Emerging Voices: Sexual Violence As War Crime: Controversial Issues in the International Criminal Court

by Rosemary Grey

[Rosemary Grey is a PhD Candidate at the Faculty of Arts and Social Sciences, University of New South Wales.]

The case of The Prosecutor v Bosco Ntaganda, which is currently before the International Criminal Court (ICC), is the latest of several cases in the ICC and Special Court for Sierra Leone (SCSL) to address the issue of sexual violence against female child soldiers by members of their own group.

The accused, Ntaganda, is the alleged former commander of the Union des Patriotes Congolais-Forces Patriotiques pour la libération du Congo (UPC-FPLC), an armed group which in 2002 and 2003 was involved in the non-international armed conflict in the Democratic Republic of Congo (DRC).

On 9 June 2014, Pre-Trial Chamber II confirmed the charges against Ntaganda, including charges for the rape and sexual slavery of female child soldiers in the UPC–FPCL by their commanders and fellow soldiers, which the ICC Prosecutor characterized as war crimes under Article 8(2)(e)(vi) of the Rome Statute. This was the first time that Article 8(2)(e)(vi) had been used to prosecute sex crimes committed against child soldiers by members of the same armed group.

I recently discussed the Pre-Trial Chamber’s decision on Beyond The Hague; here I will focus on the parties’ interpretation of Article 8(2)(e)(vi), and highlight some important gender issues raised by this case.

Issues raised at the pre-trial stage

Under international criminal law, a war crime is a serious violation of international humanitarian law (IHL), for which individuals can be held criminally responsible. Thus to characterize the sexual violence against the child soldiers as war crimes Article 8(2)(e)(vi) of the Rome Statute, the Prosecution needed to demonstrate that this sexual violence constituted a violation of IHL.

In the document containing the charges, the Prosecution argued that the child soldiers enjoyed two levels of protection against sexual violence under IHL.

First, they enjoyed “general protections against sexual violence under the fundamental guarantees applicable to persons affected by non-international armed conflicts” [107]. In support of this submission, the Prosecution referred to Common Article 3 of the Geneva Conventions and Article 4 of Additional Protocol II (AP II), which protect “persons taking no active part in the hostilities” and “persons who do not take a direct part or who have ceased to take part in hostilities” from various forms of ill-treatment, including sexual violence, during non-international armed conflicts.

Second, the Prosecution submitted, the children enjoyed “special protections because of their vulnerability” [107]. This submission was supported by reference to Article 4(3) of AP II, which states that:

(3) Children shall be provided with the care and aid they require, and in particular …

(c) children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities;

(d) the special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of sub-paragraph (c) and are captured;

Ntaganda’s Defence team argued that the Prosecution had not presented sufficient evidence to support the charges of rape and sexual slavery against the child soldiers, and also challenged the Prosecution’s interpretation of the law. It argued that these alleged sexual violence crimes could not constitute war crimes under Article 8(2)(e)(vi) of the Rome Statute, because IHL does not regulate the treatment of combatants by other combatants on the same side of the conflict (p. 26 – 27).

The Defence further argued that Article 4(3)(d) of AP II only protects children who have been captured by the opposing party; it does not protect children who are still in the power of their own party to the conflict (p. 27).

The Prosecution submitted that the Defence’s interpretation of Article 4(3)(d) was “excessively narrow” and overlooked the underlying purpose of the provision, namely to ensure the protection of children as a vulnerable group [189-193]. Drawing on the ICRC’s study of customary IHL and the commentary on AP II, the Prosecution argued that although children who take direct part in hostilities lose the protection against attack from the opposing party, this does not impact on their other protections under IHL, including the protection against sexual violence [188].

Regarding the Defence’s submission that IHL does not regulate the treatment of combatants by other combatants on the same side of the conflict, the Prosecution pointed out that this is not an “irrebuttable presumption.” For example, the Prosecution observed, the use of children in hostilities is a violation of IHL and a war crime under the Rome Statute, which can only be perpetrated against children from one’s own military force [107].

The victims’ legal representative also challenged the Defence’s interpretation of the Rome Statute, and its assertion that the sexual violence could not constitute war crimes because the victims and perpetrators were members of the same armed group.

The Pre-Trial Chamber did not accept the Prosecutor’s submission that under IHL, children continue to enjoy protection against sexual violence even while taking direct part in hostilities [79]. However, it agreed that the sexual violence against the child soldiers constituted a violation of IHL and a war crime under Article 8(2)(e)(vi), because the victims could not logically have been taking active part in hostilities at the specific time they were subjected to sexual violence [79]-[80].


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.

This decision is significant from gender perspective, because the evidence indicated that the child soldiers subjected to sexual violence in the UPC-FPLC were primarily, if not exclusively, female [100]-[105]. Research conducted by Human Rights Watch in Uganda, Somalia, and Sierra Leone, tells a similar story.

The Pre-Trial Chamber could arguably have considered this issue of gender discrimination when determining whether Article 8(2)(e)(vi) could be applied to prosecute the sexual violence against the child soldiers by members of the same armed group. That is because under Article 21(3) of the Rome Statute, the Court is required to interpret and apply all sources of law applicable in the ICC, including the Rome Statute and relevant instruments of IHL, without “adverse distinction” on certain grounds, including gender.

In her dissenting opinion in Lubanga, Judge Odio Benito considered this issue of gender discrimination when deciding that sexual violence was “embedded in” the war crime of conscripting or enlisting child soldiers or using them to participate actively in hostilities. She reasoned “it is discriminatory to exclude sexual violence which shows a clear gender differential impact from being a bodyguard or porter which is mainly a task given to young boys” [21].

However in Ntaganda, neither the Prosecution nor the Pre-Trial Chamber referred to Article 21(3), or to the issue of gender discrimination more broadly, when interpreting Article 8(2)(e)(vi) of the Rome Statute or the relevant rules of IHL.

This raises some interesting questions about when a consideration of “adverse distinction” on the grounds of gender is warranted.

If the evidence in a particular case indicates that one gender will be adversely affected by a narrow interpretation of a crime, does this oblige the Court to adopt a broader interpretation of the crime? And how can the need to adopt a gender-inclusive interpretation be balanced with Article 22 of the Rome Statute, which states that the definition of a crime must be “strictly construed” and that any ambiguity must be resolved in favour of the accused?

These questions must be discussed and resolved in future cases, to ensure that the hard-won protection against “adverse distinction” on the grounds of gender in Article 21(3) of the Rome Statute is appropriately enforced.


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.


2 Responses

  1. Rosemary, thanks for the interesting post.
    I think that there is an important difference between Judge Odio Benito’s dissent in Lubanga and the position of PTC II in this particular decision: Odio Benito raises the issue of gender discrimination in order to include sexual violence against female child soldiers in the concept of active participation in the hostilities and thus widen the scope of Article 8(2)(e)(vii). She did that because it was the only way to ensure a conviction based on sexual violence against children, as the Prosecutor did not include sex crime in the charges. But while it could be argued that a broad understanding of active participation in the hostilities helps in the fight against gender discrimination and impunity, some unintended consequences also arise. Odio Benito’s argument is, in my opinion, problematic, because it is usually understood in IHL that active participation and direct participation in hostilities are synonyms, and the consequence of that participation is the loss of protection of the civilian during that time. That implies that when a child soldier is being raped she could be “attacked” by a member of the other group, because the active participation generates a loss of protection. In Nicole Urban words: what the Court is giving with one hand it is taking away with the other.
    In Ntaganda the ICC is in a better position, for at least two reasons. First, the Prosecutor has decided to charge the accused with sex crimes and not just with the war crime of conscripting, enlisting and using child soldiers. For that reason, it is not necessary to interpret Article 8(2)(e)(vii) broadly, possibly against the rule of strict interpretation and the nullum crimen principle, and the unintended consequence regarding the loss of protection of the child could be avoided. And second, it is not that clear that war crimes can only be committed against members of another armed group. The Prosecutor correctly points out that the use of child soldiers is a war crime which can only be perpetrated against one’s own military force, and there is a reason for that: a child is considered a protected person under IHL, despite his eventual role as a child soldier. One could argue that killing a regular member of the group would not be a war crime because a soldier is not a protected person, but when it comes to children it is another scenario. Clearly the legality problem exists, but perhaps a reasonable understanding of Article 22(2) could solve the problem without the need to resort to Article 21(3). But I agree with the fact that the Court must discuss and resolve the apparently unsolvable conflict between those two provisions.
    In any case, I don’t think that the PTC II really thought about the structure of crimes of ongoing nature like sexual slavery. It would be unrealistic to affirm that the agent’s wrongdoing stops when the child soldier participates in the hostilities and then starts again after that conduct. If sex crimes can in fact be committed against children of the same group there would be no incongruences and the accused might be punished for two or more crimes (sexual slavery or another sex crime and using children to participate in the hostilities), depending on the rules of concursus delictorum.

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  1. […] and gender-based violence in the International Criminal Court. This post is cross-posted from the Opinio Juris blog and follows Rose’s earlier guest post on the gender issues in the Ntaganda Confirmation […]