International Criminal Court: review of judgment of Appeals Chamber of 15 June 2017 in the case of Prosecutor v. Bosco Ntaganda (case no. ICC-01/04-02/06)

This review is on the judgment of the Appeals Chamber of the International Criminal Court in the case of Prosecutor v. Bosco Ntaganda concerning the war crimes of rape and sexual slavery of child-soldiers committed by the armed forces or groups of which the child soldiers are members. The Appeals Chamber concluded that according to the ordinary meaning, context, and drafting history of Articles 8(2)(b)(xxii) and (e)(vi) of the Rome Statute regarding the “established framework of international law”, members of armed forces or groups are not excluded from protection against the war crimes of rape and sexual slavery committed by other members of the same armed force or group. Thus, having a status of “protected persons” is not a requirement to be a victim of the war crimes of rape and sexual slavery. Accor­ding to the Court, international humanitarian law does not generally exclude persons belonging to the same armed force or group from protection. While Geneva Conventions III and IV protect persons who have become prisoners of war or appeared under an occupying power, Geneva Conventions I and II protect the wounded and sick “in all circumstances” without excluding violations committed by members of their own armed force. Common Article 3 provides for unqualified protection against inhumane treatment irrespective of a person’s affiliation. Therefore, in the absence of any general rule excluding members of armed forces from protection against violations by members of the same armed force, there are no grounds for assuming the existence of Status Requirements specifically for the war crimes of rape and sexual slavery.

Citation: (2017) Mezhdunarodnyy ugolovnyy sud: obzor postanovleniya Apellyatsionnoy palaty ot 15 iyuny 2017 goda po delu Prokuror protiv Bosco Ntagandy[International Criminal Court: review of judgment of Appeals Chamber of 15 June 2017 in the case of Prosecutor v. Bosco Ntaganda (case no.ICC-01/04-02/06)]. Mezhdunarodnoe pravosudie, no.4, pp.34–38. (In Russian).