The Women's Initiatives for Gender Justice is an international women's human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and through domestic mechanisms, including peace negotiations and justice processes. We work with women most affected by the conflict situations under investigation by the ICC.

The Women's Initiatives for Gender Justice works in Uganda, the Democratic Republic of the Congo, Sudan, the Central African Republic, Kenya, Libya and Kyrgyzstan.

Offices
■ Cairo, Egypt
■ Kampala and Kitgum, Uganda
■ The Hague, the Netherlands

Dear Friends,

Welcome to a Special Issue of Legal Eye on the ICC, a regular eLetter from the Women's Initiatives for Gender Justice. In the Legal Eye you will find summaries and gender analysis of judicial decisions and other legal developments at the International Criminal Court (ICC), and discussion of legal issues arising from victims' participation before the Court, particularly as these issues relate to the prosecution of gender-based crimes in each of the Situations under investigation by the ICC. The Court currently has eight Situations under investigation: Uganda, the Democratic Republic of the Congo (DRC), Darfur (Sudan), the Central African Republic (CAR), Kenya, Libya, Côte d'Ivoire and Mali.

In addition to the Legal Eye on the ICC, we produce Women's Voices, a regular eLetter providing updates and analysis on political developments, the pursuit of justice and accountability, the participation of women in peace talks and reconciliation efforts from the perspective of women's rights activists within armed conflict situations, specifically those countries under investigation by the ICC.

More information about the work of the Women's Initiatives for Gender Justice and previous issues of Women's Voices and Legal Eye on the ICC can be found on our website at iccwomen.org.

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DRC :: In the Ntaganda case, ICC unanimously confirms, for the first time, all sexual and gender-based crime charges sought by the Prosecution

On 9 June 2014, ICC Pre-Trial Chamber II[1] unanimously confirmed all charges brought against Bosco Ntaganda, committing his case to trial.[2] Specifically, the Chamber confirmed 13 counts of war crimes, including murder and attempted murder of civilians; attacks against the civilian population; rape and sexual slavery of civilians; rape and sexual slavery of Union des Patriotes Congolais/Forces Patriotiques pour la Libération du Congo (UPC/FPLC)[3] child soldiers; pillaging; displacement of civilians; attacks against protected objects; destruction of property; and the enlistment, conscription and use of child soldiers under the age of fifteen years to participate actively in hostilities. It further confirmed five counts of crimes against humanity, including murder and attempted murder of civilians; rape and sexual slavery of civilians; persecution; and forcible transfer of the population.[4] The Chamber confirmed the charges against Ntaganda in his alleged capacity as Deputy Chief of General Staff for Military Operations in the UPC/FPLC.[5]

The Defence sought leave to appeal the confirmation of charges decision on 16 June 2014.[6] However, on 4 July 2014, the Pre-Trial Chamber dismissed the Defence application on the basis that the arguments presented did not constitute appealable issues under Article 82(1)(d) of the Statute.[7]

The Ntaganda case is the third to arise from the DRC Situation and the second of these cases to include charges for sexual and gender-based crimes.[8] It is the first ICC case in which a Pre-Trial Chamber has unanimously confirmed all charges for sexual and gender-based crimes sought by the Prosecution.[9]

Significantly, the initial arrest warrant for Ntaganda, issued by Pre-Trial Chamber I[10] on 22 August 2006, did not include charges for sexual and gender-based crimes.[11] However, on 13 July 2012, Pre-Trial Chamber II issued a second warrant of arrest, adding 9 additional charges, including rape and sexual slavery as war crimes and crimes against humanity.[12]

The confirmation of charges hearing was held from 10 to 14 February 2014 with a total of 69,000 pages of evidence submitted to the Pre-Trial Chamber for its consideration.[13] At the commencement of the hearing, the Women’s Initiatives for Gender Justice issued a statement, emphasising the significance of the case given that ‘for the first time in international criminal law, the ICC has charged a senior military figure with acts of rape and sexual slavery committed against child soldiers within his own militia group and under his command’. In this regard, it was noted that ‘[a]ccording to documentation missions conducted by the Women’s Initiatives for Gender Justice in 2006 and 2007 in Ituri, the rape of girls and women occurred not only between warring tribes and militias but also within militias and ethnic groups.’ It was further noted that ‘[i]n the case of girl soldiers conscripted, enlisted and used by the FPLC, their vulnerability as children and as girls appears to have been exploited and violated purposefully and systematically as part of the routine internal management of this militia’.[14]

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Sexual violence crimes

The Pre-Trial Chamber found substantial grounds to believe that Ntaganda is criminally responsible for the rape and sexual slavery of both civilians and UPC/FPLC child soldiers under three modes of liability; namely: indirect co-perpetration, under Article 25(3)(a) of the Statute; contributing to the commission or attempted commission by a group of persons acting with a common purpose under Article 25(3)(d); and as a military commander, under Article 28(a). It also found substantial grounds to believe that Ntaganda is criminally responsible for ordering and inducing the crimes of rape and sexual slavery of civilians, under Article 25(3)(b).[15] In addition to confirming all of the charges for sexual and gender-based crimes sought by the Prosecution, the Chamber addressed the sexual violence aspects of other crimes charged and confirmed, including: Count three — attacks against civilians; and Count 10 — persecution. The Chamber’s findings in relation to these charges, including its findings on the contextual elements of the crimes, are discussed in depth below.

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Contextual Elements of Crimes against Humanity and War Crimes

In confirming the charges for crimes against humanity, the Pre-Trial Chamber found that there were substantial grounds to believe that, pursuant to a policy to attack the non-Hema civilian population and expel them from Ituri Province in the DRC, from approximately 6 August 2002 to 27 May 2003, the UPC/FPLC perpetrated a widespread and systematic attack against the non-Hema civilian population in several locations in Ituri.[16] With respect to war crimes, the Chamber found substantial grounds to believe that the UPC/FPLC constituted an organised armed group and that between around 6 August 2002 to 31 December 2003, it engaged in a non-international armed conflict in Ituri against other organised armed groups.[17] It further found that UPC/FPLC soldiers and/or Ntaganda himself committed the crimes charged as part of the widespread and systematic attack and/or in the context of the non-international armed conflict.[18]

The Chamber determined that the crimes against child soldiers were committed in various parts of Ituri throughout the non-international armed conflict.[19] It found that the remaining crimes were committed in the context of two attacks. The first attack occurred in villages in the Banyali-Kilo collectivité from approximately 20 November 2002 to 6 December 2002 (First Attack), while the second attack occurred in villages in Walendu-Djatsi collectivité from about 12 February 2003 to 27 February 2003 (Second Attack).[20]

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Counts Four and Five — Rape of Civilians as War Crimes and Crimes against Humanity

The Pre-Trial Chamber confirmed the charges for rape of civilians based on evidence demonstrating numerous acts of rape by UPC/FPLC soldiers, as well as civilians accompanying them, during the First and Second Attacks. In the context of the First Attack, during and in the aftermath of the takeover of Mongbwalu and Sayo, the Chamber noted that a 20 year-old girl was taken to a military camp and raped by a UPC/FPLC soldier, and that Ntaganda and his bodyguards arrested three nuns and took them to Ntaganda’s camp, where they were raped. It also noted that during an attack on Kilo, UPC/FPLC soldiers ordered male detainees to ‘sleep with the women’, after which one detainee inserted his fist into the genitals of Witness P-0022.[21] With regard to the Second Attack, the Chamber determined that during attacks on Lipri, Kobu, Bambu and Sangi villages, UPC/FPLC soldiers raped more than 16 women and girls, including one woman who was subsequently killed. The Chamber also cited evidence that soldiers raped three men who had been arrested in Kobu; forced prisoners to ‘sleep together’; and raped and executed women who were part of a Lendu delegation to a ‘pacification meeting’ in Kobu.[22]

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Counts Seven and Eight — Sexual Slavery of Civilians as War Crimes and Crimes against Humanity

Although the Prosecution had charged Ntaganda for sexual slavery of civilians in the context of both the First and Second Attacks,[23] the Pre-Trial Chamber only found substantial grounds to believe that UPC/FPLC soldiers committed sexual slavery in relation to the Second Attack. In drawing this conclusion, the Chamber reasoned that the evidence presented in relation to the First Attack did not satisfy the element of sexual slavery requiring that ‘the perpetrator exercised powers attaching to the right of ownership over the victim’. It found that this deficiency in evidence became particularly apparent when compared to evidence regarding the Second Attack. It also emphasised that ‘in the absence of other factors, mere imprisonment or its duration’ is not sufficient to satisfy this element.[24] In determining whether the requisite relationship existed between the perpetrator and the victim, the Chamber relied upon the indicia of sexual slavery enunciated by the ICTY Appeals Chamber in the Kunarac judgement, including not only the imprisonment of the victim and the duration of the imprisonment, but also restrictions on the victim’s freedom of movement; measures taken to prevent escape; the use of force, threat of force or coercion; and the personal circumstances of the victim, including her or his level of vulnerability.[25]

In concluding that sexual slavery had been committed in the Second Attack, the Chamber relied on evidence pertaining to four victims. It noted that one female was arrested by a group of UPC/FPLC soldiers, forced to carry pillaged goods, raped repeatedly by a UPC/FPLC commander, and held captive for about two days. Another was captured and detained for about one day, forced to carry pillaged goods with other prisoners, and repeatedly raped and beaten by UPC/FPLC soldiers. A third was captured, forced to carry pillaged goods and cook for UPC/FPLC commanders, and held captive for about two days ‘under death threats’ in the house of a UPC/FPLC commander, where she was repeatedly raped by UPC/FPLC soldiers. Finally, the Chamber noted that a Lendu girl of approximately 12 years of age was taken prisoner by a UPC/FPLC soldier and raped repeatedly until she managed to escape after a few weeks’ time.[26]

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Counts Six and Nine — Rape and Sexual Slavery of Child Soldiers as War Crimes

In considering the charges for rape and sexual slavery of UPC/FPLC child soldiers, the Pre-Trial Chamber first addressed whether it had jurisdiction over such crimes committed by members of the UPC/FPLC. The Defence had argued that these crimes ‘are not foreseen by the Statute’, as ‘[i]nternational humanitarian law [IHL] is not intended to protect combatants from crimes committed by combatants within the same group’.[27]

The Pre-Trial Chamber concluded that UPC/FPLC child soldiers under the age of 15 enjoy protection from acts of rape and sexual slavery under IHL and that it accordingly had jurisdiction over the crimes. The Chamber reasoned that the presence of children under the age of 15 years in an armed group is proscribed under international law, and ‘to hold that children under the age of 15 years lose the protection afforded to them by IHL merely by joining an armed group, whether as a result of coercion or other circumstances, would contradict the very rationale underlying the protection afforded to such children against recruitment and use in hostilities’. It further reasoned that children under the age of 15 only lose protection under IHL during their direct participation in hostilities, and that ‘those subject to rape and/or sexual enslavement cannot be considered to have taken active part in hostilities during the specific time when they were subject to acts of a sexual nature, including rape’. In this regard, the Chamber explained that ‘[t]he sexual character of these crimes, which involve elements of force/coercion or the exercise of rights of ownership, logically preclude active participation in hostilities at the same time’.[28]

The Pre-Trial Chamber confirmed these charges on the basis of several findings, including that UPC/FPLC soldiers abducted a 13 year-old girl in about July or August 2002 and raped her over a three-month period, while she underwent training in a UPC/FPLC camp. It found that two other girls, aged 9 and 13, were also raped in the camp during that period. It noted that women and girls in UPC/FPLC camps were likened to a large cooking pot known as a ‘guduria’, which indicated that ‘any soldier could sleep with them at any time’. It also noted that from about August to September 2002, young girls under the age of 15 were raped in ‘Mandro camp’, where they served as domestic servants and ‘combined cooking and love services’. It further found that a UPC/FPLC soldier raped a girl under the age of 15, who was serving as his bodyguard for at least four months, and that a 13 year-old girl was recruited by the UPC/FPLC and ‘continuously raped’ by a UPC/FPLC soldier until he was killed.[29]

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Count Three — Attacking Civilians as a War Crime

The Pre-Trial Chamber found that ‘to be held criminally responsible for the war crime of attacking civilians, the perpetrator must direct one or more acts of violence (an “attack”) against civilians not taking direct part in the hostilities, before the civilians have fallen into the hands of the attacking party’.[30] The Chamber held that rape, along with other enumerated acts, ‘may constitute an act of violence for the purpose of the war crime of attacking civilians, provided that the perpetrator resorts to this conduct as a method of warfare and, thus, that there exists a sufficiently close link to the conduct of hostilities’.[31] The Chamber emphasised that the requisite link between the act of violence underlying the attack and the conduct of hostilities does not exist when the act is committed far from the combat area, such as in a detention camp or a location that has fallen under the control of the attacking party following combat. To illustrate this point, the Chamber cited, among others, its findings under Counts 4 and 5 regarding rapes committed by UPC/FPLC soldiers after the takeover of Mongbwalu.[32] Considering these factors, the Chamber concluded that the following crimes each constituted the underlying conduct of the war crime of attacking civilians: rape of civilians; murder and attempted murder; pillaging; attacking protected objects; and destroying the enemy’s property.[33]

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Count Ten — Persecution as a Crime against Humanity

The Pre-Trial Chamber confirmed the crime of persecution based on its findings regarding crimes described in other charges. It found that the crimes of rape and sexual slavery of civilians, as well as murder and attempted murder, attacking civilians, pillaging, displacing civilians, and attacking protected objects, were perpetrated against non-Hema civilians during the First and Second Attacks on account of their ethnic origin. It further found that these crimes ‘constituted severe deprivations of fundamental rights’, including the right to life, to be free from torture and cruel, inhuman or degrading treatment, and the right to private property’.[34]

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■ Read the decision on the confirmation of charges against Bosco Ntaganda

■ Read the Statement of the Women’s Initiatives for Gender Justice on the Ntaganda confirmation of charges hearing

■ For more background about the Situation in the DRC and the case against Ntaganda, see Gender Report Card on the ICC 2008, 2009, 2010, 2011, 2012 and 2013

■ Read the Statement of the Women’s Initiatives for Gender Justice and Partners on Ntaganda’s surrender

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Footnotes

1   Pre-Trial Chamber II was composed of Presiding Judge Ekaterina Trendafilova (Bulgaria), Judge Hans-Peter Kaul (Germany) and Judge Cuno Tarfusser (Italy).
2   ICC-01/04-02/06-309.
3   The FPLC is the military wing of the UPC. ICC-01/04-02/06-309, para 15.
4   ICC-01/04-02/06-309, paras 36, 74.
5   ICC-01/04-02/06-309, paras 15, 106, 120. See also ICC-01/04-02/06-203-AnxA, para 6; ICC-01/04-02/06-2-Anx-tENG, p 3; ICC-01/04-02/06-36-Red, para 72.
6    ICC-01/04-02/06-312.
7   ICC-01/04-02/06-322, paras 29, 33.
8   The first case to arise out of the DRC Situation was that against Thomas Lubanga Dyilo, which did not include charges for sexual and gender-based crimes. The second case was that against Germain Katanga and Mathieu Ngudjolo Chui (Katanga and Ngudjolo case), which included charges of rape and sexual slavery as war crimes and crimes against humanity.
9   To date, a total of seven ICC cases involving sexual and gender-based crimes have reached the confirmation of charges stage of the proceedings. In the Katanga and Ngudjolo case (DRC), only a majority of the Pre-Trial Chamber confirmed all gender-based crime charges. In the case against Jean-Pierre Bemba (CAR), the Pre-Trial Chamber declined to confirm some of the gender-based crime charges. The majority of the Pre-Trial Chamber declined to confirm any of the charges against Callixte Mbarushimana (DRC). In the Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali case (Kenya), a majority of the Pre-Trial Chamber recharacterised the charge of ‘other forms of sexual violence’ to ‘other inhumane acts’ before confirming all charges against Muthaura and Kenyatta, which also included rape and persecution (by means of rape and other inhumane acts). Notably, although the Prosecutor had linked the crime of rape to attacks in three locations, namely, in Naivasha, Nakuru and Kibera, in its decision issuing Summonses to Appear, the Pre-Trial Chamber limited the charge of rape to incidents occurring in Nakuru. Finally, in the case against Laurent Gbagbo (Côte d’Ivoire), following the Ntaganda confirmation of charges decision, only a majority of the Pre-Trial Chamber confirmed all charges, including those involving gender-based crimes.
10   Pre-Trial Chamber I was composed of Presiding Judge Claude Jorda (France), Judge Akua Kuenyehia (Ghana) and Judge Sylvia Steiner (Brazil).
11   The warrant, which was unsealed on 28 August 2008, charged Ntaganda with three counts of war crimes, including enlistment, conscription, and use of children under the age of 15 to participate actively in hostilities, as punishable under Article 8(2)(b)(xxvi) or Article 8(2)(e)(vii) of the Rome Statute. ICC-01/04-02/06-2-Anx-tENG.
12   The warrant also charged Ntaganda with murder and persecution as crimes against humanity, as well as murder, attacks against the civilian population and pillaging as war crimes. ICC-01/04-02/06-36-Red.
13   ‘Pre-Trial Chamber II commits Bosco Ntaganda to trial’, ICC Press Release, ICC-CPI-20140609-PR1013, 9 June 2014, available here, last visited on 7 July 2014.
14   Women’s Initiatives for Gender Justice, ‘ICC Commencement of the Confirmation of Charges Hearing; The Prosecutor vs. Bosco Ntaganda’, 10 February 2014 (emphasis in the original), available here.
15   ICC-01/04-02/06-309, para 97.
16   ICC-01/04-02/06-309, paras 12-30.
17   ICC-01/04-02/06-309, paras 31-34.
18   ICC-01/04-02/06-309, paras 36, 74.
19   ICC-01/04-02/06-309, para 35; ICC-01/04-02/06-203-AnxA, paras 4-5.
20   ICC-01/04-02/06-309, paras 29, 35.
21   ICC-01/04-02/06-309, paras 49-50.
22   ICC-01/04-02/06-309, paras 51-52.
23   ICC-01/04-02/06-203-AnxA, paras 67,72,74,77-79,84,89,162 and p 58.
24   ICC-01/04-02/06-309, para 53.
25   ICC-01/04-02/06-309, para 53, fn 209.
26   ICC-01/04-02/06-309, paras 54-57.
27   ICC-01/04-02/06-T-10-Red-ENG, p 27 lines 22-23; ICC-01/04-02/06-309, para 76.
28   ICC-01/04-02/06-309, paras 77-80.
29   ICC-01/04-02/06-309, paras 81-82.
30   ICC-01/04-02/06-309, para 45.
31   Other acts noted by the Chamber included ‘shelling, sniping, murder, […] pillage, attacks on protected objects and destruction of property’. ICC-01/04-02/06-309, para 46.
32   ICC-01/04-02/06-309, para 47, fn 175.
33   ICC-01/04-02/06-309, para 48.
34   ICC-01/04-02/06-309, para 58.

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