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Guest post by Ido Rosenzweig: ICC’s Ntaganda Decision on the Protection of Own Forces from Rape and Sexual Slavery – Much Ado over Something?

March 7, 2017

We are grateful to Ido Rosenzweig for this guest post on the ICC’s recent decision in the Ntaganda case dealing with the protection of own forces from rape and sexual slavery. Ido Rosenzweig is a research fellow and a PhD candidate at the Hebrew University of Jerusalem’s Faculty of Law; Director of Research (Terrorism, Belligerency & Cyber) at the Minerva Center for the Rule of Law under Extreme Conditions, University of Haifa; and co-founder and chairman of ALMA – Association for the Promotion of International Humanitarian Law.

General

On January 4, 2017, ICC Trial Chamber VI issued an interesting and important decision in the case of Ntaganda with regard to the question of whether rape and sexual slavery against the perpetrator’s own forces constitute war crimes under the Rome Statute. This decision might have significant implications on the development of the protection of international criminal law towards the under regulated international framework of the protection of one’s own forces. In this short piece I address some core issues of the decision at hand.

Background

The procedure leading to this decision goes back to the confirmation of charges hearing that took place between February 10 and 14, 2014. During the confirmation hearing, the defense argued that counts 6 and 9 could not be confirmed. Court 6 referred to the crime of “[R]ape of UPC/FPLC child soldiers, a war crime, punishable pursuant to article 8(2)(e)(vi)”. Count 9 referred to the crime of “[S]exual slavery of UPC/FPLC child soldiers, a war crime, punishable pursuant to article 8(2)(e)(vi) (count 9)” could not be confirmed[1].

The Defense argued that the Prosecution was “trying to expand the application of Article 8(2)(e)(vi) to situations that are analogous, arguing an extensive interpretation of Article 4 of Additional Protocol II to the Geneva Conventions adopted 8 June 1977” and that “the protection under Article 4 applies only if a child soldier is captured by the opposing party… Article 4(3) in no way can be used to interpret Article 8 to expand the scope thereof to victims who might be part of the same group as the perpetrator of the crime”. The Defence also asserted that IHL “is not intended to protect combatants from crimes committed by combatants from the same group. Such crimes come under national law and human rights law.” And therefore, according to the Defence, “the charges found in counts 6 and 9 [could not] be confirmed in accordance with the principle of legality”.[2]

Nevertheless, the Pre-Trial chamber confirmed all charges against Ntaganda, including those challenged by the Defense.

Following the Confirmation Decision, Ntaganda filed an application before Trial Chamber VI challenging the jurisdiction of the Court in respect to count 6 and count 9. At first the Trial Chamber rejected the request and held that it was a matter to be addressed at trial. However, following an appeal by the Defence, the Appeal Chamber ruled that “the question of whether there are restrictions on the categories of persons who may be victims of the war crimes of rape and sexual slavery is an essential legal issue which is jurisdictional in nature”. As a result, the case went back to Trial Chamber VI.

In its challenge of the Pre-Trial Court’s decision, the Defence’s main argument was based on the notions that according to Article 3 common to the Geneva Conventions war crimes may not be committed by members of an armed force against fellow members of the same armed force, and that the alleged victims were members of the armed forces, but were not taking direct part in the hostilities.

The Decision

The Trial Chamber concluded the following:

Despite the fact that the Defence, Prosecution and the Representative of the Victims all made their submissions with respect to non-international armed conflict, the Trial Chamber chose to analyse the relevant offences, in respect to both non-international and international armed conflicts, on the basis that the Chamber could re-characterise the conflict to international at a later stage. As a result, in addition to looking at article 8(2)(e)(vi), the Chamber also analysed article 8(2)(b)(xxii) .

Article 8(2)(e)(vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions.

Article 8(2)(b)(xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;

The Defence’s claim for violation of the principle of legality was dismissed. The Trial Chamber held that the codification of the Rome Statute provided sufficient positive legal basis to prosecute on its own. No violation of the principle of legality was expected solely for the reason that a specific crime might not “have been subject to prior criminalization pursuant to a treaty or a customary rule of international law”.

The Chamber rejected the Defence’s claim that the victim of a war crime in non-international armed conflict, must be a protected person within the meaning of common article 3. The Chamber held that it is clear “that not all victims of war crimes listed in Article 8(2)(e) need to be protected persons for the purposes of Common Article 3”. As examples, the Chamber referred, inter alia, to specific violations against those who are taking direct part in the hostilities such as the prohibition on treacherous killing or wounding of a ‘combatant adversary’ and the denial of quarter under articles 8(2)(e)(ix) and (x) of the Rome Statute.

The Chamber noted that there is a separation distinction with regard to the scope of the victims between article 8(2)(c) that refers directly to serious violations of common article 3 and article 8(2)(e)(vi) which refers to sexual violence constituting serious violations of common article 3 as an addendum to the main list of crimes. Similarly the situation with regard to article 8(2)(a) which refers to crimes against protected persons in an international armed conflict, and article 8(2)(b)(xxii) that refers to conduct “any other form of sexual violence also constituting a grave breach of the Geneva Conventions”.

The Chamber held that in situations of armed conflicts – prosecution of rape and sexual slavery were not intended to be limited only as grave breaches or serious violations of Common Article 3. Any other reading into articles 8(2)(b)(xxii) and 8(2)(e)(vi) would run contrary to the structure of article 8 to the Rome Statute which extends the list of war crimes beyond the framework of grave breaches or serious violations of the Geneva Conventions.

It also noted that references to specific victim status criteria is included in articles 8(2)(a) [persons … protected under the provisions of the relevant Geneva Convention] and 8(2)(c) [“persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat”], but not included in articles 8(2)(b)(xxii) and 8(2)(e)(vi). This analysis was supported by references to the Elements of Crimes and the drafting history of these clauses as well as previous case law (e.g. Trial Chamber II in the Katanga case). Therefore, the Chamber held that it considered that “the Court’s statutory framework [did] not require the victims of the crimes contained in Article 8(2)(b)(xxii) and (e)(vi) to be protected persons in the (limited) sense of grave breaches or Common Article 3.”

Even when looking outside of the scope of the Rome Statute, the Chamber held that under both codified and customary international humanitarian law (IHL), the prohibition against rape and sexual slavery is very wide and explicit. Such prohibition goes back to the 1863 Lieber Code (“‘all rape’ against persons in the invaded country is prohibited”), the 1949 Geneva Conventions and the 1977 Additional Protocols (e.g. Article 27 of the Fourth Geneva Convention of 1949; Article 76 of Additional Protocol I; and Article 4(2)(e) of Additional Protocol II), as well as more general protection on the personal dignity of any person in the power of a Party to the conflict (API article 75). It recalled that the same conclusion can be reached from the jurisprudence of the ICTY, in the Furundžija  case, in which it was held that rape or other forms of sexual assault are prohibited under customary international law at all times, and in times of armed conflict constitute serious violations of IHL, thus qualifying as war crimes.

Although most of the prohibitions or rape and sexual slavery under IHL appear in the context of protecting civilians and persons hors de combat, in the power of a party to the conflict, the chamber concluded that such explicit protection should not be consider as exhaustive, and it should not limit the scope of protection against rape and sexual slavery. Such interpretation was derived, inter alia, from the Martens clause.  The Chamber held that any other interpretation would be contrary to the rationale of IHL to limit the suffering, damage and harm to the required extent from actions that are militarily necessary or will result in a definite military advantage. However, raping and sexually enslaving children under the age of 15 years or indeed any person would never bring any accepted military advantage, nor can there ever be a necessity to engage in such conduct, including against person who may be liable to be targeted and killed under IHL.

Therefore, the Chamber concluded that “[M]embers of the same armed force are not per se excluded as potential victims of the war crimes of rape and sexual slavery, as listed in Article 8(2)(b)(xxii) and 8(2)(e)(vi)”.

Analysis

In the decision at hand, the Chamber provided a very interesting, albeit expansive analysis of the prohibition of rape and sexual slavery. By doing so, the Chamber took an important step towards regulating the un(der)-regulated area of the protection of one’s own forces under international law. The analyzed decision, especially when read in conjunction with the recent decision of the ECCC recognizing that crimes against humanity can be conducted against one’s own forces, suggests that the international law is moving towards extending the scope of protection to the members’ of one’s own forces.

Two aspects in the approach of the Chamber warrant special attention. Firstly, the decision not to limit the discussion solely to child soldiers or any other specific status under IHL. Secondly, the decision not to limit the analysis to a specific classification of conflict. Thus, the protection from rape and sexual slavery, is neither age nor status limited and incorporates combatants, members of armed groups and civilians alike. This enabled the Chamber to distance itself from the complicated discussion about who should be considered as taking active part in the hostilities among the child soldiers (a further discussion on this issue can be read in Yvonne Mcdermott’s interesting analysis here).

Nevertheless, this decision must be read within its own context. The Chamber’s decision to extend the protection towards one’s own forces, important as it may be, is currently limited to specific prohibitions of rape and sexual slavery. Moreover, the decision is extensively based on the open wording of articles 8(2)(b)(xxii) and 8(2)(e)(vi). Therefore, any applicability of other war crimes against one’s own forces seems to be kept under regulated at this point.

Violations such as declaring no quarter, pillage or employing gases and poison are only a few examples of war crimes that, much like the prohibition of rape, do not include direct reference to the adversary forces. However, by focusing specifically on rape and sexual slavery, the chamber has kept that question unanswered.

Lastly, it should be noted that the decision of the Chamber has been subjected to an appeal by the Defence. The main arguments in the Defence’s submission relate to the extension of the scope of war crimes to include crimes committed within the same armed forces or group is unjustified, and not supported neither by the wording of article 8 nor by state practice. It seems safe to say that with regard to this important question, the end has yet to come.

[1] Although the decision also addressed jurisdictional issues with regard to article 19(4) procedure, I will not address that part of the decision in this post.

[2] Pre-Trial Chamber decision page 27, lines 5-25. https://www.legal-tools.org/en/browse/record/66fbeb/

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