Ntaganda case: ICC Trial Chamber VI rejects challenge to jurisdiction over two war crimes counts
On 3 January 2017, Trial Chamber VI of the International Criminal Court ("ICC" or "Court"), in the case of The Prosecutor v. Bosco Ntaganda, found that it has jurisdiction over counts 6 and 9 (alleged war crimes of rape and sexual slavery of child soldiers) and rejected the Defence's challenge thereto. This decision relates only to the Chamber's authority to adjudicate the alleged conduct. The decision is without prejudice to the guilt or innocence of the accused which will be determined only at the end of the trial.
The Defence argued that Counts 6 and 9 do not fall within the subject matter jurisdiction of the Court considering that, according to Article 3 common to the Geneva Conventions of 1949, war crimes may not be committed by members of an armed force against members of the same armed force. Trial Chamber VI had initially ruled that the Defence's challenge did not constitute a jurisdictional matter and that it would address this question in the judgment. However, the Appeals Chamber decided that the challenge was jurisdictional in nature and remanded the matter back to Trial Chamber VI, which allowed the parties to make updated submissions.
After examining the Defence's submissions, as well as those of the Prosecutor and the Legal Representative of victims, ICC Trial Chamber VI found that limiting the scope of protection in the manner proposed by the Defence is contrary to the rationale of international humanitarian law, which aims to mitigate the suffering resulting from armed conflict. The Chamber further found that members of the same armed force are not as such 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 on the basis of the framework of international humanitarian law, or international law more generally. The Chamber concluded that "there is never a justification to engage in sexual violence against any person" and that "such conduct [rape and sexual slavery] is prohibited at all times, both in times of peace and during armed conflicts, and against all persons, irrespective of any legal status".
Therefore, the Chamber decided that it has jurisdiction over the alleged conduct described in Counts 6 and 9 of the charges without prejudice to whether such acts have taken place or to the accused's presumption of innocence.
Second decision on the Defence's challenge to the jurisdiction of the Court in respect of Counts 6 and 9
Background: Bosco Ntaganda, former alleged Deputy Chief of the General Staff of the Force Patriotiques pour la Libération du Congo [Patriotic Force for the Liberation of Congo] (FPLC), is accused of 13 counts of war crimes (murder and attempted murder; attacking civilians; rape; sexual slavery of civilians; pillaging; displacement of civilians; attacking protected objects; destroying the enemy's property; and rape, sexual slavery, enlistment and conscription of child soldiers under the age of fifteen years and using them to participate actively in hostilities) and five crimes against humanity (murder and attempted murder; rape; sexual slavery; persecution; forcible transfer of population) allegedly committed in Ituri, DRC, in 2002-2003. His trial opened on 2 September 2015. Mr Ntaganda is in the Court's custody.
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