the Court retains jurisdiction to make the relevant factual determinations on these counts. See id. at para. 54.
Case Background
Bosco Ntaganda, the former alleged Deputy Chief of the General Staff of the Patriotic Force for the Liberation of Congo (FPLC), is facing 13 counts of war crimes (including rape, sexual slavery, murder, and conscription of child soldiers) and five counts of crimes against humanity (including murder, rape, sexual slavery, and persecution). [ICC Press Release] The crimes were allegedly committed from 2002–2003 in the Democratic Republic of the Congo in connection with widespread attacks against non-Hema ethnic groups and an armed conflict between the FPLC and other armed forces. Ntaganda’s trial opened in September 2015 and remains ongoing. See ICC, Ntaganda Case.
With regard to this jurisdictional challenge, the trial chamber initially dismissed the defense’s challenge as a non-jurisdictional matter that would be addressed in the judgment. However, the Appeals Chamber considered the issue to be jurisdictional and instructed the chamber to revisit the matter. [ICC Press Release] The Court’s decision does not discuss the specific responsibility of the defendant, whose guilt or innocence will be determined at the conclusion of his trial. [ICC Press Release]
Background on the International Criminal Court
The ICC, which was inaugurated in 2002 and has its seat in The Hague, Netherlands, tries individuals for war crimes, genocide, and crimes against humanity. The Court has jurisdiction over cases in which the alleged perpetrator is a national of one of the 124 States parties to the Rome Statute, the crime was committed on the territory of a State party, the State involved authorizes the Court’s jurisdiction, or the UN Security Council refers a situation to the Court. The ICC is an international tribunal designed to complement national judiciaries; thus, it can only step in when national courts are unable or unwilling to prosecute.
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