International Justice Monitor

A project of the Open Society Justice Initiative

Ntaganda Appeals ICC Decision to Try Him Over Rape of UPC Child Soldiers

Bosco Ntaganda is taking his challenge to the International Criminal Court’s mandate to try him over the rape of child soldiers in his militia group to the court’s Appeals Chamber, after trial judges affirmed that they would try him on those charges.

The appeal has been raised pursuant to Article 82(1)(a) of the court’s founding law, the Rome Statute, which provides that a party to a case may appeal a decision with respect to court’s jurisdiction. Ntaganda has since September 2015 been on trial for 18 counts of war crimes and crimes against humanity. He is only contesting the ICC’s mandate to try him on two of those counts.

In the January 10, 2017 appeal notice, defense lawyer Stéphane Bourgon asks appeals judges to declare that the trial chamber has no jurisdiction to try Ntaganda over the alleged war crimes of rape and sexual slavery of child soldiers in the Union of Congolese Patriots (UPC) by fighters from the same militia group. In the alternative, the defense requests the appeals chamber to return the matter to the trial chamber after offering further instructions and guidance on the interpretation of the Rome Statute article under which Ntaganda has been charged with in the two contested counts.

Earlier this year, trial judges ruled that the ICC has the mandate to try the former Congolese rebel leader over those charges. They determined that members of the same armed force are not excluded as potential victims of the war crimes of rape and sexual slavery, whether as a result of the way these crimes have been incorporated in the Rome Statute, or under international humanitarian law.

In contesting the ICC’s jurisdiction over the two cases, the defense has argued that under Article 3 of the Geneva Conventions of 1949, war crimes may not be committed by members of an armed force against members of the same armed force. It contends that the victim of a war crime in a non-international armed conflict must be a protected person within the meaning of Article 3, meaning a person “taking no active part in the hostilities.” The defense also suggested that such crimes could be criminalized and punished domestically, as with all other crimes committed by soldiers against fellow members of the same force.

The prosecution alleges that Ntaganda, as the UPC’s former deputy chief of staff, is criminally responsible for the rape and sexual enslavement of child soldiers in the militia group by its commanders and soldiers.

The defense, citing the intricacy of the appeal and its heavy workload in the ongoing trial, has asked judges for a week’s extension to the January 27 deadline for submitting its document supporting the appeal. It submits that the appeal involves “an inherently complex area of law” concerning the jurisdiction of the court regarding the two cases and the correct interpretation of Article 8 of the Rome Statute. The issue, adds the defense, “is not only important to the further scope of the Ntaganda case, but likely will have ramifications for other cases as well.”

Judge Christine Van den Wyngaert, who is the president of the Appeals Division, has named Judge Sanji Mmasenono Monageng as the presiding judge in the jurisdiction appeal

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