With Ntaganda decision, will ICC build clarity around sexual and gender-based crimes?

In this post for International Justice Monitor, Wairagala Wakabi explains the decision by judges in the ICC trial of Bosco Ntaganda affirming that the Court can try individuals for the rape and sexual enslavement of members of their own armed force. As Wakabi highlights, the decision could go a long way toward clarifying the scope of protection under international humanitarian law for victims of sexual and gender-based crimes during conflict.

Trial chamber judges have affirmed that the International Criminal Court (ICC) has the jurisdiction to try Bosco Ntaganda over the alleged war crimes of rape and sexual slavery of child soldiers in the Union of Congolese Patriots (UPC) by fighters from the same militia group.

The two charges are part of the 18 counts that Ntaganda faces at the ICC. The prosecution alleges that Ntaganda, as the UPC’s former deputy chief of staff, is criminally responsible for the rape and sexual enslavement of child soldiers in the militia group by its commanders and soldiers,

In the trial that opened in The Hague in September 2015, Ntaganda has contested the jurisdiction of the court to try him on those charges. Defense lawyers argued that under Article 3 of the Geneva Conventions of 1949, war crimes may not be committed by members of an armed force against members of the same armed force. According to them, the victim of a war crime in a non-international armed conflict must be a protected person within the meaning of Article 3, meaning a person “taking no active part in the hostilities.”

However, in a decision delivered on Wednesday, Trial Chamber VI judges Robert Fremr (Presiding), Kuniko Ozaki, and Chang-ho Chung dismissed the defense submissions. They stated that the court’s statutory framework does not require victims of these crimes to be protected persons. The chamber found that limiting the scope of protection in the manner proposed by the defense “was contrary to the rationale of international humanitarian law, which aims to mitigate the suffering resulting from armed conflict.”

Judges determined that members of the same armed force are not excluded as potential victims of the war crimes of rape and sexual slavery, whether as a result of the way these crimes have been incorporated in the Rome Statute, or on the basis of the framework of international humanitarian law. Accordingly, the chamber determined that it has jurisdiction over the conduct described in the two counts (counts 6 and 9) against Ntaganda.

This ruling could put to rest an issue that has seen substantial arguments right from the pre-trial stage in the Ntaganda case. The defense contended that such crimes could be criminalized and punished domestically, as with all other crimes committed by soldiers against fellow members of the same force.

In its submissions, the prosecution argued that the ICC had jurisdiction over the two contested counts because the Rome Statute does not limit criminal liability for rape and sexual slavery on the basis of the status or activities of the victims. It also argued that neither Common Article 3 of the Geneva Conventions nor international humanitarian law in general requires a victim and a perpetrator to have different affiliations.

The judges wrote that “[w]hile most of the express prohibitions of rape and sexual slavery under international humanitarian law appear in contexts protecting civilians and persons hors de combat [outside the fight] in the power of a party to the conflict, the Chamber does not consider those explicit protections to exhaustively define, or indeed limit, the scope of the protection against such conduct.”

Ntaganda faces 11 other counts of war crimes (murder and attempted murder; attacking civilians; rape; sexual slavery of civilians; pillaging; displacement of civilians; attacking protected objects; destroying the enemy’s property; enlistment and conscription of child soldiers under the age of fifteen years and using them to participate actively in hostilities). In addition, he faces five counts of crimes against humanity (murder and attempted murder; rape; sexual slavery; persecution; forcible transfer of population). The crimes were allegedly committed in Congo’s Ituri Province during ethnic conflict that took place from 2002 to 2003.

This post originally appeared on INTERNATIONAL JUSTICE MONITOR