## Facts

- Bosco Ntaganda, a senior commander in the UPC/FPLC armed group, was prosecuted in connection with the non-international armed conflict in Ituri, Democratic Republic of the Congo.
- The prosecution charged Ntaganda with, among other crimes, rape (Count 6) and sexual slavery (Count 9) as war crimes under Rome Statute article 8(2)(e)(vi), based on acts committed against UPC/FPLC child soldiers.
- The defence argued the ICC lacked jurisdiction because war crimes of rape and sexual slavery require victims to be “protected persons” under international humanitarian law (IHL), and child soldiers within the same armed group were not protected in that sense and were participating in hostilities.
- A trial chamber initially treated the argument as non-jurisdictional, but the appeals chamber held the victim-category question was jurisdictional and remanded.
- On remand, the trial chamber held article 8(2)(e)(vi) is not limited to crimes against civilians or other “protected persons,” and it sustained the Court’s jurisdiction over Counts 6 and 9.
- Ntaganda appealed that second jurisdiction decision under Rome Statute article 82(1)(a).

## Issues

1. Whether Rome Statute article 8(2)(e)(vi) (and by implication article 8(2)(b)(xxii)) limits the possible victims of rape and sexual slavery war crimes to “protected persons,” civilians, or persons hors de combat.
2. Whether rape and sexual slavery committed by members of an armed group against child soldiers within the same armed group can qualify as war crimes in a non-international armed conflict.
3. Whether interpreting article 8 to cover such “intra-party” conduct violates the legality principle in Rome Statute article 22 by improperly extending criminal liability.

## Decision

- The Appeals Chamber unanimously affirmed the trial chamber’s ruling and dismissed the appeal.
- The Court held rape and sexual slavery war crimes under articles 8(2)(b)(xxii) and 8(2)(e)(vi) may be committed against members of the same armed force or group, including child soldiers.
- The Court rejected a requirement that victims be “protected persons,” civilians, or otherwise not participating in hostilities.
- The Court stressed that the decisive condition is the armed-conflict nexus: the conduct must occur “in the context of and [be] associated with” an armed conflict.
- The Court held that this interpretation does not breach the legality principle because it follows the ordinary meaning of the statutory text rather than extending it by analogy.

## Legal Principles

- For rape and sexual slavery war crimes under Rome Statute article 8(2)(e)(vi), the statute’s text does not impose a victim-status limitation to civilians, “protected persons,” or persons hors de combat.
- War crimes are defined primarily by prohibited conduct plus a sufficient nexus to an armed conflict; victim membership in the same party to the conflict does not, by itself, exclude liability.
- “Intra-party” sexual violence can constitute a war crime when the acts are contextually linked to the armed conflict and associated with the functioning or operations of an armed force or group.
- A legality objection under Rome Statute article 22 fails where the court applies the ordinary meaning of the statutory terms, in context and consistent with the statute’s object and purpose, rather than creating new elements by analogy.
- The armed-conflict nexus requirement functions as a limiting principle that distinguishes war crimes from purely private criminality.

## Conclusion

The Appeals Chamber confirmed that the ICC has jurisdiction to try rape and sexual slavery as war crimes even when committed by an armed group against its own child soldiers, so long as the crimes are sufficiently connected to the non-international armed conflict; victim “protected person” status is not a required element under article 8(2)(e)(vi).


Prosecutor v. Ntaganda, Case No. ICC-01/04-02/06 OA5 (ICC App. Ch. 2017)