A Puzzling Statement by the OTP Regarding Rwanda

by Kevin Jon Heller

According to the Washington Post, Phakiso Mochochoko, the head of the Jurisdiction, Complementarity and Cooperation Division in the Office of the Prosecutor at the ICC, said the following in response to Stephen Rapp’s recent comments about the potential criminal liability of the Rwandan government for its support of Bosco Ntaganda’s M23 in the Congo (emphasis added):

The International Criminal Court is not investigating Rwanda’s alleged support of a rebel group committing atrocities in the Congo, a court official said Thursday.

The court’s focus is on the arrest of the rebel leader Bosco Ntaganda of the M23 rebel group, said Phakiso Mochochoko, head of the Jurisdiction, Complementarity and Cooperation Division at the ICC (emphasis mine).

The International Criminal Court is not investigating Rwanda’s alleged support of a rebel group committing atrocities in the Congo, a court official said Thursday.

The court’s focus is on the arrest of the rebel leader Bosco Ntaganda of the M23 rebel group, said Phakiso Mochochoko, head of the Jurisdiction, Complementarity and Cooperation Division at the ICC.

“We are not in any way looking at Rwanda and in addition to that Rwanda is not even a state party to the ICC,” Mochochoko said.

What?  According to the UN, the Kagame government has supported M23 in the Congo by providing it with both weapons and troops.  If those actions amount to aiding-and-abetting, the Kagame government is responsible for crimes committed in the Congo, which is a state party to the Rome Statute.  And that means the ICC would have jurisdiction over Kagame and any other responsible government official pursuant to Article 12(2)(a) of the Rome Statute, which provides, in relevant part, that “the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3… [t]he State on the territory of which the conduct in question occurred.”  The fact that Kagame and the other officials might have been physically located in Rwanda when they gave the orders that led to the troops and weapons being sent to the Congo is irrelevant.  Because aiding and abetting is a mode of participation and not a substantive crime (a critical distinction; see this representative U.S. case), the crimes for which they may be responsible were committed in Congo, not in Rwanda.  And that is all the Rome Statute requires.


8 Responses

  1. Kevin,

    As Australia is a State party, this is not an issue that I think about too much. Could it be the ICC official was not referring to whether there was jurisdiction de jure, but rather indicating that as Rwanda was not a State party then as a matter of deference to that choice the ICC would not unilaterally commence an investigation? As I say, just a thought on which I would welcome your comment.

  2. Ian,

    It’s certainly possible, but then the official should have said that specifically. Besides, if that is what he meant, it’s still problematic: the drafters of the Rome Statute specifically gave the Court jurisdiction over crimes committed by nationals of non-states parties on the territory of states parties, so what justification for deference could there be?  “Hey, you committed crimes, but no worries — you haven’t joined us so we’ll let it slide” doesn’t seem like particularly good policy.  After all, the Kagame government isn’t about to investigate itself.

  3. Also, think about the message that would send to the Congo.  States join the Court in part because they want to be protected against other states committing crimes on their territory.  If the OTP is going to pursue a policy of (wholly voluntary) deference to non-states parties, states are going to be much more reluctant to join.

  4. Rwanda does not need to be a party to the Rome Statute for the ICC to impute criminal responsibility against Rwandan nationals. Article 12 (2) (a) stipulates the Court’s jurisdiction ratione loci into situations where alleged crimes occurred in the territory of a State-party (i.e. the DRC). The nationality of the accused has little or no bearing where Article 12 (2) (a) applies. This position is confirmed by paragraph 11 of Pre-Trial Chamber II’s July 13th ‘Decision on the Prosecutor’s Application under Article 58’ in the case The Prosecutor v. Bosco Ntaganda. The Pre-Trial Chamber refused to dismiss the Prosecutor’s application on the ground that Bosco Ntaganda is a national of Rwanda, a non-State party. Considering this, in my opinion Mr. Mochochoko’s statement seems exceptionally out of place.
    Incidentally, this dilemma sheds light on (albeit to a lesser extent, and Dr. Heller concedes to this in his post) an alternative provisional lacunae of the Rome Statute—namely, whether the “conduct” referred to in Article 12 (2) (a) extends solely to the effects of actions pursued by individuals in non-State parties. I question as to whether this ambiguity may prospectively broaden the scope of the ICC’s involvement into situations in non-member States?

  5. Ray,

    Thanks for the Ntaganda reference; I wasn’t aware of it. 

    I’m not sure I understand your question in the second paragraph.  My position is that the “conduct in question” language refers to the conduct of the principal offender that satisfies the actus reus of the underlying crime.  As long as that conduct takes place on the territory of a state party, it doesn’t matter where the person who aids and abets is located, because he becomes responsible for the principal offender’s conduct through his complicity.  That’s most obvious with a mode of participation like ordering: if General X standing in Rwanda orders Colonel Y to execute civilians in the Congo, we would never say that General X cannot be prosecuted for ordering Colonel Y’s crime because he was not himself in the Congo when he gave the order.  Aiding-and-abetting is no different.

  6. Kevin,
    There is an interesting corollary in a piracy case currently being litigated in a U.S. District Court. A Somali government official was charged with intentionally facilitating an act of piracy in the Indian Ocean by negotiating a ransom. Although the attack was committed on the High Seas (where there exists universal jurisdiction), the Accused appears to have negotiated from Somali territory. Therefore, the Court held that it did not have jurisdiction over a facilitator when the actus reas of facilitation occurred outside of the High Seas. I think your interpretation of aiding and abetting also applies to a facilitator of piracy. As long as the pirate attack which he facilitated occurred on the High Seas, the court has jurisdiction over the facilitator on Somali soil. The prosecution has filed an interlocutory appeal on the issue.

  7. Kevin, yes, I was probably being too hopeful. It would seem that if States A, B and C decide to create a court, they can vest that court with jurisdiction over nationals of State D. But I guess that is not so different from State A asserting domestic jurisdiction over the actions of a national of State D where those actions create an effect on the territory of State A.

  8. I had years ago the opportunity to see Mr. Mochochoko at work and  I’m sure he is fully masters all issues related with the place the conduct occurred and implications for those supporting the commission of the crime from Rwanda. Im my opinion he simply wanted to reassure Rwanda authorities by saying something which could not later reveal to be untrue and that his statement reflects the fact that the ICC doesn’t look into the conduct of Rwands as a State, as State responsibility id beyond the jurisdiction of the ICC and that he carefully avoided to refer to individual responsibility under the Statute of those sitting in Rwanda and furthes expressed intentions of the Court in terms is “fucus” as a priority. 
    To conclude, the statement seems to be carefully weighted in order to only apparently exclude interest in support provided by individuals in Rwanda … without binding the hands of the Court and looks like a materpiece of political communication rather than a misplaced legal statement.    

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