On 3 January 2017, Trial Chamber VI of the International Criminal Court (“ICC” or “Court”), in the case of The Prosecutor v. Bosco Ntaganda, found that it has jurisdiction over counts 6 and 9 (alleged war crimes of rape and sexual slavery of child soldiers) and rejected the Defence’s challenge thereto. This decision relates only to the Chamber’s authority to adjudicate the alleged conduct. The decision is without prejudice to the guilt or innocence of the accused which will be determined only at the end of the trial.
The Defence argued that Counts 6 and 9 do not fall within the subject matter jurisdiction of the Court considering that, according to Common Article 3 to the Geneva Conventions of 1949, war crimes may not be committed by members of an armed force against members of the same armed force. Trial Chamber VI had initially ruled that the Defence’s challenge did not constitute a jurisdictional matter and that it would address this question in the judgment. However, the Appeals Chamber decided that the challenge was jurisdictional in nature and remanded the matter back to Trial Chamber VI, which allowed the parties to make updated submissions.
After examining the Defence’s submissions, as well as those of the Prosecutor and the Legal Representative of victims, ICC Trial Chamber VI found that limiting the scope of protection in the manner proposed by the Defence is contrary to the rationale of international humanitarian law, which aims to mitigate the suffering resulting from armed conflict. The Chamber further found that members of the same armed force are not as such 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, or international law more generally.
(Source: ICC-CPI Media Advisory)