Prosecutor v. Bosco Ntaganda

Following government instability, the Democratic Republic of the Congo experienced armed conflicts among numerous armed groups. Bosco Ntaganda (defendant) was a military leader in one armed group, the Union des Patriotes Congolais or Union of Congolese Patriots. The prosecutor of the International Criminal Court (ICC) charged Ntaganda with numerous war crimes, ranging from ethnic cleansing to forcibly recruiting children to be soldiers. Two charges alleged that Ntaganda was criminally responsible for his forces raping child soldiers and using them as sexual slaves. Ntaganda objected that crimes by an armed group against its own members were not war crimes that fell under the ICC’s jurisdiction but rather were domestic crimes governed by other tribunals. Specifically, Ntaganda argued that (1) war crimes were limited to crimes against individuals protected by Common Article 3 or other parts of the Geneva Conventions and (2) the conventions did not protect anyone actively participating in hostilities, especially from members of the individual’s own group. Under this argument, because the child soldiers were participating in hostilities, even if that participation was involuntary, crimes by members of Ntaganda’s group against its own child soldiers could not be war crimes. The trial chamber disagreed, ruling that a member of an armed group could commit a war crime against another member of the same group and, therefore, that the ICC had jurisdiction over the charges that Ntaganda allowed his forces to commit sexual violence against the child soldiers in his group. Ntaganda appealed to the ICC’s appeals chamber.