By Cyber Era Reporter

On March 30, 2021, the Appeals Chamber of the International Criminal Court (ICC)  delivered its judgments confirming, by majority, the decision of Trial Chamber VI (“Trial Chamber”) of July 8, 2019, which found Bosco Ntaganda guilty of 18 counts of war crimes and crimes against humanity, committed in Ituri, Democratic Republic of the Congo, in 2002-2003. Furthermore, the Appeals Chamber unanimously confirmed the Trial Chamber’s decision of 7 November 2019, by which Mr. Ntaganda was sentenced to a total of 30 years of imprisonment. The conviction and the sentence are now final.

Ntaganda and the Prosecutor had appealed the verdict and Ntaganda appealed the sentencing judgment. In today’s hearing, Judge Howard Morrison, Presiding Judge in these appeals, read a summary of the judgments in open court in the presence of Ntaganda. Due to the COVID-19 restrictions the judgment was delivered on a partially virtual basis, with participation either from the seat of the Court, or from separate locations outside the Court.

The Appeals Chamber found that Ntaganda did not demonstrate that his right to a fair trial was violated and also determined that, in convicting Ntaganda, the Trial Chamber did not exceed the facts and circumstances described in the charges. The Appeals Chamber also rejected his challenge to the Trial Chamber’s finding that the crimes for which he was found to be criminally responsible were part of an attack directed against a civilian population pursuant to, or in furtherance of, an organisational policy. It further rejected Ntaganda’s challenge to the Trial Chamber’s findings on indirect co-perpetration. The Appeals Chamber also found that the Trial Chamber provided a reasonable assessment of the evidence regarding Ntaganda’s knowledge and intent of the crimes of rape and sexual enslavement of individuals under the age of 15, the recruitment, conscription and use of individuals under the age of 15 in hostilities and in relation to the remaining crimes. The Appeals Chamber also rejected the Prosecutor’s grounds of appeal on the interpretation of the term ‘attack’ in article 8(2)(e)(iv) of the Rome Statute.

In relation to the appeal against the sentence imposed, the Appeals Chamber rejected Ntaganda’s challenge to the Trial Chamber’s assessment of his degree of participation in and knowledge of the crimes, including the crime of sexual enslavement and rape of civilians. Likewise, Ntaganda’s challenges to the Trial Chamber’s assessment of alleged aggravating circumstances (related to the crime of intentionally directing attacks against civilians) and mitigating circumstances (including the suffering and discrimination that he had endured as a result of his experience in the Rwandan genocide) were also rejected. Notably, with regard to the latter, the Appeals Chamber found that Ntaganda’s personal experience in the Rwandan genocide could not diminish his culpability given his criminal conduct and the gravity of the crimes for which he was convicted.

The Appeals Chamber in these appeals was composed of Presiding Judge Howard Morrison, Judge Piotr Hofmański, Judge Luz del Carmen Ibáñez Carranza, Judge Solomy Balungi Bossa and Judge Chile Eboe-Osuji. Separate opinions were appended to the Appeals Chamber’s Judgments. In their opinions, Judges Hofmański, Morrison, Eboe-Osuji and Bossa discuss the meaning of ‘attack’ in article 8(2)(e)(iv) of the Statute. In his opinion, Judge Morrison discusses indirect co-perpetration. In her opinion, Judge Ibáñez discusses the contextual elements of crimes against humanity, in particular, the requirement of a State or organisational policy to commit a widespread or systematic attack against any civilian population, and indirect co-perpetration as a mode of liability enshrined in article 25(3)(a) of the Statute. Finally, in his opinion, Judge Eboe-Osuji discusses the use of prior recorded statements, indirect co-perpetration and the legal interpretation of a State or organisational policy to commit an attack directed against any civilian population.