CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ

BROTHERS AND SISTERS IN ARMS AS VICTIMS OF WAR CRIMES …

Introduction On January 4 th 2017, the Trial Chamber (TCH) VI of the International Criminal Court (ICC) in the Ntaganda case issued a decision touching on the very fundaments of IHL. 1 An issue at stake was whether war crimes may be committed by members of an armed force against fellow members of the same armed force. In this case, the Prosecutor charged the accused with 18 counts of war crimes and crimes against humanity, including rape and sexual slavery under Article 8(2)(e)(vi) of the ICC Statute. 2 Bosco Ntaganda was a deputy chief of the staff and commander of operations of the FPLC ( Forces Patriotiques pour la Libération du Congo ), the armed group which on the basis of investigation exploited child soldiers for domestic work, cooking, and for sex. In the DCC, the Prosecutor contended that “FPLC commanders and soldiers raped and sexually enslaved their soldiers without regard to age, including child soldiers under the age of 15. Some child soldiers became pregnant as a result of their rape. […] These child soldiers were raped routinely when they were not participating in hostilities, such as during military training and after battles had taken place.” 3 In support of her conclusion that the factual allegations constitute war crimes under the ICC Statute, the Prosecutor argued that these acts violate fundamental guarantees granted under IHL to persons affected by non-international armed conflict (NIAC). 4 The Defence opposed the charges of rape and sexual slavery (count 6 and count 9) arguing that crimes committed by members of armed forces on members of the same armed force (child soldiers) do not come within the ambit of IHL or ICL. According to the Defence, IHL is not intended to protect combatants from crimes committed by combatants within the same group. Such crimes come only under national law and human rights law. 5 In the confirmation of charges decision, the Pre-Trial Chamber (PTCH) II found that the central issue to be assessed was whether children were taking direct/active part in hostilities (DPH) at the time they were victims of acts of rape and/or sexual slavery by other members of their own group. 6 The PTCH II held that “the mere membership of children under the age Ntaganda , ICC-01/04-02/06-203, Document Containing Charges, Annex A, 10th January 2014, pp. 56-60. Article 8(2)(e) enumerates other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law. Article 8(2)(e)(vi) then defines war crime of committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in Article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions. 3 Ibid , § 100. 4 Ibid , § 107. At all times relevant to the DCC, an armed conflict not of an international character existed between the Union des Patriots Congolais (UPC)/FPLC and other organized armed groups in Ituri. Conclusions presented in this article are nevertheless applicable even in relation to almost identical war crime applicable in IAC envisaged in Article 8(2)(b)(xxii). 5 Ntaganda , Transcript of Hearing of 13 February 2014, ICC-01/04-02/06-T-10-RED-ENG, 13th February 2014, p. 27. 6 RODENHÄUSER, Tilman, Squaring the Circle? Prosecuting Sexual Violence against Child Soldiers by their ‘Own Forces’. Journal of International Criminal Justice . 2016, vol. 14, issue 1, p. 177. The PTCH referred among else to Common Article 3 (CA3) which provides that persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. 1 Ntaganda , ICC-01/04-02/06-1707, Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9, TCH VI, 4th January 2017. Hereafter referred to as the Decision. 2

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