International Criminal Law – Joint Program Master Thesis
If Not Rapist, War Criminal?
Assessing the Legality and Implications of the ICC’s Jurisdictional Decision in Ntaganda
Taylor Booth 12944777 tb2812@columbia.edu Supervisor: Sergey Vasiliev
June 1, 2020
Abstract: The Appeals Chamber of the ICC’s decision to exercise jurisdiction over intra-party
conduct in Prosecutor v. Bosco Ntaganda staked out novel legal ground and promptly sent ripples through academia. The decision interpreted the Rome Statute to allow for prosecution of intra-party conduct as the war crimes of rape and sexual slavery, but in doing so implicated the traditional framework of international humanitarian law as a whole. Many impugned the decision as unwarranted judicial activism; however, a reassessment of that critique is in order. This thesis assesses the validity of the Ntaganda decision and argues that, given the project of international criminal law generally, and the victim-centric model of the Rome Statute specifically, the decision is not just legally sound, but a welcome step toward modernizing the traditional war crime paradigm. Chapter I will introduce the case and establish key research questions. Chapter II will assess the pre-Ntaganda legal landscape as it relates to victims and perpetrators of war crimes, in order to orient the Appeals Chamber’s decision. Chapter III will address the decision and its scope; and Chapter IV will assess the legal soundness of the ruling and the implications for the future. Viewing international criminal law as an ongoing project, this thesis argues that the Ntaganda ruling is an important step toward furthering the key ICC objectives of:
encouraging domestic responsibility for atrocity crimes and, when that fails, remaining a relevant backstop prepared to adjudicate those crimes as they arise in the modern context.
Table of Contents
I. INTRODUCTION ... 4
A. RESEARCH QUESTIONS AND OBJECTIVES ... 5
B. METHODOLOGY... 5
C. STRUCTURE... 6
II. PRE-NTAGANDA LANDSCAPE: ORIENTING THE APPEALS CHAMBER DECISION WITHIN THE WAR CRIMES FRAMEWORK ... 6
A. LEGAL SOURCES ADDRESSING INTRA-PARTY CONDUCT ... 7
i. The Geneva Conventions of 1949 and Additional Protocols ... 7
ii. The Rome Statute ... 9
B. LEGAL APPROACHES TO THE REGULATION OF INTRA-PARTY CONDUCT... 11
i. The “Traditional Approach” ... 11
ii. The Trend Toward Regulation of Intra-Party Conduct ... 13
III. NTAGANDA JURISDICTIONAL DECISION: LEGAL RATIONALE AND SCOPE ... 15
A. FACTUAL AND PROCEDURAL BACKGROUND ... 15
B. APPEALS CHAMBER DECISION... 18
C. SCOPE... 20
IV. ASSESSING THE LEGAL SOUNDNESS OF THE APPEALS CHAMBER DECISION ... 23
A. RAPE AND SEXUAL SLAVERY UNDER THE ROME STATUTE ... 24
B. INTRA-PARTY CONDUCT WITHIN THE ESTABLISHED FRAMEWORK OF INTERNATIONAL LAW ... 28
i. Applicable Treaty Provisions ... 30
ii. Applicable Case Law ... 32
iii. Addressing the Principle of Legality Problem ... 32
1. The Unique Nature of Custom Determination in International Criminal Law ... 33
2. The Decision Does Not Violate Nullum Crimen Sine Lege Protections ... 35
C. IMPLICATIONS FOR FUTURE WAR CRIME PROSECUTION ... 37
V. CONCLUSION ... 39
I. INTRODUCTION
The body of positive law and custom forming International Humanitarian Law (“IHL”) has been building upon itself for centuries. The deep-rooted origin of this field is both a blessing and a curse. The definitive texts on the law of war, the Geneva Conventions, were crafted in a geopolitical and technological context increasingly unrecognizable today. Though the entrenched nature of the Geneva regime 1 is a positive example of international consensus, the drafters of
IHL’s authoritative documents could not have fathomed warfare in its present form – whether it be the nature of armed forces, the weapons used, or those permitted to don a uniform.
This tension between the positive instruments of IHL and the changing nature of modern warfare arises in a moment when International Criminal Law (“ICL) and its instrumentalities are shifting toward a victim-centric model of justice.2 The Appeals Chamber (“AC”) of the
International Criminal Court’s (“ICC”) recent jurisdictional decision in Prosecutor v. Bosco Ntaganda demonstrates this very tension.3 Bosco Ntaganda is the former Deputy Chief of Staff
and Commander of Operations of the Patriotic Forces for the Liberation of Congo (“FPLC”), an armed rebel group that operated in the Democratic Republic of Congo (“DRC”) from 1993-2004.4 The case garnered attention for the Prosecutor’s unique decision to charge, and the AC’s
decision to exercise jurisdiction over, Counts 6 and 9, the war crimes of rape and sexual slavery. The decision interpreted IHL to regulate conduct among members of the same armed force—testing the outer limits of the Geneva Regime and challenging the traditional notion of a war crime “victim.” Though the Geneva Regime has proven adaptable in the past, 5 the question
1 The “Geneva Regime” refers to the 1949 Conventions and the 1977 Additional Protocols. 2 See generally Thomas Antkowiak, An Emerging Mandate for International Courts:
Victim-Centered Remedies and Restorative Justice, 47 STAN.J.INT’L LAW 279 (2011).
3 Prosecutor v. Bosco Ntaganda, Judgment on the appeal of Mr Ntaganda against the “Second
decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9”, Appeals Chamber, No. ICC-01/04-02/06 (June 15, 2017)(“Ntaganda AC Ruling”).
4 HUMAN RIGHTS WATCH, Bosco Ntaganda (2009)
https://www.hrw.org/topic/international-justice/bosco-ntaganda#.
5 See generally Prosecutor v. Tadić, IT-94-1-AR72, Decision on the Defence’s Motion for
Interlocutory Appeal on Jurisdiction, Appeals Chamber (Oct. 2, 1995) (finding Common Article 3 of Geneva Conventions applicable in non-international conflicts).
remains whether the ICC’s determination will actually redefine the war crime paradigm, or function as another mark against an institution that faces the specter of dwindling legitimacy.6
a. Research Questions and Objectives
The objectives of this research are: to further contribute to the analysis of the Ntaganda decision; address key critiques of the AC’s ruling; and assess the soundness of the legal
rationale. In pursuit of those objectives this thesis will attempt to answer the key question of whether the Ntaganda ruling provides a viable legal framework for future war crime prosecution. In doing so, the following will: explore the existing doctrinal framework of ICL as it relates to the prosecution of intra-party war crime; assess the legal soundness of the Ntaganda ruling within that framework; and analyze the ways in which the ruling expands or operates outside that framework.
b. Methodology
This thesis uses a classical legal research method and engages in doctrinal research from an internal perspective—analyzing the implications of Ntaganda on the rights, duties, and powers of legal stakeholders. The research draws from the core texts, treaties, and practices comprising IHL and applies those legal sources via the instruments of ICL. The limitations of this method lies in the nature of ICL itself and the manner in which various legal sources are used in different forums, by different actors. In the case of Ntaganda, the difficulty was that IHL and ICL have slightly different aims and applicability. Key examples of this are the assessment of the formation of customary international law versus the assessment of customary international criminal law, 7 as well as the question of how to apply principles regarding states’ responsibility
6 See generally Luca Poltronieri, Intra-Party Sexual Crimes Against Child Soldiers as war
crimes in Ntaganda, Tadić Moment, or Unwarranted Exercise of Judicial Activism? 60 QIL 50 (2019).
7 See Yudan Tan, The Identification of Customary Rules in International Criminal Law, 34:2
to curb particular behavior (the Geneva framework) to statutes ascribing individual criminal responsibility (the Rome Statute). 8
Given those concerns, this research will engage in a descriptive accounting of the existing legal framework and critically analyze how that framework relates to the issues raised in
Ntaganda. It will also briefly employ a prescriptive approach regarding my own assessment of the impact of the ruling on the larger “project” of ICL. This mixed methodology ensures that the analysis is adequately rooted in legal doctrine while acknowledging and advancing the justice aims 9 of ICL as a field.
c. Structure
The following will argue that the Ntaganda decision is a well-reasoned first step toward a realignment of the traditional war crime paradigm, and narrowly tailored enough to keep ICC jurisprudence adequately tethered to IHL while still giving domestic jurisdictions a framework to address previously unpunished behavior. Chapter II will address the evolution of war crime jurisprudence as it relates to the status of victims and perpetrators and set the pre-Ntaganda legal stage, assessing where the decision stands in the current legal framework. Chapter III will
address the legal rationale and scope of the decision itself; and Chapter IV will assess the legal soundness of that rationale and the implications for the future—concluding that, despite alarmist commentary, the ruling itself is quite narrowly tailored and indicative of an ICC that is fulfilling its stated purpose, rather than engaging in unwarranted judicial activism.
II. PRE-NTAGANDA LANDSCAPE: ORIENTING THE APPEALS CHAMBER DECISION WITHIN THE WAR CRIMES FRAMEWORK
In order to assess the implications of the Ntaganda decision it is important to first
understand the pre-existing legal framework regarding victims and perpetrators of war crimes in IHL. The so-called “traditional” approach to IHL polices conduct between adverse parties or
8 See Michael Bothe, War Crimes in CASSESE ET AL.,THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT:ACOMMENTARY 392 (2002) (noting Geneva Conventions were meant to leave the definition of crimes to national jurisdictions, making their “actual usefulness as a basis for the definition of a crime which is directly applicable by a criminal court…open to question”).
9 See, e.g., Saqib Jawad, Objectives of International Criminal Law and Jurisdiction of the ICC,
against protected individuals. 10 However, a recent trend toward the criminalization of intra-party
conduct in ICL, coupled with the AC’s Ntaganda decision, indicates that the traditional
framework is not as ironclad as detractors would suggest. 11 The following will explore both the
legal sources governing war crimes and the legal approaches to war crime prosecution prior to the Ntaganda decision.
a. Legal Sources Addressing Intra-Party Conduct
Both the traditional approach and the approach taken by the AC in Ntaganda, derive from the same foundational texts. The Geneva Conventions and the Rome Statute serve as the basis of this analysis, but legal scholars and jurists also look to key tribunal and domestic case law, as well as state practice.
i. The Geneva Conventions of 1949 and Additional Protocols
The Geneva Conventions of 1949 and Additional Protocols I and II of 1977 (“AP I” and “AP II”) form the backbone of modern humanitarian law.12 Most contemporary war crime
statutes, both at the international and domestic level, criminalize grave breaches of the Geneva Conventions.13 The 1949 Conventions consist of the Convention on Wounded and Sick in Armed
Forces in the Field (“Geneva I”), Convention on Wounded, Sick, and Shipwrecked of Armed Forces at Sea (“Geneva II”), Convention on Prisoners of War (“Geneva III”), and the Convention on Civilians (“Geneva IV”). Given the importance of the Geneva Regime, scholars commenting on Ntaganda have mined the 1949 Conventions and Protocols for any language indicating the drafters’ intentions regarding which parties may be perpetrators or victims of war crimes, or if such a status requirement exists at all.
10 See, e.g., Poltronieri, supra note 6 at 51.
11 See, e.g., Kevin Heller, ICC Appeals Chamber Says A War Crime Does Not Have to Violate
IHL OPINIO JURIS (June 15, 2017)
http://opiniojuris.org/2017/06/15/icc-appeals-chamber-holds-a-war-crime-does-not-have-to-violate-ihl/.
12 The 2005 Additional Protocol III deals primarily with the distinctive emblem of the Red Cross
and is not included in this inquiry.
13 See, e.g., U.N. Security Council, Statute for the International Criminal Tribunal for the
Former Yugoslavia, art. 2, adopted by U.N.S.C Res. 827 (as amended Oct. 28, 2009); 18 U.S.C. § 2441(c).
Neither of the four conventions or the subsequent protocols definitively address the status requirement issue. Geneva I extends protection to the wounded and sick “members of the armed forces…in all circumstances…without any adverse distinction”14—defining “member of armed
forces” generally as any member of any armed force that is a party to the conflict.15 Geneva II
mirrors that language, with the addition of provisions specific to naval warfare.16 Geneva III
defines “prisoners of war” as those members of “armed forces of a party to the conflict” who are in the power of the “enemy.”17 Geneva IV is perhaps the most explicit on victim status, defining
protected persons as “those who at any given moment…find themselves, in case of a conflict or occupation, in the hands of a party to the conflict or occupying power of which they are not nationals.”18 Though this language may seem to implicate intra-party conduct, Geneva IV
concerns civilians, not combatants, so again it fails to squarely address the issue.19 Finally
Common Article 3 (“CA3”), extends protection in non-international conflicts to persons who are “taking no active part in the hostilities,” “have laid down their arms,” or been placed “hors de combat” by wounds, sickness, or any other cause.20 CA3 protections apply “in all circumstances”
and “without any adverse distinction.”21
In regard to the Additional Protocols of 1977, AP I expands the protections provided in international conflicts and AP II addresses non-international conflicts. 22 The two protocols
mirror the language, or lack thereof, of Geneva Conventions I-IV concerning victim and
perpetrator status. AP I protects any “persons in the power of the adverse party,” 23 and reiterates
14 Geneva I, art.12. 15 Id., art.13(1).
16 See Geneva II, art.13. 17 Geneva III, art.4. 18 Geneva IV, art.4.
19 See INT’L COMM. OF THE RED CROSS, Commentary to Convention IV Relative to the Protection
of Civilian Persons in Time of War, 45 (1958) (noting art. 4 applies to either “(1) ' enemy nationals ' within the national territory of each of the Parties to the conflict and (2) ' the whole population ' of occupied territories” which precludes nationals of the occupying power).
20 Geneva Conventions I, II, III, IV, art.3.
21 Id. (based on “race, color, religion or faith, sex, birth or wealth, or any other similar criteria”). 22 Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection
of Victims of International Armed Conflicts (“AP I”), June 8, 1977; Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of
Non-International Armed Conflicts (“AP II”), June 8, 1977.
prior protections for hors de combat. 24 AP II contains the fundamental guarantee language of
CA3 and extends similar protection to the wounded and sick, mandating that medical care shall be extended with “no distinction” on any grounds.25
Finally, in addition to the provisions of the Geneva Conventions themselves, another creation of treaty law relevant to intra-party conduct is the Martens Clause. Some iteration of the Martens Clause can be found in the preambles of the 1809 and 1907 Hague Conventions, AP II, and AP III, and in the bodies of Geneva Conventions I, II, III, IV and AP I. 26 The clause
provides that in cases not covered explicitly by treaty language, neither combatants nor civilians are deprived of protection, because wartime conduct is also regulated by the “principles of the law of nations, as they result from the usages of international law, from the laws of humanity, and from the dictates of public conscience.”27 Views differ as to the scope of the Martens Clause,
but the general premise has become a matter of customary international law—namely that it is not possible for any codification of IHL to be complete “at any given moment.”28 As such, IHL
instruments should not be viewed as permitting conduct which is not expressly prohibited within, or rendered inapplicable to subsequent developments to which common principles can be
applied. 29 Put simply, “in cases not covered by the law in force, the human person remains under
the protection of the principles of humanity.” 30
ii. The Rome Statute
Aside from the Geneva Regime, most relevant to the issue in the Ntaganda case is the treatment of intra-party conduct in the Rome Statute (“RS”) itself. Art. 8 draws from two distinct sources of law when defining a war crime: (1) the Geneva Framework and (2) the “established
24 Id. arts.1; 85(3)(e). 25 AP II, arts.4; 7.
26 Convention IV Respecting the Laws and Customs of War on Land, Preamble, Oct. 18, 1907
(“Hague Convention”); Geneva I, art.63; Geneva II, art.62; Geneva III, art.142; Geneva IV, art.158; AP I, art.1(2); AP II, Preamble.
27 Hague Convention, Preamble; see also Rupert Ticehurst, The Martens Clause and the Laws of
Armed conflict, No. 317 INT’L R.RED CROSS (1997).
28 INT’L COMM.RED CROSS, Commentary on the Additional Protocols to the Geneva
Conventions (1987) 38, 39 ¶ 55.
29 See id.
framework of international law.” 31 The article is separated into four sections: 2(a) relating to
violations of the Geneva Regime in international armed conflicts; 2(b) relating to serious
violations of customary international law in international armed conflicts; 2(c) relating to serious violations of CA3 in non-international conflicts (“NIACs”); and 2(e) relating to serious
violations of customary international law in NIACs. Each provision also contains an enumerated list of prohibited conduct. 32 Despite that duality, the interpretive conundrum in Ntaganda arose
in part from the fact that some chapeaux provisions relating generally to the “laws and customs” of IHL as governing a particular enumerated crime, have sub-sections which reference the Geneva Conventions as a metric to measure unenumerated conduct—creating a possible ambiguity as to which framework, custom or conventions, governs.33
The chapeaux of Art. 8 34 does not contain victim status requirements and uses the
parlance of the Geneva Regime, referring to “protected persons” and “hors de combat” where applicable. 35 Certain enumerated sub-crimes however do include “status” language (such as
“hostile party,” “adverse party,” or “enemy”).36 Conversely, there are numerous provisions that
provide protections without reference to either party.37 Where the object of the conduct is not
expressly included in the language of a provision (i.e. attacks against “civilians” or conduct
31 Rome Statute of the International Criminal Court (“RS”), art.8, July 17, 1998; see Bothe,
supra note 8 at 386.
32 See RS art.8(2)(a)(i)-(viii); 2(b)(i)-(xxvi); 2(c)(i)-(iv); 2(e)(i)-(xii). 33 See id. arts.8(2)(b)(xxii); 8(2)(e)(vi).
34 Id. arts.8(1); (2)(a)-(e). 35 Id. arts.8(2)(a)(v);(2)(c).
36 See id. art.8(2)(b)(x)(prohibiting physical mutilation of those in the hands of an adverse party);
(xi) (killing or wounding treacherously individuals belonging to the hostile nation or army);(xiii) (destroying or seizing the enemy’s property);(xiv)(declaring abolished, suspended, or
inadmissible in a court of law the rights and actions of the nationals of the hostile
party);(xv)(compelling nationals of the hostile party to take part in the operations of war); art. 8(2)(e)(ix)(killing or wounding treacherously a combatant adversary);(xi)(subjecting persons who are in the power of another party to the conflict to physical mutilation);(xii)(destroying or seizing property of an adversary).
37 See id. art.(2)(b)(xvi)(pillaging);(xvii)(employing poisonous weapons);(xviii)(employing
poisonous gases); (xix)(employing dum dum bullets);(xx)(employing weapons causing
superfluous injury); (xxi)(committing outrages upon personal dignity);(xxii)(committing rape, sexual slavery, enforced prostitution, forced pregnancy and enforce sterilization); art.8(2)(c)(i)-(iv)(victim is “taking no active part in the hostilities”); art.8(2)(e)(v)(pillaging); (vi)(sexual crimes listed above).
against an “adverse” party) the language of neither the statute nor the ICC Elements of Crimes explicitly mandates a victim status requirement.38
b. Legal Approaches to The Regulation of Intra-Party Conduct
With a mind toward the competing and cumulative legal sources at play, the prevailing approach to war crime prosecution (the “Traditional Approach”) adheres strictly to the inter-party framework—the idea that perpetrators and victims are not, and cannot be, on the “same side.” 39 The following will explore the legal underpinnings of the Traditional Approach as well
an emerging trend away from the traditional legal framework.
i. The “Traditional Approach”
According to the Traditional Approach, to blur the line regarding
combatant-on-noncombatant crime would not only impermissibly violate the principle of nullum crimen sine lege, 40 but would also fly in the face of established state practice. 41
The legality argument from the traditional perspective is that intra-party conduct has not been regulated under IHL in the past, and to do so now would criminalize conduct that was not prohibited when it was committed. This argument hinges on the idea that members of the same “side” share the same combatant status.42 Traditionalists therefore view the Geneva Regime as
regulating conduct between armed forces and protected classes of individuals only.43 In the
38 See, e.g., INT’L CRIMINAL COURT, Elements of Crimes (2011)(“Elements of Crimes”),
art.8(2)(b)(xvi) (pillaging) (requiring only that “perpetrator intended to deprive the owner” of the property); 8(2)(b)(xxi)(outrages upon personal dignity)(“The perpetrator humiliated, degraded, or otherwise violated the dignity of one or more persons”).
39 See, e.g., Andrew Clapham, Human Rights Obligations for Non-State-Actors: Where Are We
Now? in DOING PEACE THE RIGHTS WAY:ESSAYS IN INTERNATIONAL LAW AND RELATIONS 11, 16 (Fannie Lafontaine & Francois Larocque eds., 2018)(“International humanitarian law does not cover how an armed group treats its own forces.”).
40 For an example of this legality argument see Michael Newton, Contorting Common Article 3:
Reflections on the Revised ICRC Commentary, 45 GA.J. OF INT’L &COMP.L. 513, 527 (2017). 41 Id. at 515.
42 As scholarly thinking on this issue evolves and NIACs proliferate, there is a nuanced view that
IHL militates “humane treatment” toward members of the “same party” but only during the time when the victim is not directly participating in armed hostilities. See Jann Kleffner, The
Beneficiaries of the Rights Stemming from Common Article 3 in CLAPHAM ET AL.,THE 1949 GENEVA CONVENTIONS 436 (2015).
context of NIACs, adverse party distinctions are even more critical to traditionalists because NIACs involve individuals of the same nationality and actors must be operating under a clear rubric.44 One of the most oft-cited proponents of the Traditional Approach, Antonio Cassese,
links the view to the conflict nexus requirement, noting that if an act is committed to “pursue the aims of [an armed] conflict” 45 then logically it could not be committed against a comrade in
arms.46 Therefore conduct regulated by IHL must be “committed…against a protected person.”47
Traditionalists also assert that intra-party conduct should not be regulated by IHL 48
because it is best handled by either human rights law or domestic legislation. 49 In their view, to
expand IHL to govern intra-party conduct would leave potential defendants in the dark as to what conduct is sanctionable, in what context, and by which court. 50 Therefore, the expansion of
IHL to govern intra-party conduct engages in unnecessary gap filling where no lacuna exists, 51
and if gaps do exist, they are best filled by pre-existing domestic or human rights frameworks. 52
In addition to policy rationales for maintaining the status quo, traditionalists argue that state practice counsels against the criminalization of intra-party conduct as a war crime. 53 The
lack of prosecutions of intra-party conduct is posited as support that state practice counsels against intra-party prosecutions. This argument relies almost exclusively on two domestic cases
44 See EVE LA HAYE,WAR CRIMES IN INTERNAL ARMED CONFLICTS 119 (2008) (“The laws of
war applicable in internal armed conflicts bind members of armed forces…vis-à-vis their opponents…”).
45 CASSESE ET AL.,INTERNATIONAL CRIMINAL LAW 78 (3rd ed. 2013).
46 This formulation does not necessarily align with the evolution of conflict nexus jurisprudence.
See, e.g., Prosecutor v. Tadić, IT-94-1-AR72, Decision on the Defence’s Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber (Oct. 2, 1995)(“Tadić Appeals
Decision”) ¶ 573 (“[N]or is it necessary that the crime alleged takes place during combat [or] that it be part of a policy or of a practice officially endorsed or tolerated by one of the parties.”).
47 CASSESE ET AL.,INTERNATIONAL CRIMINAL LAW, supra note 45 at 78.
48 See, e.g., Poltronieri, supra note 6.
49 TILMAN RODENHAUSER,ORGANIZING REBELLION:NON-STATE ARMED GROUPS UNDER
INTERNATIONAL HUMANITARIAN LAW,HUMAN RIGHTS LAW, AND INTERNATIONAL CRIMINAL
LAW 121-215 (2018) (arguing that HRL is better fit to address intra-party violence).
50 Marco Longobardo, The Criminalization of Intra-Party Offenses in Light of Some Recent ICC
Decisions on Children in Armed Conflict, 19 INT’L CRIM.LAW R. 600, 608-09 (2019).
51 Newton, supra note 40 at 522-23.
52 Clapham, supra note 39 at 4 (arguing human rights reporting is a better vehicle to combat
intra-party conduct).
53 Newton, supra note 40 at 522 (noting that ICRC Commentary on CA3 expands IHL to
from 1948 and 1949, Motosuke and In Re Pilz. 54 Though both cases do address intra-party
conduct squarely, they were decided in the wake of WWII, before the Geneva Regime was widely ratified, and stand on questionable legal grounds. 55 As the following section will address,
this minimal domestic case law has allowed the international waters to muddy—with some courts taking the Traditional Approach and others taking steps toward expanding the scope of the field.
ii. The Trend Toward Regulation of Intra-Party Conduct
The proliferation of NIACs in the 21st century has forced international tribunals to
reexamine how traditional legal frameworks can continue to fulfill their purpose of protecting vulnerable populations during war time.56 This is true both in the field of ICL generally, and war
crime prosecution specifically.
In-keeping with a professed focus on victims, ICL has shifted toward an embrace of prosecution of intra-party conduct at the tribunal level,57 or at least toward divorcing ICL from
the strictures of IHL.58 This shift is most obvious in regard to crimes against humanity
(“CAH”).59 The Extraordinary Chambers in the Courts of Cambodia grappled on several
occasions with the intra-party violence issue. In Case 001, the Trial Chamber found that a “civilian population” need not be comprised entirely of civilians to meet the requirements of a
54 Trial of Susuki Motosuke, Netherlands Temporary Court Martial at Amboina (Jan. 28, 1948)
(regarding a Japanese officer who ordered the shooting of a Dutch national who had joined Japanese forces); In re Pilz, District Court of the Hague, Special Criminal Chamber (Dec. 21, 1949) (regarding a German army doctor who failed to provide medical treatment to a wounded German soldier). For further discussion see infra Sec. IV.b.ii.
55 Ondrej Svacek, Brothers and Sisters in Arms As Victims of War Crimes: Ntaganda Case
Before the ICC, 8 CYIL 346, 350 n. 25 (2017).
56 See, e.g, Tilman Rodenhauser, Torturing and Raping ‘Brothers in Arms’: International Law
and Intra-Party Violence, OPINIO JURIS (Mar. 15, 2016).
57 See Yvonne McDermott & Coman Kenny, The Expanding Protection of Members of a Party’s
Own Armed Forces Under International Criminal Law, 68:4 INT’L AND COMP.L.QUARTERLY
(2019).
58 See, e.g., Leila Sadat, Putting Peacetime First: Crimes Against Humanity and the Civilian
Population Requirement, 31 EMORY INT’L REV. 197, 199 (2017) (Th[e] assumption [that
international criminal law is a ‘subspecies of international humanitarian law’] is demonstrably incorrect.”).
CAH. 60 In regard to the Khmer Rouge’s purging of its own troops, the ECCC Pre-Trial Chamber
found in Cases 003 and 004 that the customary understanding of CAH during the period in question did not require an inquiry into victim status.61 The International Tribunal for the Former
Yugoslavia (“ICTY”) also addressed the issue noting, “one fails to see why only civilians and not also combatants should be protected by the[] rules [concerning CAH].”62 Though war crimes
are more welded to IHL than CAH, the momentum in the field is toward protection regardless of status. 63
In regard to war crimes in particular, international case law leading up to the Ntaganda decision signals a willingness of judges to reexamine the intra-party conduct issue—to mixed results. Cases from the Special Court for Sierra Leone (“SCSL”), the ICTY, and the ICC represent the confused pre-Ntaganda landscape.64 Perhaps most relevant to Ntaganda is the
SCSL’s decision in Prosecutor v. Sesay, finding that the killing of a member of the perpetrator’s own armed forces did not constitute a war crime under the court’s statute. 65 Though the Trial
Chamber did opine that a prohibition on intra-party conduct is “trite,” it held that IHL does not protect members of the same armed group. 66 Following the Sesay decision, the ICTY decided
60 Prosecutor v. Kaing Guek Eav, Trial Judgment, 001/18-07-2007-ECCC/TC (July 26, 2010) ¶¶
304-305, 322 (finding that although members of armed forces can be victims of CAH); see also Prosecutor v. Nuon Chea, Khieu Samphan, No 002/19-09-2008/ECCC, Trial Judgment (Aug. 7, 2014) ¶¶ 183-186.
61 See Decision on Appeal Against The Notification On The Interpretation Of ‘Attack Against
The Civilian Population’ In The Context Of Crimes Against Humanity With Regard To State’s Or Regime’s Own Armed Forces, 003 07 09 2009 ECCC QCIJ, Pre-Trial Chamber (July 18, 2017); see also Call for Submissions by the Parties in Cases 003 and 004 and Call for Amicus Curiae Briefs, 003/07-09-2009-ECCC-OCIJ, Office of the Co-Investigating Judges (April 19, 2016).
62 Prosecutor v. Kupreškić, et al., Judgement, IT-95-16-T (Jan. 14, 2000) ¶ 547; McDermott &
Kenny, supra note 57 (discussing ECCC jurisprudence); but see Prosecutor v. Blaškić, Appeals Judgement, IT-95-14-A (July 29, 2004) ¶ 110 (linking “civilian” to art.50 of AP I).
63 Sadat, Putting Peacetime First, supra note 58 at 207 (“The Court should therefore look not
only to a victim’s formal status but the actual situation of the individual or population targeted for abuse….”).
64 Prosecutor v. Sesay et al., Trial Judgment, SCSL-2004-15-T (March 2, 2009); Prosecutor v.
Kvočka et al., Appeals Chamber Judgement, IT-98-30/1-A (Feb. 28, 2005); Prosecutor v. Katanga and Ngudjolo Chui, Confirmation of Charges, Pre-Trial Chamber I, ICC-01-04-01/07 (Sept. 30, 2008) ¶¶ 329; 329 n. 430.
65 Statute of the Special Court for Sierra Leone, art.3 (2000); Sesay Trial Judgment, supra note
64 ¶¶ 1451, 1453.
Kvočka, finding a Serbian guard guilty of the war crime of murder for the killing of a half-Serbian detainee. 67 The Appeals Chamber dismissed the Defense’s argument that the victim lost
IHL protections via his shared nationality with the perpetrator, and instead found that the victim was protected by CA3 regardless of his “status”. 68 Finally, in 2008 the Pre-Trial Chamber
(“PTC”) of the ICC tangentially addressed the issue at the confirmation phase of the Katanga case. 69 In regard to the war crime of pillage, the PTC found that “as [with] any war crime, the
crime of pillage is committed against the adverse party.” 70 The PTC’s language is especially
relevant to Ntaganda because the chamber explicitly noted that the language in Art. 8(2)(b)(xvi) “does not require” that the pillager be an “enemy,” however the “doctrine of war crimes”
counsels toward an adverse party requirement. 71
III. NTAGANDA JURISDICTIONAL DECISION: LEGAL RATIONALE AND SCOPE
Against that backdrop of an emerging trend toward regulating intra-party conduct
through ICL, the ICC Prosecutor opened a case against Bosco Ntaganda in 2014 and charged Mr. Ntaganda with crimes related to conduct committed by members of his armed group against their fellow soldiers. 72 The following section will address prior chambers’ decisions, but focus
primarily on the AC’s decision to extend jurisdiction over the war crimes of rape and sexual slavery.73
a. Factual and Procedural Background
As noted previously, Bosco Ntaganda is the former Deputy Chief of Staff and
Commander of Operations of the FPLC, an armed rebel group that operated in the DRC from
67 Kvočka et al., Appeals Chamber Judgment, supra note 64. 68 Id. ¶ 561.
69 Katanga Confirmation of Charges, supra note 64 at ¶ 329. 70 Id. n. 430 (emphasis added).
71 Id.; see Elements of Crimes at 26, art.8(2)(b)(xvi) (referring to the victim only as “the owner
of the property”).
72 ICC Case Information Sheet: Prosecutor v. Bosco Ntaganda (last updated Nov. 2019),
https://www.icc-cpi.int/CaseInformationSheets/NtagandaEng.pdf.
1993-2004.74 A feature of the FPLC was its forced conscription of child soldiers. 75 The charges
at issue concerned the treatment of child soldiers whose official functions ranged from taking part in hostilities to acting as domestic servants. 76 The status of the victims in this case raised
two novel jurisprudential hurdles: what is the “combatant” status of child soldiers, given that conscription of child soldiers is itself a war crime; and putting that status aside, what protections are afforded those children who were actively taking part in hostilities. Ultimately the Prosecutor chose to separate the issues, charging Mr. Ntaganda separately for the war crime of conscripting child soldiers under Art. 8(2)(e)(vii) and the war crimes of rape and sexual slavery under Art. 8(2)(e)(vi).77 While each chamber took a slightly different approach to the child soldier issue, the
central question remained jurisdiction over intra-party conduct as a war crime.
The issue began at the confirmation of charges stage and was heard before Pre-Trial Chamber II (“PTC”), the Trial Chamber (“TC”) and finally the Appeals Chamber (“AC”) before jurisdiction over Counts 6 and 9 was finally affirmed. 78 The Prosecution argued that the victims
were afforded protections against sexual violence regardless of their combatant status, based on protections guaranteed to all persons involved in a NIAC and protections provided to children especially.79 The Defense argued that the victims were members of an armed group and therefore
not afforded intra-party protection under IHL, and to extend such protection would violate the principle of legality.80 Though the greater focus of this inquiry is the AC’s decision, it is
important to briefly explore the PTC and TC determinations in order to assess the legal soundness of the AC’s conclusion.
74 Mr. Ntaganda was involved in several armed groups that changed affiliation. See HUMAN
RIGHTS WATCH, Bosco Ntaganda (2009) https://www.hrw.org/topic/international-justice/bosco-ntaganda#.
75 See, e.g., INT’L JUSTICE MONITOR, Former Child Soldiers Recounts Lubanga Meeting (May
17, 2010) https://www.ijmonitor.org/2010/05/former-child-soldier-recounts-lubangas-meeting-with-upc-commanders/.
76 See Prosecutor v. Ntaganda, Decision on the Charges, Pre-Trial Chamber II (June 9, 2014) ¶¶
81-82.
77 See Prosecutor v. Ntaganda, Document Containing Charges, ICC-01/04-02/06 (Jan. 10, 2014)
¶¶ 100-108 (“DCC”)
78 For a detailed procedural history of the appeal see Ntaganda AC Ruling ¶¶ 3-15. 79 Ntaganda DCC, supra note 77 at ¶ 107 n.12 (citing art.4 of AP II and CA3).
80 Prosecutor v. Ntaganda, Defense’s Consolidated Submissions, Trial Chamber VI,
The PTC based its grant of jurisdiction on baseline protections for all parties during armed conflict under CA3 and Art. 4 of AP II. 81 The Chamber rejected the Defense’s view that
the victims were combatants based on a “membership test” and found instead that in order for “participation” in armed hostilities to preclude the protections of CA3 and AP II, the victim must be actively participating at the time of the conduct in question.82 In the PTC’s view, 83 this
rotating status was warranted by the separate and concurrent protections afforded to children and child soldiers under international law. 84
The TC affirmed jurisdiction on a different rationale. Upon a plain reading of the RS as well as a review of the travaux preparatoires of Art. 8, 85 the chamber concluded that the victim
status requirements of the Geneva Regime did not apply to Arts. 8(2)(b) or 8(2)(e) 86—the
chapeaux provisions of the crimes of rape and sexual slavery—and that nothing in the “established framework of international law” limited this interpretation. 87 Per the TC, the
prosecution of conduct included under Arts. 8(2)(b) and (2)(e) (which refer to the “established framework of international law”) was intended to be viewed separately from conduct constituting a “grave breach” of the Geneva Conventions or a “serious violation” of CA3. 88 In regard to the
“established framework of international law” 89 jus cogens prohibitions against rape and other
forms of sexual violence do not, and should not, depend on the status of the victim. 90 The
81 See Ntaganda Decision on the Charges, supra note 76 at ¶¶ 76-82.
82 Defense’s Consolidated Submissions, supra note 80 at ¶¶ 17-32; Ntaganda Decision on the
Charges, supra note 76 at ¶ 77.
83 Id. ¶¶ 78, 80.
84 For legal analysis of the PTC’s reasoning see, e.g., Patricia Sellers, Ntaganda: Re-alignment of
a Paradigm, INSTITUTE OF INT’L HUMANITARIAN LAW (2018).
85 Prosecutor v. Ntaganda, Second Decision on the Defense’s Challenge to the Jurisdiction of the
Court in Respect of Counts 6 and 9, Trial Chamber VI, ICC-01-04-02/06-1707 (“Ntaganda TC Ruling”) (Jan. 4, 2017) ¶¶ 40, 42, 44.
86 Id. ¶ 40. 87 Id. ¶¶ 44-53.
88 Id. ¶¶ 40, 42 (interpreting the drafting history of the Elements of Crimes as demonstrating that
reference to the Geneva regime in both 8(2)(b)(xxii) and 8(2)(e)(vi) was highly debated and intended to set a gravity threshold) (citing Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court 332 (2002)); see also GERHARD WERLE, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW 393 (2d ed. 2009).
89 Ntaganda, TC Ruling, supra note 85 at ¶ 45.
90 Id. ¶¶ 46; 47 (“While most of the express prohibitions of rape and sexual slavery under
Chamber also invoked the Martens Clause 91 as governing in “situations not covered by specific
agreements” and protecting “all persons in the power of a Party to a conflict.” 92 b. Appeals Chamber Decision
The AC affirmed the TC’s decision on a similar rationale, finding “in the absence of any general rule excluding members of armed forces from protection against violations by members of the same armed force, there is no ground for assuming the existence of such a rule specifically for the crimes of rape or sexual slavery.” 93 The Defense challenged the TC’s interpretation of
the RS as well as its analysis of custom; however, the weight of the challenge centered on the TC’s analysis of the “established framework of international law.” The Defense criticized the TC for failure to define “any methodology” for determining what constituted the “framework”94 of
international law and for a lack of sources demonstrating the absence of status requirements.95
The AC approached the question in a two-tiered manner: considering first whether the “established framework of international law” permitted “the introduction of additional
elements”96 to the crimes listed in Art. 8(2)(b) and (e); and second, if so, whether victim status
was indeed a required element of a war crime under customary law.97 The Chamber found that
based on the ordinary meaning and drafting history of Art. 8(2)(b)(xxii) and (e)(vi), the victims of rape and sexual slavery need not be “protected persons” under either the “grave breaches” regime or CA3; and that international law pertaining to war crimes generally, and rape and sexual slavery specifically, did not preclude that outcome.98
combat…the Chamber does not consider those explicit protections to exhaustively define, or indeed limit, the scope of the protection.”).
91 See Ticehurst, supra note 27.
92 Ntaganda TC Ruling, supra note 85 ¶ 47 (citing AP I, art.75). For further commentary on the
TC ruling see Svacek, supra note 55 at 354; McDermott & Kenny, supra note 57; Longobardo, supra note 50 at 627 (arguing the misapplication of the Martens Clause).
93 Ntaganda AC Ruling ¶ 65.
94 Appeal from the Second decision on the Defence’s challenge to the jurisdiction of the Court in
respect of Counts 6 and 9 Document, ICC-01/04-02/06-1754 (“Document in Support of Appeal”) (Jan. 26, 2017) ¶ 71.
95 Id. ¶¶ 64-68; 46-53 (jus cogens and Martens clause critique); 54-63 (ICRC Commentary) 96 Ntaganda AC Ruling ¶ 52 (emphasis added); see id. ¶ 54 (the additional element in this case
being recourse to international law regardless of whether any lacuna exists).
97 Id. ¶ 55.
In regard to statutory interpretation, the AC largely adopted the TC’s reasoning. Per the TC, the separation of Art. 8 into four sections indicates that the prosecution of conduct under 8(2)(b) and (2)(e) was intended to separate certain conduct in the RS from conduct constituting a “grave breach” of the Geneva Conventions or a “serious violation” of CA3. 99 Furthermore, no
victim status is required for rape and sexual slavery under articles (2)(b)(xxii) and (2)(e)(vi), 100
which in the AC’s view indicated that the reference to the Geneva Conventions serves only to set a gravity threshold for “other crimes,” 101 an assertion which is supported by the drafting
history.102 While the AC conceded that neither the text nor the drafting history demonstrate that
the provisions were written to “dispense with” status requirements,” there was similarly no debate “on whether protection under this provision should be limited” to victims with a certain status. 103
Regarding the established framework of international law, the AC found that while Art. 21 allows recourse to customary and conventional law regardless of whether any lacuna exists,104
that does not in turn mean that status requirements are in fact an additional element of a war crime.105 The Chamber stated that IHL “concerns itself with protecting vulnerable persons,”
noting that the reason protection is more often in reference to harm suffered at the hands of the enemy is because the nature of violence during an armed conflict is such that it is usually
directed against enemy parties—not because there is a status requirement.106 The Chamber noted
that Geneva Conventions I and II provide protection in many circumstances regardless of party affiliation, and the fact that little case law has addressed intra-party conduct, did not “in and of itself, reflect[] the fact that status requirements exist as a general rule.” 107 In fact, the AC found
the case law cited by the Defense suggesting otherwise to be unpersuasive.108 With regard to the
99 Id. ¶ 40. 100 Id. ¶ 40. 101 Id. ¶ 49. 102 Id. ¶ 42. 103 Id. ¶ 50. 104 Id. ¶ 53. 105 Id. ¶¶ 54, 55. 106 Id. ¶ 60. 107 Id.
108 Id. ¶ 62 (dispensing with the Pilz and Motosuke); See Special Court of Cassation, In re Pilz,
Judgment (July 5, 1950); Trial of Susuki Motosuke, Netherlands Temporary Court Martial at Amboina (Jan. 28, 1948).
issue of rape and sexual slavery, given that prohibitions against rape and sexual slavery in armed conflict are “without a doubt” well established under IHL, the AC found that “there is no
conceivable reason” to reach the conclusion that because these protections are most often
provided in the context of protecting civilians and hors de combat, that they are therefore limited to those victims and those victims only. 109
The primary critiques of the AC’s ruling are the Chamber’s failure to adequately address the principle of legality or explain its custom identification methodology. Commentators have particularly taken issue with the endorsement of the TC’s reliance on abstract legal maxims to expand IHL protection.110 While later sections will address these problems in greater detail,111
the primary legality problem concerns the Chamber’s unwillingness to engage with state practice and opinio juris. Instead, the AC takes a negative approach, noting that established law is
permissive on the issue, i.e. that the prosecution of intra-party conduct is not expressly prohibited. Scholars have also been quick to comment that customary IHL protections only extend to two classes of victims – hors de combat and civilians—and therefore the general IHL protections against rape and sexual slavery noted by both the TC 112 and AC are not in fact
general guarantees, but rather enumerated protections for those particular groups only.113 Finally,
the AC side-stepped the question of direct participation in hostilities114 by noting that
prosecution would require “only that the [victim] were taking no active part in hostilities at the material time,” but not addressing how the “material time” would be determined. 115
c. Scope
109 Ntaganda AC Ruling ¶¶ 64, 65.
110 See, e.g., Svacek, supra note 55 at 354; Poltronieri, supra note 6 at 59 (questioning the
normative value of the Martens Clause and its use to extend liability); see also A. Cassesse, The Martens Clause: Half a Loaf of Simply Pie in the Sky? 11 EURO.INTL L. 187, 208 (2000).
111 See infra Sec. IV. b. iii.
112 See Longobardo, supra note 50 at 627 (finding the invocation of jus cogens outside the
context of treaty law or the law on state responsibility “appears to be…promotional…for rhetorical ends.”); see Svacek, supra note 55 at 354 (noting jus cogens nature of an act does not inherently give a court jurisdiction over it); see also Carlo Focarelli, Promotional Use of Jus Cogens: A Critical Appraisal of Jus Cogens’ Legal Effects, 77 NORDIC J. OF INT’L L 429-59 (2008).
113 Heller, supra note 11 (noting that CA3 is not an example of general protections, but only
applicable to those not taking part in hostilities, or hors de combat.)
114 Svacek, supra note 55 at 357. 115 Ntaganda AC Ruling ¶ 69.
One important critique of the AC’s ruling is that it is an impermissible expansion of IHL.116 However, a careful examination of the opinion indicates otherwise. While it is true that
the case has sparked a debate that may eventually lead to an expansion of IHL, the ruling itself is limited in scope by the language of the decision as well as the structure of the RS.
First, in regard to the AC’s decision, the crimes charged in Ntaganda encompass a unique factual situation in which there are layers of criminality. These layers are due to the fact that the victims were illegally conscripted soldiers, also children, and then also subjected to rape and sexual slavery. As such, the AC had to consider the illegality of conscription, on top of jus cogens protections against rape, on top of the special status of children in IHL. While the AC does not explicitly limit its ruling to either child soldiers or to sexual crimes, it will not be difficult for future defendants to distinguish the fact pattern in Ntaganda from their own. Furthermore, in the decision on the merits, TC IV limited its holding to “the specific
circumstances of time and space relevant to the confirmed charges.”117 Additionally, jurisdiction
over the charges rests first on a textual interpretation of Art. 8(2)(b)(xxii) and (2)(e)(vi) and there are few other similarly structured provisions in Art. 8. Meaning that, though the ruling is not explicitly limited to rape and sexual slavery, there are few other textual provisions in the statute under which to charge intra-party conduct in the same manner.
The AC also explicitly limits the scope of the ruling via the armed conflict nexus requirement. 118 In the Chamber’s view, any “undue expansion [of IHL] will be prevented by a
rigorous application of the nexus requirement.”119 In doing so, the AC squarely addresses the
critique that the decision would improperly blur the lines between ordinary crimes and war crimes. 120 In practice, a rigorous application of the nexus requirement will have the effect of
limiting prosecution of intra-party conduct to those actions which would have been either just as impermissible prior to Ntaganda (injuring the wounded, sick, or hors de combat) or will only occur in very particular situations (internment or purging of military ranks, enlisting child soldiers into sexual slavery). TC IV also engages in this limiting analysis in its decision, noting
116 Newton, supra note 40.
117 Prosecutor v. Bosco Ntaganda, Judgment, ICC-01/04-02/06-2359 (Trial Chamber VI) (July 8,
2019)(“Ntaganda TC Judgment”) ¶ 984.
118 Ntaganda AC Ruling ¶¶ 67, 68. 119 Id. ¶ 68.
that “[the Chamber] is not generally pronouncing on whether [intra-party] sexual abuse…constitutes a war crime.” 121
In addition to the careful language of the opinion, the RS itself has many features limiting the impact of the ruling from impeding on domestic jurisdiction. Regarding future cases at the ICC, the scope of Ntaganda will be limited by Art. 17’s gravity requirement, the chapeaux requirements of Art. 8, and the lack of stare decisis noted in Art. 21(2). First, one-off cases of intra-party conduct would not meet the gravity threshold required to bring charges before the ICC and thus would remain the province of domestic law (one-off meaning in this case
individual instances of intra-party criminal conduct, absent the context of a mass atrocity event). Second, Art. 8(1) extends jurisdiction over war crimes “in particular when committed as part of a plan or policy or part of a large-scale commission of such crimes.”122 While this “particular”
language is non-binding,123 it gives future chambers the discretion to limit Ntaganda’s ruling
under this plan or policy framework. Finally, the ICC does not adhere to stare decisis, therefore prior decisions are not binding on future chambers, 124 and Arts. 22 and 10 further limit the
application of ICC decisions outside of the RS context—meaning expansion will depend on the initiative of future tribunals and their interpretation of their own operative statutes.125 While the
absence of binding stare decisis does not mean that the ICC does not, or should not, adhere to judicial consistency, it does give future chambers the discretion to depart from the AC ruling. This possibility in turn may allay concerns of states regarding infringement on domestic
jurisdiction, while also incentivizing those states to expand their own conception of war crimes lest the ICC exercise jurisdiction.
Finally, the principle of complementarity will prevent the usurpation of domestic
prosecution that commentators have predicted. 126 Per Art. 17, if a domestic jurisdiction is shown
121 Ntaganda TC Judgment ¶¶ 984, 985 (emphasis added). 122 RS art.8(1).
123 See Knut Dörmann, War Crimes under the Rome Statute of the ICC in MAX PLANCK
YEARBOOK OF UNITED NATIONS LAW, Vol. 7, 349-50 (A. Von Bogdandy & R. Wolfrum eds.
2003) (drafting history indicates that “plan, policy, and scale, are not elements or jurisdictional prerequisites for war crimes” but can be taken into account).
124 RS art.21(2) (The Court may apply principles and rules of law as interpreted in its previous
decisions)(emphasis added).
125 Id. art.10; art.22(3).
to be adequately investigating, prosecuting, or has already punished, the same individual for substantially the same conduct, then complementarity renders the case inadmissible at the ICC.127 Thus, if domestic jurisdictions are functioning properly, Ntaganda should not radically
expand the reach of the ICC in any way outside of the current framework.
Thus, the AC’s rationale moors the decision to exercise jurisdiction over the war crimes of rape and sexual slavery primarily in the plain language of the RS itself—finding that the Statute can be read to police intra-party conduct as a war crime, and that nothing in the “established framework of international law” prohibits that reading. Though the primary concern in the post- Ntaganda scholarship is its unwarranted expansion of IHL, the language of the ruling as well as the limitations built into the RS, render the ruling relatively limited in scope.
IV. ASSESSING THE LEGAL SOUNDNESS OF THE APPEALS CHAMBER DECISION
The question for the AC in Ntaganda was two-fold: did the text of the RS provide
jurisdiction over intra-party rape and sexual slavery; and if so, did the “established framework of international law,” foreclose this finding by imposing a status requirement on the victims of war crimes. Though the impact of the ruling will only truly be understood once future tribunals decide similar cases, considering the unique circumstances of the fact pattern; the provisions charged; and the RS itself, the following sections will argue that Ntaganda rests on sound legal principles—in regard to both (a) the interpretation of the RS and (b) the analysis of custom.
The forthcoming sections will analyze the AC’s legal reasoning using the interpretative framework laid out in Arts. 21 and 22 of the RS.128 This analysis will necessarily be informed by
Art. 38 of the Statute of the International Court of Justice (“ICJ”), as well as by the general interpretive principles contained in Arts. 31 and 32 of the Vienna Convention on the Law of Treaties (“VCLT”). 129 Art. 38 of the ICJ statute largely mirrors the hierarchy of applicable law
in the RS, but further reinforces recourse to supplementary materials in the field of international law generally, as well as defines the custom identification process that most international courts
127 Id.; see Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11
Judgment on the Appeal of Mr. Al-Senussi Against the decision of PTC I, Appeals Chamber, (Jul. 14, 2014) (regarding “substantially same conduct”).
128 RS arts.21, 22.
129 Vienna Convention on the Law of Treaties (“VCLT”) arts.31, 32 (1969); Statute of the
engage in. 130 In regard to the VCLT, while the convention is not expressly mentioned in the RS,
the interpretive methodology outlined in Arts. 31 and 32 reflects a generally accepted method of both treaty and statutory interpretation,131 and ICC judges have made recourse to these
provisions in the past. 132 Read together, the RS, ICJ Statute, and VCLT provide a fuller picture
of the interpretive steps that represent best practices for an international judge.
a. Rape and Sexual Slavery Under the Rome Statute
Art. 21 of the RS establishes the hierarchy of applicable law before the ICC and requires that the court apply (1) the RS, Elements of Crimes, and the Rules of Procedure and Evidence; (2) “where appropriate” applicable treaties and the principles of international law; and finally (3) “general principles of law” derived from the national legal systems. 133 Art. 22 informs this
hierarchy by providing traditional criminal law protections requiring crimes to be “strictly construed” and reiterating the principles of nullum crimen sine lege and in dubio pro reo. 134
Thus, while Art. 21 allows for recourse to international legal principles, “the Rome Statute reigns supreme.”135
The crux of the issue in Ntaganda was the subject matter jurisdiction conferred by Arts. 8(2)(b)(xxii) and (2)(e)(vi). Following the interpretive method outlined above, the first step for the ICC would be to examine the text of the RS, the Elements of Crimes, and the Rules of
130 ICJ Statute art.38(d).
131 See, e.g., CONGRESSIONAL RESEARCH SERVICE, Statutory Interpretation: General Principles
and Recent Trends (Rep. 97-589) (Sept. 24, 2014)(“Statutory Text” section).
132 Prosecutor v. Katanga, Judgment Pursuant to Article 74 of the Statute, ICC 01/04-01/07
(Mar. 7, 2014) ¶ 43 (citing other appeals chamber and pre-trial chamber decisions relying on VCLT principles); see Caroline Davidson, How to Read International Criminal Law: Strict Construction and the Rome Statute of the International Criminal Court, 91 ST.JOHN'S L.REV. 54 (2017).
133 RS art.21. 134 Id. art.22(1), (2).
135 Davidson, supra note 132. The idea that the ICC operates within its own framework is further
underscored by arts. 10 and 22(3). RS art.10 (“[N]othing in this part shall be interpreted as limiting or prejudicing in anyway developing international law for purposes other than this Statute”); art.22(3)(“This article shall not affect the characterization of any conduct as criminal under international law independently of this statute.”).
Procedure and Evidence.136 In-keeping with general interpretative practice, as codified in VCLT
arts. 31 and 32, the court would engage with those sources by first attempting to discern a plain reading of the operative terms, viewed in “their context” and in light of the instrument’s “object and purpose.” 137 After assessing the text’s plain meaning, recourse may be made to
supplementary means of interpretation to resolve ambiguities. 138 The relevant provisions of Art.
8(2) define war crimes as:
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely…
…(xxii) Committing rape, sexual slavery … or any other form of sexual violence also constituting a grave breach of the Geneva Conventions.
(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law,
namely…
…(vi) Committing rape, sexual slavery … and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions.
Neither the chapeaux of para. (2)(b) or (e), nor the sub-text of (b)(xxii) and (e)(vi) require victims be “protected persons” under the Geneva Conventions, or “persons taking no active part in hostilities” under CA3. This omission is in stark contrast to the chapeaux of para. (2)(a) and (c) which impose status requirements.139 In regard to the specific acts of rape and sexual slavery,
the crimes are explicitly enumerated apart from the references to the Geneva Conventions and CA3. Per Art. 21’s hierarchy, the textual structure of the Statute indicates that rape and sexual slavery exist as separate crimes from those considered “other forms of sexual violence”. The Elements of Crimes reinforces this reading by not including any status requirement for rape and sexual slavery.140
Given that the Defense’s appeal challenged the TC’s textual interpretation of the Statute, the AC’s inquiry proceeds second to address the claimed ambiguity in the provisions by
136 RS art.21; see also RS art.9(1). 137 VCLT art.31.
138 Id. art.32.
139 RS art.8(2)(a)(“Grave breaches of the Geneva Conventions…namely any of the following
acts against persons or property protected under the … relevant Geneva convention”); (2)(c)(“serious violations of article 3 common to the four Geneva Conventions…”).
reviewing the drafting materials, which indicate a lack of consideration of status requirements at all. 141 In light of that fact, the Defense’s contention that the drafting materials do not provide
“any support” for the view that the provisions in question were “written to dispense with status requirements” is technically correct, 142 but effectively moot, given that the drafting history does
not indicate any substantive discussion of the matter. Viewed this way, critiques that the AC resorted improperly to drafting materials are misplaced, because the rationale of the opinion does not turn on those materials and recourse to secondary materials is proper practice when an
ambiguity is raised. 143
Assuming arguendo that the AC’s use of drafting materials was an error, 144 had the
Chamber adhered more closely to the VCLT principles and first engaged in an object and purpose inquiry it arguably would have arrived at the same conclusion. In reality, the AC adhered closely to the TC’s narrow object and purpose interpretation,145 and adopted the
contention that the purpose of reference to the Geneva Regime in Art. 8 (2)(b)(xxii) and (2)(e)(vi) was to qualify the catch-all crime of “any other form of sexual violence” and set a gravity threshold. Though the intention of the following is not to argue for, or justify, overly broad readings of “object and purpose,” whether one takes a conservative view, that the ICC exists to “punish people found guilty of international crimes through a fair process,” or the liberal view that the ICC exists to “end impunity,” 146 there can be no mistaking that one of the
purposes of a stand-alone international criminal court, and thus its implementing statute, is
141 Ntaganda AC Ruling ¶ 50.
142 Document in Support of Appeal ¶ 45.
143 VCLT art.32; Longobardo, supra note 50 at 631 (critical of the over-reliance on preparatory
materials).
144 Id. (regarding revolving hors de combat status). 145 Ntaganda AC Ruling ¶ 22.
146 See Sadat, Putting Peacetime First, supra note 58 at 262 (noting ICC purpose of “enhancing
the expressive and normative function of ICL”); see also EMILY CRAWFORD &ALISON PERT, INTERNATIONAL HUMANITARIAN LAW (2015) (noting the purpose of modern IHL is to ensure
“that in times of armed conflict, all persons who may be affected by the conflict, on any side, in any way, are covered by the ambit of the law”); Longobardo, supra note 50 at 632-33(“The object and purpose of IHL and international criminal law provisions require the application of IHL to intra-party conduct.”). For examples of critique advocating for a more conservative approach see Davidson, supra note 132; Göran Sluiter, Atrocity Crimes Litigation: Some Human Rights Concerns Occasioned by Selected 2009 Case Law, 8 NW. J. INT’L HUM. RTS. 248, 257–58 (2010).
acknowledgment of, participation of, and justice for victims of atrocity crimes. 147 This focus on
victim participation at the ICC is unique in comparison to other international criminal tribunals and explicitly supported throughout the RS—via both procedural and substantive provisions.148
The victim-centric model coupled with provisions regarding the primacy of the RS before the ICC, indicate the unique stature of the Court within the field. Viewed in this context, whether one takes the narrow approach employed by the TC and AC, or the broadest—and admittedly the most potentially problematic—approach, the AC’s ultimate interpretation that the text of Art. 8(2)(b)(xxii) and (2)(e)(vi) function to protect victims of enumerated war crimes regardless of their party membership is legally sound.
Furthermore, in line with the principle of effectivity (Ut res magis valeat quam pereat)149
the AC’s interpretation that the text’s reference to the Geneva Conventions and CA3 provides a gravity threshold, rather than a status requirement, leads to a clarifying understanding of the Statute that defines the bounds of the enumerated crimes and provides a metric by which to determine whether to criminalize “other” sanctionable conduct—the Defense’s reading in
contrast creates redundancies.150 While the Defense, as any hypothetical defendant would, claims
an ambiguous reading of the disputed text, which in turn implicates the principle of in dubio pro reo reflected in Art. 22(2)151, the redundancies created by the alternative reading offered by the
Defense weaken their arguments regarding ambiguity in the language and favor the AC’s conclusion.
Though the use of “object and purpose” can be a slippery slope 152 it is increasingly clear
that to adhere to strictly textual readings of IHL instruments will be to render them obsolete in
147 See, e.g., Antkowiak, supra note 2.
148 See, e.g., RS Preamble, arts.15, 43, 53, 54, 57, 64 (procedural protections regarding
participation in trial proceedings themselves); arts.68 (regarding victim protection and
participation), 75 (reparations), 79 (trust fund for victims), 93 (regarding protection of victims and witnesses)(substantive protections indicating victim-centric purpose).
149 See Svacek, supra note 55 (finding the Defense’s proposed interpretation would render the
operative clause in 8(2)(e) meaningless).
150 See Ntaganda AC Ruling ¶ 26; Document in Support of Appeal ¶¶ 35-3; see also
Longobardo, supra note 50 (finding the AC’s conclusions “sound and desirable”).
151 RS art.22(2).
the face of changing conflict patterns. 153 While this evolutionary view of ICL may sometimes
place judges in the uncomfortable position of proactively developing law, international criminal judges occupy a different role and have a different mandate than domestic criminal judges, 154
and if the procedural safeguards inherent in complementarity and nullem crimen sine lege provisions hold true, ICL protections can adapt to modern warfare without also sacrificing defendants on the altar of progress. 155 Furthermore, Art. 31 of the VCLT embraces a purposive
approach. This method was used extensively by the ad hoc tribunals to rethink NIACs, 156 and
respecting the aforementioned limitations inherent in the language of the ruling as well as the RS itself, is not inherently unsound. 157 In fact, Antonio Cassese, a proponent of the more
conservative approach outlined above, noted:
[When] doubts arise as to the classification of a criminal offense…a teleological
interpretation of IHL and ICL may lead to the proper classification of the offense. Indeed, the aim of the whole corpus of rules of IHL is to safeguard as much as possible the life and limb of persons caught in the maelstrom of armed violence. ICL supports and enforces this aim, by providing for the prosecution and punishment of all those who by their conduct run counter to that aim and imperil persons involved in armed conflict. 158
Given the unique nature of ICL outlined above, the AC’s interpretation of Arts.
8(2)(b)(xxii) and (2)(e)(vi) followed the accepted interpretive methods when determining that the text of the RS itself does not contain victim status requirements for the crimes of rape and sexual slavery.
b. Intra-Party Conduct Within the Established Framework of International Law
153 See Rodenhauser, supra note 56 (advocating for stronger consideration of object and
purpose).
154 See Theodor Meron, On Being An International Criminal Judge, Amer. ACADEMY OF ARTS & SCIENCES (Winter 2016).
155 See analysis infra Sec.IV.b.iii.2.
156 See, e.g., Tadić Appeals Decision ¶¶ 72–78.
157 Mark Drumbl, The Future of International Criminal Law and Transitional Justice, in
SCHABAS,MCDERMOTT &HAYES,ASHGATE RESEARCH COMPANION ON INT’L CRIM.LAW 541,
540-544 (2012) (“International Criminal law would benefit from a shift from legalism to justice.”).
