The ICC Appeals Chamber Was Not Wrong (But Could Have Been More Right) in Ntaganda

[Luigi Prosperi received his PhD in “International legal order and human rights” from Sapienza University of Rome, honorary fellow in International Law at Sapienza University, formerly Associate Legal Officer at ICTY.]

Last week, the Appeals Chamber (AC) of the ICC unanimously rejected Bosco Ntaganda’s Defence appeal against the 4 January decision of the Trial Chamber VI (TC), which had found that the Court has jurisdiction over the war crimes of rape and sexual slavery (provided for in Article 8(2)(b)(xxii) and 8(2)(e)(vi) of the Statute) when the perpetrators and the victims are members of the same armed force or group.

The decision caused a stir among several prominent ICL experts, and was harshly criticized in this post by Professor Heller. The aim of this post is not so much to respond to their criticisms, but to shed some light on a fundamental step in the AC’s reasoning, which I will refer to as the “systematic argument”. Since the AC’s systematic approach reverberates throughout the decision, in this blog post I will present the arguments in the same order as the judges.

First of all, the AC identifies the scope of the appeal:

16. The principal issue arising in this appeal is whether the Trial Chamber erred in law when it held that victims of the war crimes of rape and sexual slavery listed in article 8(2)(b) and (e) do not have to be “protected persons” in the sense of the Geneva Conventions of 1949 (“Geneva Conventions”) or “[p]ersons taking no active part in the hostilities” in the sense of Common Article 3 to the 1949 Geneva Conventions (“Common Article 3”) (…).

Interestingly, the first argument wielded by the TC against this conclusion had been a systematic one. According to the judges, provided that “the Statute is first and foremost a multilateral treaty which acts as an international criminal code for the parties to it”, in order to determine if the crimes of rape and sexual slavery provided for in Article 8(2)(b)(xxii) and 8(2)(e)(vi) are limited to acts constituting grave breaches of the Geneva Conventions or serious violations of Common Article 3, they have first to consider the “statutory framework”, and then eventually turn to the laws and customs of international and non-international armed conflicts (TC decision, paras. 35-39).

Even though it upholds this systematic argument, the AC does not refer to the TC’s interpretation of the law in this regard, but proposes a different reading. On the one hand, the AC subscribes to the TC’s findings that neither the chapeaux of Article 8(2)(b) or (e), nor the two provisions criminalizing rape and sexual slavery expressly circumscribe the group of potential victims (para. 46), and that only in relation to “other form[s] of sexual violence” the Statute makes an express reference to grave breaches of Geneva Conventions or serious violations of Common Article 3, with the aim of requiring that the unenumerated conducts meet a “gravity threshold” (para. 49). On the other hand, the AC rejects the theory that including the “Status Requirements” would run contrary to the structure of Article 8, and render the world “other” in the chapeaux of Article 8(2)(b) and (e) meaningless (para. 47). It also finds no indications that the drafters intended to avoid any potential overlaps between the different categories of war crimes listed in the sub-paragraphs of Article 8(2) (para. 48).

However, at para. 48 the AC supports one of the TC’s main findings in relation to the structure of Article 8, and holds that:

while the drafting history is silent as to whether the drafters intended the war crimes of rape and sexual slavery under article 8(2)(b)(xxii) and (e)(vi) to be subject to the Status Requirements, it is clear that the drafters intended these crimes to be “distinct war crimes”, as opposed to merely illustrations of grave breaches of the Geneva Conventions or violations of Common Article 3.

Accordingly, the AC concludes that it is not possible to infer that the drafters intended to circumscribe the protection afforded under Article 8(2)(b)(xxii) and (e)(vi) to a particular group of potential victims. Therefore, the TC did not err in law in finding that, based the ordinary meaning, context and drafting history of the above-mentioned provisions, the statutory framework does not require the victims of the crimes of rape and sexual slavery to be “protected persons” in terms of the Geneva Conventions or “persons taking no active part in the hostilities” in terms of Common Article 3 (paras. 50-51).

In other words: given that the Statute is a multilateral treaty which acts as an international criminal code for its parties, the judges are bound to apply its provisions in light of Article 21 and of the rules of treaty interpretation before turning to secondary sources. It is in fact the ordinary meaning to be given to the terms of Article 8(2)(b) and (e) in their context, together with the drafting history of these provisions, that militate in favour of the view that under the Rome Statute, rape and sexual slavery may amount to war crimes when committed against members of the same armed group as their perpetrator.

According to this very principle, the AC has to consider whether any limitations in relation to the Status Requirements may arise from the broader international legal framework.

Pursuant to Article 21 of the Statute, in the absence of any indication to the contrary, the AC considers that the reference to “the established framework of international law” permits recourse to customary and conventional international law “regardless of whether any lacuna exists” in that provisions (para. 53). It is because of this reference (and not in light of a duty to apply Article 8 consistently with pre-existing norms of customary or conventional international humanitarian law) that the Court may introduce additional elements in respect of a given war crime listed in its sub-paragraphs, if required under customary or conventional international law (para. 54).

In relation to the Status Requirements, it should therefore be demonstrated that as a general rule, international humanitarian law circumscribes the group of potential victims of war crimes to persons protected under the Geneva Conventions or persons not taking active part in hostilities under Common Article 3, or that a specific exclusionary rule exists in relation to the war crimes of rape and sexual slavery. In other words, the AC finds that in order to determine that the Court has no jurisdiction over such crimes, it has to be demonstrated that Geneva Conventions and Common Article 3 categorically exclude the members of the same armed group from protection, either in general or in relation to the crimes of rape and sexual slavery.

In this regard, the AC argues that on the one hand, Geneva Conventions I and II respectively afford protection to the wounded and sick on land, and the wounded, sick and shipwrecked at sea, irrespective of their belonging to enemy armed forces or to a party’s own armed forces (para. 59); and on the other, Common Article 3 “provides for unqualified protection against inhumane treatment irrespective of a person’s affiliation” – unless (s)he is taking active part in the hostilities (para. 60).

Moreover, the AC relies upon the updated commentary of the ICRC, which observes that Common Article 3 “protects members of armed forces against violations committed by the armed force to which they belong”, referring as supporting practice to paras. 78-80 of the PTC II decision on the confirmation of charges issued in this very case (para. 61).

Accordingly, the AC finds that “international humanitarian law does not contain a general rule that categorically excludes members of an armed group from protection against crimes committed by members of the same armed group” (para. 63).

As to the argument that an exclusionary rule would be specifically applicable to the war crimes of rape and sexual slavery, the AC upholds the TC’s finding that despite most of the express prohibitions appear in contexts protecting civilians and hors de combat in the power of a party to the conflict, the prohibitions of rape and sexual slavery in armed conflict are well established under conventional (see Article 75 of AP I and Article 4(2)(f) of AP II) and customary international humanitarian law (see Rules 93 and 94 of the ICRC Study on Customary IHL). The AC also agrees that “there is never a justification to engage in sexual violence against any person” in the context of armed conflicts (para. 65). Therefore, the AC concludes that there is “no reason to introduce Status Requirements” to Article 8(2)(b)(xxii) and 8(2)(e)(vi) of the Statute “on the basis of the ‘established framework of international law’ ” (para. 66).

This is indeed the only part of the decision which I find slightly disappointing, since it could have been based on a more solid reasoning.

In particular, having taken a strong stance on the Rome Statute’s nature, I would expect the AC to thoroughly apply the rules on interpretation, as provided for in Article 21. Pursuant to Article 21(3) of the Rome Statute and Article 31(1) of the Vienna Convention on the Law of Treaties, Article 8 shall in fact be interpreted also in light of “internationally recognized human rights” and of the object and purpose of the Rome Statute – or, as the Prosecution had put it before the PTC, pursuant to “a purposive or teleological interpretation of article 8(2)(e)(vi), consistent with the protective rules applicable to children during warfare” (Prosecution submissions, para. 183).

Indeed, I find it somehow disappointing that the AC did not refer to the Statute’s object and scope (to fight impunity “for the sake of present and future generations”), nor to the “internationally recognized human rights” – including everybody’s right not to be victim of rape and sexual slavery. In this spirit, it is of the utmost relevance the fact that under international human rights law, there is never a justification to engage in sexual violence against any person, irrespective of this person’s status.

Moreover, the AC may have held that the Court should especially exercise its jurisdiction over rape and sexual slavery committed against members of the same armed group, when such status had been determined by the perpetrator’s unlawful conduct. In this regard, the AC could have enhanced the TC’s references to the duty not to recognise situations created by certain serious breaches of international law, and to the principle that one cannot benefit from one own’s unlawful conduct (TC decision, para. 53). These considerations may in fact contribute to defining, in the specific circumstances of the case, the “purpose” of fighting against impunity (of individuals that had enlisted the same underage kids they would abuse of).

In other words: provided that international humanitarian law does not generally and categorically prohibit the prosecution of those conducts, it is the evolutionary nature of the Rome Statute, which should at any time be interpreted in light of international human rights law, to justify the adoption of the broadest possible interpretation of Article 8(2)(b)(xxii) and 8(2)(e)(vi).

In order to prevent a likely objection in relation to the (unwanted) effects of this decision, in the final paragraphs the AC underlines that it does not blur in any way the distinction between war crimes and ordinary crimes:

68. The Appeals Chamber emphasises in this context that the Elements of Crime for each war crime contain an express nexus requirement which must be established in each particular instance. Thus, it must be established that the conduct in question “took place in the context of and was associated with an armed conflict” of either international or non-international character. In the view of the Appeals Chamber, it is this nexus requirement, and not the purported Status Requirement, that sufficiently and appropriately delineates war crimes from ordinary crimes. To that end, as rightly observed in the Impugned Decision with reference to the judgment of the ICTY Appeals Chamber in Kunarac, the Trial Chamber may have regard, inter alia, to “the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties.” The Appeals Chamber considers that any undue expansion of the reach of the law of war crimes can be effectively prevented by a rigorous application of the nexus requirement.

According to the AC, any undue expansion of the reach of the law of war crimes may in fact be prevented by a rigorous application of the principles concerning the nexus requirement. It is in fact the absence of a link to the armed conflict situation (which according to the same Kuranac AC consists in the fact that the crime “is shaped by or dependent upon” the armed conflict) that would put hundreds of potential war crimes (of rape and sexual slavery) back into Pandora’s box.

Finally, a further consideration has to be made in relation to the impact of this decision.

Considering that it is jurisdictional in nature, and that the ICC judges are not bound by a principle of precedent, it is foreseeable that the saga is far from over. In the meantime, it is noteworthy that Prosecution witnesses have testified about the child soldiers’ status and their participation to the UPC military operations.