CYIL vol. 12 (2021)

peter klanduch

CYIL 12 (2021)

Bosco Ntaganda (Democratic Republic of the Congo) In this case, the former Deputy Chief of the Staff and commander of operations of the Forces Patriotiques pour la Liberation du Congo (FPLC) was charged with 13 counts of war crimes and five counts of crimes against humanity, including enlistment and conscription of child soldiers and using them in hostilities, and rape and sexual slavery of girl soldiers. 130 In a disputed decision, the Court rejected the submission on the status requirement and held that war crimes of rape and sexual slavery can be committed even within a party’s own forces. As Tilman Rodenhäuser argues, losing civilian status vis-à-vis the adversary in the context of the conduct of hostilities does not mean that children also lose fundamental protections vis-à-vis those who unlawfully use them. He claims that IHL ensures an essential protection against intra-party violence and that children fall under the protective scope of Common Article 3 to the Geneva Conventions. 131 Some authors welcome the decision on the confirmation of charges as a promising development in the sense that it considered sexual slavery inflicted against both civilians and child soldiers under specific charges and not only under counts relating to recruitment and use of children in hostilities. 132 In 2019, Ntaganda was found guilty and sentenced to a total of 30 years of imprisonment. In 2021, the Appeals Chamber confirmed both the conviction and the sentence. 133 Jean-Pierre Bemba Gombo (Central African Republic) In 2016, the military commander of the Mouvement pour la libération du Congo (MLC) was found guilty of crimes against humanity and war crimes, including rape by soldiers of girls 11 years old. 134 It was the first case to find an accused guilty of command responsibility under Article 28 of the Rome Statute as well as the first ICC conviction for sexual violence. As Kate Cronin-Furman points out Bemba case was exactly the type of case that could have strengthened the deterrent effect of the ICC prosecutions. 135 However, the Appeals Chamber reversed the decision of the Trial Chamber and decided to acquit Bemba in 2018. The acquittal was primarily the result of an inability of the prosecution successfully to apply the command responsibility doctrine. Unlike other ICC defendants, Bemba was a commander who permitted the commission of mass atrocities, rather than ordering them. The Appeals Chamber questioned Bemba’s ability as a “remote commander,” to take measures to control the actions of his subordinates. 136 130 Prosecutor v. Bosco Ntaganda, “ Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda,” ICC-01/04-02/06, 9 June 2014. 131 Rodenhäuser, Tilman. “Squaring the Circle? Prosecuting Sexual Violence against Child Soldiers by their ‘Own Forces’” Journal of International Criminal Justice 14, no. 1 (2016): 193. 132 Aptel, “Child Slaves,” p. 315. 133 International Criminal Court, “Ntaganda Case,” https://www.icc-cpi.int/drc/ntaganda (Accessed on 24 May 2021). 134 Prosecutor v. Jean-Pierre Bemba Gombo. “Judgment pursuant to Article 74 of the Statute.” ICC-01/05-01/08, 21 March 2016. 135 Cronin-Furman, Kate. “Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocity,” International Journal of Transitional Justice 7, no. 3 (2013): p. 452. 136 Prosecutor v. Jean-Pierre Bemba Gombo. “ Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s ‘Judgment pursuant to Article 74 of the Statute.’” ICC-01/05-01/08, 8 June 2018, para. 68.

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