The Appeals Chamber at the International Criminal Court (ICC) is seeking the views of experts in international humanitarian and criminal law on the appeal of the prosecutor against aspects of Bosco Ntaganda’s conviction. The experts should express their interest to provide observations by August 14, 2020.

Last year, Trial Chamber VI convicted Ntaganda on all 18 counts of war crimes and crimes against humanity charged by the prosecutor. However, the prosecutor has appealed a portion of the conviction decision in which the trial chamber acquitted Ntaganda of responsibility for attacks on a church at Sayo and a hospital in Mongbwalu town.

According to the prosecution, while these incidents may seem relatively minor given the gravity and variety of conduct for which Ntaganda was convicted, they illustrate important matters of legal principle. As such, the prosecution submits that confirming and clarifying the law on these points “will not only be of general importance for the practice of this Court, but will contribute to the better protection of the victims of armed conflict around the world.”

The prosecutor has asked appeals judges to reverse the trial chamber’s findings that the attack by Ntaganda’s militia on the church and the hospital did not fall under Article 8(2)(e)(iv) of the court’s statute; to convict Ntaganda for these incidents; and to adjust his sentence accordingly. Article8(2)(e)(iv) specifies the war crime of “intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.”

In the conviction decision, the trial chamber considered that pillaging of Mongbwalu hospital was not an “act of violence against the adversary” and thus did not constitute an attack under Article 8(2)(e)(iv). Similarly, the trial chamber found that since the attack on the church took place after Ntaganda’s fighters had assaulted Sayo village and not during the actual conduct of hostilities, the elements of Article 8(2)(e)(iv) were not met.

The prosecutor has argued that the trial chamber misinterpreted Article 8(2)(e)(iv) by failing to acknowledge the principles underlying the protection afforded to cultural objects such as the Sayo church and to Mongbwalu hospital and places where the sick and wounded are collected.

In an order issued last week, the Appeals Chamber noted that, in her appeal the prosecutor raises a legal issue related to the meaning of the term “attack” in Article 8(2)(e)(iv) that may have implications beyond the present case. Accordingly, the Appeals Chamber considered it desirable to receive observations from experts in international humanitarian and criminal law. Those wishing to provide observations should express their interest to the court’s Registrar, indicating their expertise and providing summary conclusions on the issues they wish to address.

The chamber has specified the main questions to be addressed as follows:

• How is “attack” defined under international humanitarian law, particularly in the context of cultural property and hospitals? What are the differences between the concepts of “attack,” “conduct of hostilities,” and “combat action?” What is the difference between “attack” and “act of hostility?”
• What does the term “attack” mean in Article 8(2)(e)(iv) of the Rome Statute? Does it cover acts such as pillaging and destruction? Would it cover acts committed in the course of a ratissage operation, conducted shortly after the takeover of a town?

Due to the present circumstances related to the COVID-19 pandemic, the chamber will specify a procedure for receiving observations from the experts – in writing or at a hearing, including through virtual participation if necessary. The hearing on the prosecutor’s appeal, and on Ntaganda’s appeals against the conviction and sentence, was  postponed indefinitely last month due to the COVID-19 situation.