ICC extends War Crimes of Rape and Sexual Slavery to Victims from Same Armed Forces as Perpetrator

Readers of this blog will be interested in an important decision issued by Trial Chamber VI of the ICC in the case of Ntaganda yesterday. At issue was the Defence’s argument that the Court could not have jurisdiction over the crimes of rape and sexual slavery allegedly committed against UPC/FPLC child soldiers, because war crimes cannot be committed against combatants from the same armed forces as the perpetrator. Such crimes, the Defence argued, would come within the ambit of domestic law and human rights, and were not covered by the war crimes prohibition.

Initial appearance of Bosco Ntaganda, 26 March 2013

Bosco Ntaganda. Picture credit.

The argument, on its face, is rather convincing – the Geneva Conventions and their Additional Protocols explicitly protect certain categories of persons, principally sick, wounded and shipwrecked persons not taking part in hostilities, prisoners of war and other detainees, civilians and civilian objects. Ntaganda is charged with these crimes under Article 8(2)(e)(vi) of the ICC Statute, which defines the war crime as:

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;

The chapeau of Article 8(2)(e) enumerates the crimes therein as being ‘other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law’. It stands to reason, then, that we would examine that established international law framework in seeking to determine whether fellow combatants from the same armed forces as the perpetrator are protected by that framework.

Common Article 3 refers explicitly to ‘persons taking no active part in hostilities’, while Article 4 of Additional Protocol II (which contains the prohibition on outrages upon personal dignity, rape, enforced prostitution and any form of indecent assault) applies only to those ‘persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted’.

The most obvious way to resolve this issue would seem to be to acknowledge that Article 8(2)(c) and (e) crimes cannot be committed against those actively taking part in hostilities, but to argue that those victims identified in paragraphs 66-72 of the Confirmation Decision as having been abducted to act as domestic servants and, in the words of one witness, provide ‘combined cooking and love services’ were obviously not actively taking part in hostilities.

Yet, other victims mentioned in the Confirmation Decision acted as bodyguards, while other young girls abducted by the UPC/FPLC and later raped by soldiers in camps underwent military training, from which we can assume that they probably carried out some military functions. The issue here is that the Trial Chamber in Lubanga embraced a much broader definition of ‘active participation in hostilities’, in order to include a wide range of children who were forcibly recruited as victims under Article 8(2)(e)(vii). It determined, in paragraph 628, that:

Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants.

At the time of the Lubanga judgment, several authors noted that this expansive definition may have unintended negative consequences for the protection of children in armed conflict. For example, Nicole Urban argued that, ‘Should the sexual exploitation of and violence against child soldiers render them ‘active’ participants in hostilities under one Article, there is a real risk that they will also be considered as active participants in hostilities under the others.’ In a sense, the chickens have now come home to roost, as the Court in Ntaganda has to marry that interpretation, which seeks to protect child soldiers as victims of forcible recruitment, with an interpretation that includes them within the ambit of Article 8(2)(e) when they become victims of other war crimes.

The Pre-Trial Chamber took the position that individuals only lose their protection ‘for such time’ as they are actively participating in hostilities, and that those who were raped and subjected to sexual violence were clearly not participating in hostilities at that time. This interpretation is somewhat problematic, as it sidesteps the situation of those members of the armed groups who bear a ‘continuous combat function‘.

Trial Chamber VI in yesterday’s decision took a rather different approach, by determining that:

While most of the express prohibitions of rape and sexual slavery under international humanitarian law appear in contexts protecting civilians and persons hors de combat 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. (para. 47)

It went on to conclude that, because the prohibition of rape had attained jus cogens status under international law (para. 51), ‘such conduct is prohibited at all times, both in times of peace and during armed conflicts, and against all persons, irrespective of any legal status’, and that it did not, therefore, need to determine whether the victims were ‘members’ of the armed forces at the relevant time (paras. 52-53).


 Judge Kuniko Ozaki, one of the three Trial Chamber judges. Picture credit.


This decision neatly sidesteps the issues surrounding the notion of active participation in hostilities raised by the Lubanga judgment. Yet, the conclusion that members of the same armed force are not per se excluded as potential victims of war crimes is a very expansive interpretation of Article 8, and one that is not fully reasoned in the judgment. The decision appears to be founded on two separate aspects.

The first is that not all war crimes need to be committed against protected persons (para. 37). The Chamber referenced a number of sub-paragraphs of Article 8(2)(e) in this regard, namely Articles 8(2)(e)(ix) and (x) on perfidy and denying that no quarter will be given, in support of this argument. This is not entirely convincing, as Article 8(2)(e)(ix) explicitly refers to killing or wounding ‘a combatant adversary’ treacherously. Article 8(2)(e)(x), prohibiting a declaration that no quarter will be given, is explicitly prohibited because it would result in the killing of persons hors de combat.

The second justification for the decision appears to be the widespread prohibition of rape and sexual violence under international humanitarian law. The Chamber considered that to limit the protection against rape to exclude members of the same armed group would be ‘contrary to the rationale of international humanitarian law, which aims to mitigate the suffering resulting from armed conflict, without banning belligerents from using armed force against each other or undermining their ability to carry out effective military operations.’ Given that there could be no military objective or justification to engage in sexual violence against any person, regardless of whether or not that person was a legitimate target under the law of armed conflict, the Chamber considered that the prohibition of sexual violence under International Humanitarian Law was not limited to certain categories of persons, and that anyone could be a victim of this war crime. This justification is more convincing, but leaves many questions unanswered, as it seems to be limited to the prohibition of rape (which the Chamber considered to be a jus cogens norm of international law). We might ask, for example, whether armed forces who commit acts of humiliating or degrading treatment against their own members, or who deny those members a fair trial, may now find that they are committing war crimes under Article 8 of the ICC Statute.

This decision is clearly founded in a desire to offer the greatest level of protection to victims of sexual violence in armed conflict, regardless of their status. A similar argument was made in the ICRC’s updated commentary to Common Article 3 of the Geneva Conventions, which stated that ‘all Parties to the conflict should, as a minimum, grant humane treatment to their own armed forces based on Common Article 3.’

It will certainly be interesting to see what states’ reactions to this expansive interpretation, and what the broader consequences of this decision, will be.

(Cross-posted from PhD Studies in Human Rights)

Write On!: Media, Persuasion and Human Rights conference

On 10 and 11 November 2014, Bangor University will host the annual conference of the Political Studies Association’s Media and Politics Group. This year’s conference theme is ‘Media, Persuasion and Human Rights’, and the keynote speakers are Professor Sue Clayton of Goldsmiths University, a film-maker whose works include the award-winning Hamedullah: The Road Home, and whose research examines media portrayals of asylum-seekers, and Professor Jon Silverman, a former BBC correspondent who is currently researching the influence of media reports of international criminal trials on civil society in Sierra Leone.

Papers are welcome on any aspect of the conference theme. The deadline for submitting abstracts is 29 August 2014. For further information, please follow this link

Conference programme: Proof in International Criminal Trials

Bangor Law School and Bangor Centre for International Law

Kindly supported by the British Academy 

Proof in International Criminal Trials

 27-28 June 2014

Reichel Building, Bangor University 


27 June 2014

13.00 Lunch

14.00 Welcome


Session 1: Approaches to Inference and Proof in International Criminal Trials

Professor William Twining (University College London) and Professor Terence Anderson (University of Miami), ‘Application of Modified Wigmorean Analysis to ICTR Cases’

Professor Paul Roberts (University of Nottingham), ‘Facing Facts’

Dr. Mark Klamberg (Uppsala University), ‘Evaluating Evidence in International Criminal Trials: Quantitative Grading, Eliminating Alternative Hypotheses or Both?’

15.30-16.00 Break


Session 2: Evaluating Evidence in International Criminal Trials

Justice Teresa Doherty (Special Court for Sierra Leone Residual Mechanism). ‘Listening and Understanding: Assessing Credibility of Witnesses in the International Tribunals’

Professor Nancy Combs (William and Mary School of Law), ‘Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions’

Mr Simon de Smet (International Criminal Court), ‘Are International Crimes Justiciable? Some Thoughts on the Volume of Evidence and the Criminal Standard of Proof’


28 June 2014 


Session 3: Trends in Evidence and Proof in the International Criminal Tribunals

Professor John Jackson (University of Nottingham), ‘To Proof or not to Proof: Procedural Divergence, Cultural Diversity, and the Integrity of Witness Evidence within the ICC’

Mr. Oliver Windridge (International Criminal Tribunal for Rwanda), ‘Inference v. Speculation: The ICTR’s Approach to Inference’

Dr. Yvonne McDermott (Bangor University), ‘(Re-)Assessing Findings of Fact on Appeal: When does the ‘Only Reasonable Conclusion’ become Unreasonable?’

11.00-11.30 Break


Session 4: The Challenges of Evidence and Proof in International Criminal Law

Dr. Triestino Marinello (Edge Hill University), ‘The Confirmation of Charges at the International Criminal Court: a Tale of Two Models’

Ms. Anna Marie Brennan (University College Cork), ‘The Complexities in Proving a Policy to Commit Crimes Against Humanity: An Analysis of the Pre-Trial Chamber’s Confirmation of the Charges Decision in the Gbagbo Case’

Ms. Shiri Krebs (Stanford University), ‘Naming, Blaming and Legal Framing: Barriers to War Crimes Investigations’

13.00-13.10 Closing Remarks

13.10 Lunch


To register, please follow this link.

Corporate criminal responsibility at the Special Tribunal for Lebanon

In a fascinating order from January of this year that was made public last month, Judge Baragwanath of the Special Tribunal for Lebanon determined that two media organisations, together with two officials from the organisations, could be prosecuted for contempt. The question of whether corporations can be held accountable for international crimes has been the subject of much debate over the past number of years, and this is the first time that an international criminal tribunal has found itself to have jurisdiction over corporations.

Article 1 of the STL’s Statute states that the Tribunal ‘shall have jurisdiction over persons responsible…’. The contempt judge did not mention this provision in his analysis, but noted that ‘no … provision of the Statute or Rules expressly limits the scope of contempt proceedings to natural persons’.  Surprisingly, Article 31 of the Vienna Convention on the Law of Treaties is not mentioned once in the decision. It would be difficult to argue that the ordinary meaning of the term ‘person’ encompasses legal, as well as natural, persons, especially in the context of a Statute that mentions ‘his or her’, ‘him or her’ and ‘himself or herself’ in relation to the accused no less than 28 times, and does not use the term ‘it’ in relation to the accused once.

To overcome this hurdle, Judge Baragwanath rather bizarrely concluded (at paras. 23-24) that the Tribunal cannot have jurisdiction over legal persons for the core crimes, but that ‘whether a legal person can be an accused under Articles 2 and 3 of the Statute is a very different question from whether a legal person can be held in contempt for knowingly and wilfully interfering with the administration of justice’. I am not sure that the two matters are so very different. Both concern the jurisdiction of the Tribunal – either it has jurisdiction over corporations, or it doesn’t.

The contempt judge drew the distinction by stating that offences against the administration of justice are designed to preserve the integrity of the judicial process and ‘under the highest procedural standards, corporate entities cannot be any more entitled than natural persons to interfere with the judicial process’. But this is not entirely convincing. It seems to suggest that corporate entities somehow have the capacity to decide to interfere with the judicial process, independently of those who are in charge of them, which is of course ridiculous. I am not convinced of the necessity of the extension of jurisdiction to the corporations in this case. The ICTY has had confidential information leaked by media organisations in the past, and has successfully prosecuted their editors and/or employees for contempt. It is not as if the responsible individuals from within the organisations were unidentifiable in the present case – they are now the co-accused of the companies that they work for!

Moreover, the reference to ‘the highest procedural standards’ seems to be out of place. The majority of the ‘him/her’ references in the Statute, which the judge sought to suggest did not apply in contempt cases, are found in Articles 15 and 16, on the rights of suspects and the accused. But of course, the same rights of the accused must apply, whether he or she is charged with the most serious crimes within the jurisdiction of the court, or offences against the administration of justice. The distinction between the two types of offence falling within the jurisdiction of the court on this basis simply does not withstand logical analysis, and might actually be read as suggesting that the individual charged with contempt is entitled to less than the highest standards of fairness.

While some might welcome the widening of the door to extending jurisdiction to corporations, the quality of the reasoning is questionable, This is another example of judicial activism from the Special Tribunal for Lebanon, and perhaps not its most well-reasoned decision to date.


Cross-posted from http://humanrightsdoctorate.blogspot.co.uk

Write On!: Proof in International Criminal Trials

bangorFrom 27-28 June 2014, Bangor Law School and the Bangor Centre for International Law will host a conference on proof in international criminal trials, kindly funded by the British Academy. Here is the conference abstract:

“There is now an impressive body of literature on the precise scope, context and application of evidentiary rules in international criminal trials. However, the issues surrounding proof and reasoning on evidence in international criminal law have remained relatively under-examined to date. By bringing together judges, practitioners and leading scholars on evidence, international criminal procedure and analytical methods, this conference will comprehensively address issues related to proof in international criminal proceedings. These issues include, inter alia, the means by which inferences are drawn, how reasoning on findings of fact is articulated in judgments, and how witness credibility is assessed. Participants will analyse some of the challenges of fact-finding in the complex context of international criminal trials, which often involve large masses of evidence and hundreds of witnesses.”

Confirmed speakers include:
• Professor Terence Anderson, University of Miami;
• Professor Nancy Combs, College of William and Mary School of Law;
• Judge Teresa Doherty, Residual Special Court for Sierra Leone;
• Professor John Jackson, University of Nottingham;
• Dr Mark Klamberg, University of Uppsala;
• Dr Yassin M’Boge, Leicester University;
• Dr Yvonne McDermott, Bangor University;
• Professor Paul Roberts, University of Nottingham;
• Professor William Twining, University College London.

There are still a limited number of places available for those who would like to present a paper at the conference. Please contact y.mcdermott@bangor.ac.uk for further information.

Apartheid and the Dunnes Stores workers strike, 1984-1987

Picture via historyireland.com In 1984, Mary Manning, an employee of Dunnes Stores, one of Ireland’s largest supermarkets, refused to check out an Outspan grapefruit. She was upholding a Union directive that none of its members would handle South African fruit or vegetables in protest to the apartheid regime. Manning was suspended immediately, bringing about a strike that was to last almost three years. The picketers lived on £21 a week for the duration of the strike, with some even losing their homes as a result. The strike ultimately ended in a ban imposed by the Irish government on the import of all products from apartheid South Africa. It is a fascinating chapter in the history of apartheid. In the words of one of the strikers: “Twelve workers got government to change the law. Even one person can make a change.”. There is a full interview with Cathryn O’Reilly, one of the Dunnes Stores workers, here. Some of Mary Manning’s thoughts on Mandela’s passing can be found here.

Ashgate Companion Symposium: Drumbl on “The Future of International Criminal Law and Transitional Justice”

drumblmDelighted to welcome Mark A. DrumblClass of 1975 Alumni Professor of Law & Director of the Transnational Law Institute at Washington and Lee University School of Law for this guest post*

Only I never saw another butterfly.
That one was the last one.
Butterflies don’t live here,
In the ghetto.[1]

A teenager, Pavel Friedmann, penned these poignant words while captive in the Terezin ghetto near Prague. Friedmann later perished in a Nazi concentration camp, along with 15,000 other Jewish children from Terezin. Friedmann knew he was being grievously wronged: his poetry makes that clear. But never would he have expected that his tormentors would come to face legal sanction. Moral condemnation, certainly, but courts of morality are for the afterlife. They are not courts of law for the worldly.

Friedmann’s suffering – along with that of millions of others – did motivate the creation of courts of law to condemn Nazi barbarity. These tribunals, principally situated in Nuremberg, were neither global nor permanent. But their work proved foundational.

The International Military Tribunal at Nuremberg (IMT) famously held that: ‘Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.’ At the time, the IMT meant to dispel the argument made by defendants that they were not guilty because they served merely as powerless cogs in an abstract criminal state. The IMT battled to ensure that personal responsibility would not be obscured by the muck and murk of the anonymity of collective violence. Continue reading

Ashgate Companion Symposium: DiBella on Equality of Arms in International Criminal Law

SCHABAS JKT(250X172)pathWe are delighted to welcome Amy DiBella for this guest post. Amy is a defence lawyer based in Pittsburgh, Pennsylvania. She wrote her chapter in the Ashgate Research Companion to International Criminal Law: Critical Perspectives with Charles C. Jalloh, Assistant Professor at the University of Pittsburgh. 

In our chapter, “Equality of Arms in International Criminal Law: Continuing Challenges”, we considered the meaning of equality of arms and how is it implemented in international criminal law.

The analysis reveals the disparity between the theory and practice. Although the principle evokes a broad evaluation of fairness, in practice, it is “a lofty goal … applied feebly”. The chapter offers multiple examples of courts shying away from equality and instead embracing a more conservative interpretation of the principle. Rather than require equal resources, the legal principle has been interpreted to require no substantial disadvantage, an adequate opportunity or sufficient time.  Following a brief discussion of the link between equality of arms and the public trial guarantee, the chapter considers how equality of arms is more than a trial right; it is an expansive institutional entitlement which relates to the structural independence of the defence offices. Continue reading

Ashgate Companion Symposium: Jacobs on “Who is in charges of the charges at the ICC: A Contribution to the Regulation 55 Debate”

dov jacobsWe are delighted to welcome Dov Jacobs for this guest post. Dov is an Assistant Professor in International Law at the Grotius Centre, Leiden University School of Law. 

I would like to thank Yvonne for inviting me to briefly introduce my chapter in the exciting new Ashgate Companion to International Criminal Law edited by herself, Niamh Hayes and William Schabas.

The Chapter focuses on the organs responsible, at the International Criminal Court, for determining the content of the charges against an accused individual and the scope and timing of any amendments that are to be made. Essentially, the framework is analyzed as a “shifting scale of power”, from the absolute discretion of the Prosecutor in the early stages of the proceedings to the final decision of the judges at the confirmation of charges. After the confirmation of charges? The only thing that can happen is for charges to be withdrawn, nothing else, according to both the Statute and the Rules.

And this is where the now famous regulation 55 of the Regulations of the Court comes in. In a nutshell, this provision allows for the trial judges to change the legal characterization of facts at any stage of the proceedings (even during final deliberations, one month before the acquit… sorry, judgment in the Katanga case, as the ICC Appeals Chamber recently confirmed). My chapter essentially argues that the adoption of this rule was ultra vires and that the rule cannot be reconciled with the statute or the RPE. The judges therefore exercised a legislative role that went beyond the scope of their functions.

The chapter is, I think, useful and interesting on a number of levels. First of all, it tries to clarify the framework on the determination of charges at the ICC, which is not an easy task, given that the drafters, in their customary search for precision, never actually bothered to define what a “charge” is in the Statute. Second of all, for those interested in the Regulation 55 saga, it presents the relevant legal, conceptual and practical dimensions that are necessary for the discussion. Third of all, it is an illustration of the more general tensions between the various organs of the Court, be in the Prosecutor or the Chambers. This aspect can easily be overlooked in the grand geopolitical scheme of things, but I think that internal bickering at international courts probably explain more of the decisions than we might think. Continue reading

Ashgate Companion Symposium: Forsythe on ‘”Political trials”? The UN Security Council and the development of international criminal law’

Fac_ForsytheWe are delighted to welcome this guest post from Prof. David Forsythe, Charles J. Mach Distinguished Professor at the University of Nebraska-Lincoln

Close observers of world affairs will recall that international criminal law (ICL) began a renaissance in 1993 when the United Nations Security Council created the International Criminal Tribunal for Former Yugoslavia.  Since that time the UNSC has been involved many times in ICL issues concerning prosecution of individuals for genocide, crimes against humanity, or war crimes.  From one point of view the Council can be congratulated for taking steps to respond to atrocities that during the Cold War were often ignored.  From another point of view the Council has been highly political and therefore highly inconsistent in that response, often showcasing not the rule of law in international relations but rather the priority of short term and parochial “national interests” of member states– above all the Permanent members with the veto (P-5).  A central question is whether in the future the Council can display more principled commitment to legal justice and less variation based on P-5 strategic political calculation.

Space does not permit an extensive review of how the Council advanced ICL and a variety of types of criminal courts since 1993 with regard not only to the former Yugoslavia but also Rwanda, Sierra Leone (with implications for Liberia), East Timor, and Lebanon.  Likewise, after the creation of the permanent International Criminal Court (ICC) by treaty during 1998-2000, the UNSC was involved in criminal justice issues in places like Sudan (Darfur) and Libya.  All of this action for increased use of courts isunitednations apart from other Council steps in response to atrocities such as deployment of security forces in the field, appointment of diplomatic personnel, imposition of sanctions, and so on.  Moreover, sometimes the Council was not centrally involved in ICL developments, as when a state such as Ivory Coast or Kenya itself (not to mention Uganda, Central African Republic, or Democratic Congo) activated the ICC directly.  There were also other ICL developments outside the UNSC pertaining to the exercise by states of the principle of universal jurisdiction for egregious crimes like torture.  Nevertheless, the Council has been persistently involved in ICL since 1993. Continue reading