Now that the story of the surrender of Bosco Ntaganda has ended with his transport to the International Criminal Court detention center, and given that his 1st court appearance set for Tuesday morning, it’s high time to review the precise charges against this former fugitive.
Pursuant to a request by the ICC’s 1st Prosecutor, Luis Moreno-Ocampo, a 1st warrant sought the arrest of Ntaganda in August 2006. It described him as “Deputy Chief of General Staff for Military Operations” for the Forces Patriotiques pour la Libération du Congo. Conjoined with the Union des Patriotes Congolais, the UPC/FPLC operated as a political-military organization made up mostly of members of the Hema ethnic groups in Ituri. The UPC/FPLC were among several armed groups at war in that region, located in the eastern part of the Democratic Republic of the Congo. (credit for map (c) BBC) The 1st warrant alleged that Ntaganda was No. 3 in the group, led by UPC/FPLC President Thomas Lubanga Dyilo, a co-accused who was himself a Hema born in the region (in contrast with Ntaganda, who is said to have been born in Rwanda).
Only child-soldiering then was charged. Applying the standard required by Article 58(1)(a) of the Rome Statute of the ICC, judges thus issued the 1st arrest warrant after finding “reasonable grounds to believe” that Ntaganda was responsible for
► (i) enlisting,
► (ii) conscripting, and
► (iii) using to participate actively in hostilities
children under the age of fifteen, in an armed conflict of an international or a non-international charter, in violation of Articles 8(2)(b)(xxvi) and 8(2)(e)(vii), respectively.
There matters lay for nearly six years – until last May 14, when the ICC’s second Prosecutor, Fatou Bensouda, sought to expand the list of charges against Ntaganda. Her request came 2 months to the day after the ICC conviction of Lubanga for unlawful enlistment, conscription, and use of underage children in an internal – but not in an international – armed conflict. As I wrote in an American Journal of International Law casenote, in its judgment of conviction, Trial Chamber I had refused to consider trial evidence of sexual abuse in Lubanga, for the reason that the indictment did not include stand-alone charges of sexual or gender-based violence. Expansion of the charges in Ntaganda could avoid a repeat of the result in Lubanga.
The request was granted on July 13 of last year. After reviewing allegations of attacks on non-Hema civilians in Ituri – “in Mongbwalu town and Sayo village between 18 and 23 November 2002” and “in Lipri, Bambu, Kobu and surrounding villages between 17 February 2003 and 2 March 2003” – a pre-trial chamber issued the 2d arrest warrant in Ntaganda. Judges agreed that the Prosecutor had shown the requisite reasonable grounds to believe the accused’s responsibility on 7 additional counts, which alleged crimes against humanity and war crimes in a non-international armed conflict, as follows:
► 1: Murder Constituting Crimes Against Humanity (Article 7(1)(a));
► 2: Murder Constituting War Crimes (Article 8(2)(c)(i));
► 3: Attack against a Civilian Population Constituting War Crimes (Article 8(2)(e)(i));
► 4: Rape and Sexual Slavery Constituting Crimes Against Humanity (Article 7(1)(g));
► 5: Rape and Sexual Slavery Constituting War Crimes(Article 8(2)(e)(vi));
► 6: Persecution Constituting Crimes Against Humanity (Article 7(1)(h)); and
► 7: Pillaging Constituting War Crimes (Article 8(2)(e)(v)).
The form of liability charged in both warrants is that set forth in Article 25(3)(a) of the ICC Statute, concerning commission of an offense
‘whether as an individual, jointly with or through another person, regardless of whether that other person is criminally responsible.’
As is not uncommon among ICC judges, the panel in the 2d arrest warrant decision referred to this as “indirect co-perpetrator” (para. 66), even though that label, derived from the practice of some ad hoc tribunals, does not appear in the ICC Statute. This is the same form of liability at issue in the first two ICC cases to be tried to verdict – not only in the March 2012 conviction in Lubanga, but also in the December 2012 acquittal in Ngudjolo. As is evident at para. 67 of the 2d arrest warrant decision, ICC jurisprudence has constructed a many-element test for whether Article 25(3)(a) has been satisfied. But in each of the cases tried to verdict, 1 out of 3 trial chamber judges objected to the burden that the construct places on the prosecution. (The opinion to this effect in Lubanga, by Judge Adrian Fulford of Britain is at pages 594-607 of the pdf document here; that in Ngudjolo, by Judge Christine Van den Wyngaert of Belgium, is here.) It is thus notable that at para. 66 of the 2d arrest warrant decision in Ntaganda, the pre-trial chamber “underline[d]” that its determination did “not prejudice any subsequent finding regarding the applicability of a different mode of liability at a later stage of the proceedings.”