Former Congolese rebel commander Bosco Ntaganda’s conviction at the International Criminal Court (ICC) has been confirmed by the court’s Appeals Chamber, which also upheld his 30-year prison term.
In a majority judgement delivered on March 30, 2021, appeals judges ruled Trial Chamber VI did not err in convicting Ntaganda for all 18 crimes he was tried for. The Appeals Chamber was composed of Judge Howard Morrison (Presiding), Judge Chile Eboe-Osuji, Judge Piotr Hofmański, Judge Luz del Carmen Ibáñez Carranza, and Judge Solomy Balungi Bossa.
The Appeals Chamber also rejected Ntaganda’s plea to reduce his prison term to no more than 23 years. According to the Chamber, the 30-year jail term handed to Ntaganda, 47, was not excessive or disproportionate to the crimes he was convicted of. It also found no error in the approach taken by the trial chamber in determining the sentence.
The appeals judgement brings to an end a long road to justice for a key actor in the devastating violence that has rocked eastern Democratic Republic of Congo for decades. While the ICC issued the first warrant for Ntaganda’s arrest back in 2006, he evaded justice for years, during which he lived openly in eastern Congo and allegedly continued to commit crimes. In March of 2013, Ntaganda voluntarily surrendered when he walked into the U.S. embassy in Rwanda and asked to be transferred to The Hague. His trial started in September 2015.
In July 2019, Trial Chamber VI convicted Ntaganda of all crimes charged, including murder, rape, sexual slavery, enlisting and using child soldiers, forcible displacement, destruction of property, pillaging, and attacking civilians and protected objects. He committed the crimes during 2002 and 2003 while serving as the deputy chief of staff of the Patriotic Forces for the Liberation of Congo (FPLC) militia.
Thomas Lubanga, the militia’s commander-in-chief, and head of its political wing known as the Union of Congolese Patriots (UPC), was convicted in March 2012 by the ICC over the conscription and use of child soldiers. He completed his 14-year prison sentence a year ago.
In its judgement, the Appeals Chamber determined that Ntaganda did not demonstrate that his right to a fair trial was violated. The Chamber also ruled that, in convicting Ntaganda, the trial chamber did not exceed the facts and circumstances described in the charges. The Chamber rejected all of Ntaganda’s arguments that the trial chamber prioritized expeditiousness at the expense of his right to a fair hearing.
In their appeal, defense lawyers alleged that numerous procedural irregularities undermined Ntaganda’s right to a fair trial, citing the trial chamber’s “excessive” use of ex parte material from the prosecution and its alleged error in declining to suspend the proceedings prior to resolving the defense’s no case to answer appeal.
However, the prosecution countered that the judges did not violate any of Ntaganda’s fair trial rights or make errors in assessing the evidence. The prosecution said Ntaganda’s convictions were premised on properly reasoned factual findings, and correctly applying the standard of proof.
The appeals judges also dismissed Ntaganda’s argument that trial judges erred in finding that the UPC/FPLC had an organizational policy to attack civilians. The Appeals Chamber found that the trial chamber’s conclusion regarding the existence of an organizational policy was reasonable since evidence showed that, in committing the crimes, Ntaganda acted pursuant to a UPC/FPLC policy to attack and chase away civilians of Lendu ethnicity as well as those perceived who were not from Ituri.
The defense had argued that trial judges did not cite any evidence to show that the UPC had a common plan to attack civilians, yet such evidence was a prerequisite to determining the commission of crimes against humanity. Defense lawyers also submitted that trial judges erred in finding that Ntaganda was liable as an indirect co-perpetrator, arguing that the UPC/FPLC did not have a common plan to destroy the Lendu ethnic community.
The Prosecutor had also appealed the conviction decision, arguing that the trial judges should have interpreted the legal meaning of “attack” in relation to a church and a hospital differently so as to give special respect to cultural and medical buildings. While some judges issued separate opinions and dissented on certain grounds of appeal, the chamber rejected all grounds of appeal by both the defense and the prosecution by majority.
On November 7, 2019, Ntaganda was sentenced to a total of 30 years of imprisonment. In his appeal, he argued that the trial judges failed to concretely assess his level of participation in committing the crimes and handed him a disproportionate sentence. The defense said the judges erred by failing to distinguish between Ntaganda’s degree of participation in crimes committed in the course of the two different operations in relation to which he was convicted.
In their judgement, the judges said Ntaganda’s culpability for crimes committed during both operations was high, irrespective of whether he was in close physical proximity to the scene of the crimes.
In the 2019 sentencing, Ntaganda received the highest sentences for the crimes of murder and attempted murder (30 years) and persecution (30 years). The sentences imposed for other crimes were rape of civilians (28 years) and conscripting, enlisting and using children in armed conflict (18 years). For the rape of female child soldiers in the UPC militia, he received 17 years.
In the appeals ruling, the judges maintained the individual sentences and the overall sentence imposed by the trial chamber. They rejected Ntaganda’s argument that he bore zero or limited responsibility for crimes committed by FPLC fighters without his knowledge or far from where he was physically.
Appeals judges ruled that establishing the whereabouts of an accused at the time crimes are taking place may be relevant in establishing that person’s control over the crimes in question. However, they added, this does not mean that for an accused to be held responsible they must physically be present when the crimes are taking place.
The defense had further argued that the trial chamber should have taken into account mitigating factors, such as Ntaganda’s suffering during the Rwandan genocide. The appeals judges disagreed that the trial chamber had committed errors when assessing such factors.
Ntaganda’s trial was the first at the ICC where a commander was charged with rape and sexual violence committed against child soldiers under his command. In the appeal, the defense faulted trial judges for failing to concretely assess Ntaganda’s “limited degree of participation” in the five sexual violence crimes he was convicted of. The defense contended that the conviction decision made no finding that Ntaganda had any advance, contemporaneous, or subsequent knowledge of the rapes and sexual slavery of civilians or child soldiers or that he concretely contributed to the rapes.
The defense argued that, while the trial chamber found that there were three child soldiers subjected to rape and sexual slavery, none of these victims was near Ntaganda at the time of the crimes, “or at virtually any other time.”
In the appeals ruling, the judges rejected Ntaganda’s claim that there were no child soldiers within his escort and affirmed that his militia recruited, enlisted, and used children under 15 years in hostilities.
Further, the Appeals Chamber determined that Ntaganda was personally involved in the rapes, the rapes were common knowledge, and Ntaganda knew of the sexual violence inflicted on individuals under the age of 15 that were part of the UPC/FPLC.