The International Criminal Court (ICC) has significantly extended the group of people enjoying the protection of the law against sexual violence. In a recent decision in the Ntaganda case, the judges challenged the current interpretation of international law and strengthened the fight against war-time rape.

By Benjamin Duerr, Mukwege Foundation

In their first major decision of 2017, judges at the International Criminal Court have fundamentally remodeled decade-old international laws. In the case against rebel leader Bosco Ntaganda, they decided in January that the laws of war not only protect the soldiers of the enemy from sexual violence, but also one’s own troops.

The charges Bosco Ntaganda faces

Ntaganda is charged with 13 counts of war crimes, including rape and sexual slavery. In the rebel group under his military command, the UPC/FPLC fighting in Eastern Congo, child soldiers were allegedly held as sex slaves and repeatedly raped.

However, the defense challenged the indictment and argued that these acts cannot be charged as war crimes.

According to Article 3 of the Geneva Conventions, which codify the laws of warfare, war crimes may not be committed by members of an armed force against members of the same armed force, the defense argued. Instead, war crimes could only be committed against enemy troops. Therefore, Ntaganda’s acts shouldn’t be classified as war crimes.

The judges, however, found that such an interpretation would be contrary to the underlying principle of international humanitarian law. They argued that rape and sexual slavery have long been prohibited by international law and that this prohibition is not limited to certain categories of persons. “There is never a justification to engage in sexual violence against any person,” the judges wrote in their decision. Rape and sexual slavery are “prohibited at all times, both in times of peace and during armed conflicts, and against all persons, irrespective of any legal status.”

ICC ruling adds piece in the fight against sexual violence

While this seems obvious, the decision fundamentally challenges the current interpretation of international humanitarian law. When the Geneva Conventions were adopted in 1949 they were created with the intention to mitigate and limit the suffering during war time. The inventors regulated the behavior of opposing parties and thought of enemy combatants and the civilian population – but they didn’t envision a situation where commanders mistreat their own soldiers.

In the Ntaganda case, the ICC is dealing with sexual violence crimes committed against one’s own troops for the first time.

The legal framework of wartime sexual violence is evolving

The January decision, which can be appealed, can already be considered a cornerstone of the evolving legal framework in the fight wartime sexual violence. In the past, international judges ruled that rape can amount to genocide, that it can be a crime against humanity and a means of torture, that it is committed against women and men.

The recent ruling that international humanitarian law prohibits rape and sexual slavery committed against both enemy and own soldiers adds another piece in the fight against war-time sexual violence. It extends the group of people enjoying the protection of the law and reinforces the notion that sexual violence is never a legitimate means.

Benjamin Duerr is a consultant with the Mukwege Foundation and supports the organization in its legal and advocacy work on justice and accountability. He has a background in international criminal and humanitarian law.

Pictured above: Trial Chamber VI at the hearing in ICC Courtroom I on 2 September 2015 © ICC-CPI.

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