31 March 2021 – ICC Appeals Chamber upholds Ntaganda conviction for war crimes and crimes against humanity in DRC, rejecting Defence and Prosecutor’s appeals

ICC Accused, Bosco Ntaganda. Photo: heconversation.com via Bing (CC).

ICC Appeals Chamber upholds Ntaganda’s conviction for war crimes and crimes against humanity in DRC: On 30 March 2021, International Criminal Court Appeals Chamber (“AC”) confirmed the conviction and sentence against Bosco Ntaganda passed by the Trial Chamber (“TC”) in July 2019. Ntaganda was found guilty of 18 counts of war crimes and crimes against humanity committed in Ituri, Congo, in 2002-2003. He was sentenced to 30 years of imprisonment, which is the longest in the Court’s history.

Ntaganda appealed the TC’s decision on multiple grounds, requesting his acquittal and a retrial. Among other things, Ntaganda argued that the TC violated his right to a fair trial by making procedural irregularities. Inter alia, Ntaganda reasoned that the TC excessively resorted to ex parte material and failed to take adequate measures to mitigate the prejudice resulting from the Prosecutor’s access to his non-privileged conversations and its non-disclosure. In rejecting these submissions, the AC made several findings. It held that ex parte proceedings are not prohibited, and that the Trial Chamber’s reliance on such proceedings was based on valid grounds – the security of witnesses and or victim applicants. The AC also argued that the TC withheld parts of the material from disclosure for valid reasons, namely the protection of witnesses and the risk of prejudice to the investigation.

Ntaganda further submitted that the TC erred in convicting him of criminals acts that were outside the scope of the charges arguing, inter alia, that the acts were not exhaustively identified in the confirmation of charges. The AC rejected this submission and held that it is not necessary to list all the criminal acts underlying each charge exhaustively. The AC also rejected Ntaganda’s challenge to the TC’s findings that some of the alleged acts formed part of an attack directed against a civilian population pursuant to, or in the furtherance of, an organisational policy. The Chamber found the TC’s conclusion on ‘organisational policy’ to be reasonable. Also, contrary to Ntaganda’s argument, the Chamber held that the element that an attack must be ‘directed against any civilian population’ does not require that ‘the main aim or object of the relevant acts was to attack civilians” and that the attack ‘may also serve other objectives or motives.’ The AC also rejected Ntaganda’s challenge to the TC’s findings on indirect co-perpetration. It held that the TC provided a reasonable assessment of the evidence concerning Ntaganda’s knowledge and intent concerning the crimes of rape, sexual enslavement and the recruitment, conscription and use of individuals under the age of 15 in hostilities. The AC also rejected the Prosecutor’s grounds of appeal on the interpretation of the term ‘attack’.

In relation to the appeal against the sentence, the AC rejected Ntaganda’s challenge to the TC’s Chamber’s assessment of the extent of his participation in and knowledge of the crimes and the alleged aggravating and mitigating circumstances. In particular, regarding mitigating circumstances, the Chamber held that given the gravity of his crimes, the alleged suffering and discrimination Ntaganda experienced during the Rwandan genocide could not diminish his culpability. For the foregoing and other reasons, the AC upheld Ntaganda’s conviction and sentence. (, , , )

Post by: Kobra Moradi. 

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