THE PROSECUTOR v. BOSCO NTAGANDA: AN ANALYSIS

Authors:

Sanya Shah, Pravin Gandhi College of Law Mumbai

Neha Pandey, NLU Shimla

Ashwathi Menon, Dr. D.Y Patil College of Law

Sakshi Belwal, Assam University Silchar

Editor: Jasmine Emmanuel, GLC Thrissur



Introduction

Bosco Ntaganda, the fourth person to ever be convicted by the International Criminal Court situated in The Hague, was convicted on 13 counts of war crimes and 5 counts of crimes against humanity in 2019, and sentenced to 30 years of imprisonment. He was nicknamed “The Terminator” and was convicted for crimes such as murder, rape, sexual slavery, recruitment of child soldiers, and various other crimes.[1]

After being an active rebel and soldier for both Rwanda and DR Congo, Ntaganda became a militia leader in the northeastern region of DR Congo Ituri; he soon defected from the army and formed his own rebel group, the M23 rebel group. In 2006, he was accused of recruiting child soldiers by the International Criminal Court, and 7 years later in 2013, he surrendered to the American Embassy in Rwanda. A split and rising tensions in his rebel group led to his surrender, which was viewed by the public not as an act of honor, but rather cowardice.[2]

He was involved in numerous armed conflicts in both Rwanda and the Democratic Republic of Congo. Trial Chamber VI also found that the Union des Patriotes Congolais [Union of Congolese Patriots] (UPC) and its military wing, the Forces Patriotiques pour la Libération du Congo [Patriotic Force for the Liberation of Congo] (FPLC), were at all times involved in at least one non-international armed conflict with an opposing party, in Ituri from about 6 August 2002 to 31 December 2003 (these dates are an estimated guess).


A Focus on Murder and Attacks Against Civilians

During his time as a member of UPC-FPLC, Ntaganda first-handedly killed and ordered the killing of several civilians. When Sonia Bakar, the head of the investigation unit for the human rights department in the United Nations Mission in Congo, narrated her findings from her study in Ituri in 2002 and 2003, she stated that up to 250 murders and 18 cases of rape were recorded and attributed to the UPC.

During the trial, many witnesses who claimed to have witnessed daily harassment and attacks came forward. They claimed that UPC soldiers killed non-armed civilians belonging especially to the Lendu group. Others claimed that men, women, and children were executed frequently by soldiers. Due to the overwhelming number of people who claimed to have either experienced or witnessed these crimes, Ntaganda was pronounced guilty.[3]

A Focus on Sexual Slavery and Child Soldiers

The conviction for sexual slavery is the first in the International Criminal Court’s history.

It concerned count 6 and count 7 under Article 8(2)(e)(vi) of the Rome Statute.[4] Citing both the language and drafting history of Article 8, the ICC came to the conclusion that victims of war crimes of sexual slavery and rape in both non-international and international armed conflict need not be protected persons under Common Article 3 for the Court’s jurisdiction to be valid. Nor does any such requirement exist in the broader international legal regime.

Ntaganda, whose cruelty and violence earned him the nickname the ‘Terminator’, was also found responsible for raping and enslaving for sexual purposes underage girls, for recruiting troops under the age of 15, and for personally killing a Roman Catholic priest.

The Pre-Trial Chamber’s decision helps to end impunity for conflict-related sexual violence, by indicating that the rape and sexual slavery of child soldiers (and possibly, other combatants) by members of the same armed group can constitute war crimes under Article 8(2)(e)(vi) of the Rome Statute.[5]

This decision is significant from the gender perspective because the evidence that was found indicated that the child soldiers subjected to sexual violence in the UPC-FPLC were primarily, if not exclusively, females.

Commenting on Ntaganda’s sentencing decision, Anneke Van Woudenberg, executive director of Rights and Accountability in Development, said that she feels great relief that Ntaganda will be behind bars for a very long time.[6] The Ntaganda decision challenges a widely held belief that war crimes must be committed against those on the “other side” of the armed conflict. While the decision represents a missed opportunity to explore the meaning of Article 21(3) of the Rome Statute, it strengthens accountability for conflict-related sexual violence and helps child soldiers, particularly female child soldiers, from the dangers posed by members of their own armed group. In that sense, it is an important precedent for gender justice and for the protection of children in armed conflict more broadly.

No modern justification pardons the transgressions of child-related crimes under international humanitarian law. The Ntaganda facts reveal how the compounded peremptory harms of rape and of slavery accompany the infliction of war crimes related to child soldiers. Ntaganda does not sidestep nor evade registering the entirety of the criminal conduct.


Background Facts of the Case

Bosco Ntganda was the most infamously celebrated criminal that the world had seen. He was rightfully nicknamed as “the terminator” owing to the terror that he had spread in Ituri in the DRC. Ituri is a district of Orientale Province in the north east of the DRC, bordering Uganda, with population estimates ranging from 3.5 to 5.5 million people. In recent years, the DRC has seen horrific human rights abuses, outbreaks of diseases, widespread malnutrition, and the inhuman treatment of millions. Bosco Ntaganda, a Congolese rebel, is a key figure responsible for human rights violations in DRC.

Mr Ntaganda started his military career in Rwanda. He joined the armed wing of the RPF at the age of 17 with the purpose of overthrowing the then president of Rwanda, Juvénal Habyarimana. He indicated that he did so to engage in the fight against the oppression of the Tutsi. Ntaganda has actively participated in various armed groups in eastern Congo since the late 1990s. Eventually, he became a key military leader in the Democratic Republic of the Congo and maintained his power for over ten years.

In August 1998, a rebel movement, the RCD was formed, led by Ernest Wamba Dia Wamba, Mr Ntaganda was part of the foundation of the RCD.

In 2002 Ntaganda joined the Union of Congolese Patriots, a rebel group led by Thomas Lubanga, who was convicted by the ICC. This case is concerned with alleged conduct by Mr Bosco Ntaganda, as a member of the Union des Patriotes Congolais (‘UPC’) and its military wing, the Forces Patriotiques pour la Libération du Congo (‘FPLC’), in the events that took place in Ituri district of the DRC from on or about 6 August 2002 to on or about 31 December 2003[7].

During this period, Mr. Ntangada being the commanding officer orders the FPLC forces to murder civilians, to enlist children to join the FPLC forces, free pass to subject women to rape and sexual violence, to destroy and pillage property. Not only did he order his soldiers but he himself participated in the commission of these atrocities. Mr Ntaganda is charged with the responsibility, under various modes of liability, for 18 , including five of crimes against humanity and 13 of war crimes, namely murder and attempted murder as a crime against humanity and as a war crime; intentionally attacking civilians as a war crime; rape as a crime against humanity and as a war crime; sexual slavery as a crime against humanity and as a war crime; persecution as a crime against humanity; pillage as a war crime; forcible transfer of population as a crime against humanity; ordering the displacement of the civilian population as a war crime; and conscription, enlistment and use to participate in active hostilities of children under the age of 15 years as a war crime; attacking protected objects as a war crime, and destroying the enemy’s property as a war crime.[8]


Procedural History of the Case

The current case comes as a result of the Prosecutor’s investigation into the situation in the Democratic Republic of the Congo and the alleged crimes committed in the country since 1 July 2002. The Prosecutor requested an arrest warrant against Mr Ntaganda on 13 January 2006, but the application for a warrant was initially rejected by Pre-Trial Chamber I on 10 February due to the fact that Mr. Ntaganda was not deemed to be one of the “most senior leaders” in the DRC Situation. However, the warrant of arrest was later approved, on 7 August 2006. The reasons for this reconsideration are not clear. Later, he surrendered himself on


The Charges

Counts 1 and 2: murder and attempted murder as a crime against humanity and as a war

crime;

Count 3: intentionally attacking civilians as a war crime;

Count 4, 5, and 6: rape as a crime against humanity and as a war crime;

Count 7, 8, and 9: sexual slavery, as a crime against humanity and as a war crime;

Count 10: persecution as a crime against humanity;

Count 11: pillage as a war crime;

Count 12: the forcible transfer of population as a crime against humanity;

Count 13: Ordering the displacement of the civilian population as a war crime;

Count 14, 15, and 16: conscription, enlistment, and use to participate in active hostilities of

children under the age of 15 years as a war crime;

Count 17: attacking protected objects as a war crime; and

Count 18: destroying the enemy’s property as a war crime.[3]

These crimes were allegedly committed between 2002 and 2003 when Ntaganda was Deputy Chief of Staff for the FPLC. On June 15, 2017, the Appeals Chamber of the International Criminal Court, a three-judge bench consisting of Presiding Judge Olga Herrera Carbuccia, Judge Robert Fremr, Judge Chang-ho Chung, issued a significant judgment that found Ntaganda guilty on all the eighteen counts of war crimes and crimes against humanity.

Jurisdiction and Admissibility

The case was found to fall within the Court’s jurisdiction by Pre-Trial Chamber I, as the alleged conduct is a crime under the Rome Statute and took place after July 2002, in the region of Ituri in the territory of the DRC.

The case was judged by Pre-Trial Chamber I to be admissible on 7 August 2006, despite an initial finding in February 2006 that the “gravity threshold” was not met as Bosco Ntaganda was not one of the “most senior leaders” within the DRC situation.

Trial

The trial of Mr Ntaganda opened on 2 September 2015 and closing statements from 28 to 30 August 2018. Over the course of 248 hearings, the Chamber heard 80 witnesses and experts called by the Office of the ICC Prosecutor, Ms FatouBensouda, 19 witnesses called by the defence team lead by Mr Stéphane Bourgon and three witnesses called by the legal representatives of the victims participating in the proceedings, as well as five victims who presented their views and concerns. A total of 2 129 victims, represented by their legal counsel, Ms Sarah Pellet and Mr Dmytro Suprun from the ICC Office for Public Counsel for the Victims, participated in the trial after having been authorized by the Chamber to do so.

The Trial Chamber issued 347 written decisions and 257 oral decisions during the trial phase. 1791 items were admitted into evidence. After the presentation of evidence, the Chamber received written closing submissions from the parties and the Legal Representatives of Victims; in total more than 1 400 pages. The total number of filings of the parties and participants and the Chamber's decisions is more than 2300 filings.[9]


Judgment

On 8 July 2019, Trial Chamber VI found Mr Bosco Ntaganda guilty, beyond a reasonable doubt, of 18 counts of war crimes and crimes against humanity, committed in Ituri, DRC, in 2002-2003. Trial Chamber VI found that the Union des Patriotes Congolais [Union of Congolese Patriots] (UPC) and its military wing, the Forces Patriotiques pour la Libération du Congo [Patriotic Force for the Liberation of Congo] (FPLC), were at all times involved in at least one non-international armed conflict with an opposing party, in Ituri, district of the DRC from on or about 6 August 2002 to on or about 31 December 2003.

The conduct of the UPC/FPLC against the civilian population was the intended outcome of a preconceived strategy to target the civilian population, and the crimes committed took place pursuant to a policy of the UPC/FPLC. Mr Ntaganda fulfilled a very important military function in the UPC/FPLC.

In this context, the Chamber found Mr Ntaganda guilty of crimes against humanity (murder and attempted murder, rape, sexual slavery, persecution, forcible transfer and deportation) and war crimes (murder and attempted murder, intentionally directing attacks against civilians, rape, sexual slavery, ordering the displacement of the civilian population, conscripting and enlisting children under the age of 15 years into an armed group and using them to participate actively in hostilities, intentionally directing attack against protected objects, and destroying the adversary’s property). While the evidence did not sustain all incidents indicated by the Prosecutor, it did demonstrate that in relation to each of the 18 counts at least part of the charges were proven beyond any reasonable doubt. The Chamber has found that Mr Ntaganda was liable as a direct perpetrator for parts of the charges of three of the crimes, namely murder as a crime against humanity and a war crime and persecution as a crime against humanity, and was an indirect perpetrator for the other parts of these crimes. He was convicted as an indirect perpetrator for the remaining crimes[10].


Sentence

On 7 November 2019, Trial Chamber VI sentenced Bosco Ntaganda to a total of 30 years of imprisonment. The time Mr Ntaganda has spent in detention at the ICC - from 22 March 2013 to 7 November 2019 - will be deducted from this sentence.


Conclusion

Though many believe that Ntaganda deserved a longer sentence, possibly one that would put him away for the remainder of his life, the Chamber believed that a sentence of 30 years was more appropriate. This judgement meant a victory for human right activists all over the globe, as this was the first time crimes against a sex or gender was considered a war crime. In addition, this case set the foundation for future cases that would related to either crimes against humanity, war crimes, or crimes against a specific gender. Ntaganda’s lawyers argued that since this was not a public trial, many of the witnesses could have been encouraged to give false testimonies to further strengthen the prosecution’s case.

As was expected, the defence appealed against the passed judgement; they appealed on two counts:

I. Firstly, the defence stated that one of the Judges of the Chamber, Judge Kuniko Ozaki, is unfit to serve as a Judge at the ICC. Seeing that she accepted duties as a Japanese diplomat while holding her position as an ICC judge, the defence argued that she has now lost her independence as she also serves as a face of the Japanese government. Article 74(1) of the Rome Statute supported their first appeal.

II. The defence in their second appeal argued that of the 18 crimes that Ntaganda was convicted of committing, at least 15 were not within the scope of charges that were truly confirmed. They claimed that the UPC, FPLC, or Ntaganda were “erroneously” blamed for all crimes committed in those locations at the time.[11]

Ntaganda’s appeals were meant to be heard in Court, but due to the pandemic, they have been pushed back. Though, no matter what, this judgement will be considered a landmark judgement passed by the ICC.

[1] Dale, Penny. "Bosco Ntaganda - the Congolese 'Terminator'." N.p., 08 July 2019. Web. 21 Aug. 2020. [2] "Bosco Ntaganda Sentenced to 30 Years for Crimes in DR Congo."Â BBC News. BBC, 07 Nov. 2019. Web. 21 Aug. 2020. [3] Wakabi, Wairagala. “Overview of the Prosecution's Case Against Ntaganda.” International Justice Monitor, 23 June 2017, www.ijmonitor.org/2017/06/overview-of-the-prosecutions-case-against-ntaganda/. [4] The Rome Statute A/CONF.183/9 of 17 July 1998 and corrected by process-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002. The Statute entered into force on 1 July 2002 [5] “Rome Statute of the International Criminal Court”. www.icc-cpi.int./ resource-library/ documents/ [6] “DRC warlord Bosco Ntaganda gets 30 years for war crimes”. The Guardian. 07 Nov. 2019. www.theguardian.com /Law/ [7]Summary judgement passed by the ICChttps://www.icc-cpi.int/itemsDocuments/20190708-ntaganda-judgment-summary-eng.pdf August 22, 2020 [8] Court Records https://www.icc-cpi.int/CourtRecords/CR2019_03568.PDF August 22, 2020 [9] “Coalition For The ICC” http://www.coalitionfortheicc.org/ntaganda-30-year-sentence August 22, 2020 [10] Court Records https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/04-02/06-2359 August 22, 2020 [11] Wakabi, Wairagala. "Ntaganda’S Lawyers Appeal His Conviction; Cite Lack Of Judicial Impartiality." International Justice Monitor. N.p., 2019. Web. 21 Aug. 2020.


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