Prosecutor v. Ntaganda: the end of impunity for sexual violence against child soldiers?

• Author: Tridgell, Jennifer
• Position: CASENOTE

I Introduction

On 14 June 2017, the Appeals Chamber of the International Criminal Court (ICC) ruled that rape and sexual slavery of child soldiers were war crimes under the Rome Statute, even when the perpetrators and victims belonged to the same armed group. (1) This unanimous decision, which the Court described as 'unprecedented', came in the case of Bosco Ntaganda. He has been called 'The Terminator' for his role as Deputy Chief of Staff in the armed group Union des Patriotes Congolais (UPC), which reaped death and destruction across the Ituri region of Democratic Republic of the Congo (DRC). The Appeals Chamber ruling was especially poignant, given the region's notoriety as the 'rape capital of the world'. (1) For the first time in history, the ICC had jurisdiction to prosecute sexual violence in conflict, regardless of whether victims were civilians or combatants.

The Appeals Chamber's judgement, which affirmed the Trial Chamber VI's verdict from 4 January 2017, created ripples in the international law community. It has drawn praise for correcting 'gender blindness' of the ICC towards sexual abuse of girl soldiers, and criticism for erroneously expanding the scope of war crimes. (3) The Court decided whether victims of the war crimes of rape and sexual slavery, under the Rome Statute articles 8(2)(b)(xxii) and (e)(vi), had to be 'protected persons' or '[p]ersons taking no active part in the hostilities', in keeping with Geneva Conventions of 1914 (Geneva Conventions) or its Common Article 3 respectively. (4) These were 'Status Requirements', which allegedly limited ICC jurisdiction to protect civilians, or soldiers who were hors de combat. Ultimately, the Court ruled that the Rome Statute and international law, including international humanitarian law (IHL), did not impose Status Requirements for victims of rape and sexual slavery in conflict.

This case note proceeds in three parts. Firstly, I examine the origins of the decision in Ntaganda, and why the Appeals Chamber's approach was unique. Secondly, I analyse the Court's reasons for the decision, to ascertain whether it was the legally sound or not. Finally, I investigate the effects of the judgment, with regard to future prosecution of sexual and gender-based violence in conflict. Kelly Askin once observed that '[a]lmost since the existence of humankind, there has been war, and where there is war, there is.... sexual assault'. (5) Ntaganda was a victory for those victims, for arguably extending protection to every victim of rape and sexual slavery in conflict. Yet change before the ICC often has been slow and incremental. Ntagandds treatment of gendered crimes was flawed, but at least it was a large step in the right direction.

II Case History

Originally, it was not expected that Ntaganda would address gender-based and sexual crimes, let alone forge new paths for gender justice at the ICC. During the first case before the ICC, Prosecutor Ocampo tried to 'squeeze' sex crimes into the crime of using child soldiers, rather than amend the charges. (6) This was despite the fact that 15 of 25 prosecution witnesses had mentioned sexual violence against girl soldiers. (7) Thomas Lubanga Dyilo, the nefarious President of the UPC and Ntaganda's comrade, was only charged with recruiting child soldiers.

After this disastrous outcome, newly appointed Prosecutor Bensouda was determined to place sexual violence and atrocities against children squarely on the agenda. (8) She spearheaded the Office of the Prosecutor (OTP) Policy Paper on Sexual and Gender Based Crimes, successfully prosecuted the war crime of rape for the first time in Bemba, and amended the charges against Ntaganda to emphasise the centrality of sexual atrocities in UPC campaigns. (9) When Prosecutor Ocampo had applied for an arrest warrant for Ntaganda in 2006, there was no mention of sexual crimes. (10) Because of Prosecutor Bensouda, Ntaganda was charged with 5 counts of crimes against humanity, and 13 counts of war crimes, including rape and sexual slavery of child soldiers and civilians respectively. (11) It also helped that the OTP had eight more years to investigate the case, and was more responsive to women's rights advocates in the aftermath of Lubanga. (12)

Ntaganda would not have made legal history, without the Appeals Chamber's innovative legal approach. The Prosecutor proposed two possible avenues to prosecute sexual crimes within an armed group: either child soldiers were not 'actively' participating in hostilities when they were raped or sexually enslaved, or child soldiers were not required to fulfil Status Requirements under international law.' (13) The Pre-Trial Chamber adopted the former approach: (14)

The sexual character of these crimes, which involve elements of force/coercion or the exercise of rights of ownership, logically preclude active participation in hostilities at the same time. Whilst logically sound, this verdict was contrary to Lubanga and IHL. Firstly, the decision that child soldiers were not 'active' participants in conflict during sexual attacks ignored the fundamental IHL principle that soldiers may bear a 'continuous combat function'. (15) Secondly, Lubanga widened the definition of 'active' participation in conflict under the Rome Statute article 8(2)(e)(vii), to span from those who participated directly on the front line through to those '... who are involved in a myriad of roles that support the combatants'. (16) This probably included victims in Ntaganda who were abducted to act as domestic servants, or those who acted as bodyguards and underwent military training. (17) This broader definition of 'active' participants posed greater danger to child soldiers. They lost protection under IHL while they 'actively' participated in hostilities. (18)

Mercifully, the Trial Chamber did not rely on the problematic legal reasoning from either the Pre-Trial Chamber or Lubanga. After Ntaganda challenged ICC jurisdiction in September 2015, the case travelled from the Trial to Appeals Chamber, and back to the Trial Chamber in March 2016." Based on the Rome Statute and international law framework, the Trial Chamber ruled that child soldiers were protected from rape and sexual slavery, regardless of whether they were 'active' participants or not. (20)

Ill Analysis

1. Scope of the Rome Statute

   When 120 States adopted the Rome...