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No. ICC-01/04-02/06 23 February 2017 Original ICC-01/04-02/06-1798 23-02-2017 1/38 NM T OA5 Original: English No.: ICC-01/04-02/06 Date: 23 February 2017 THE APPEALS CHAMBER Before: Judge Sanji Mmasenono Monageng, Presiding Judge Judge Christine Van den Wyngaert Judge Howard Morrison Judge Piotr Hofmański Judge Raul C. Pangalangan SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO IN THE CASE OF THE PROSECUTOR v. BOSCO NTAGANDA Public Former Child Soldiers’ observations on the “Appeal from the Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9” Source: Office of Public Counsel for Victims (CLR1) No. ICC-01/04-02/06 1/38 23 February 2017 ICC-01/04-02/06-1798 23-02-2017 2/38 NM T OA5 Document to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Counsel for the Defence Ms Fatou Bensouda Mr Stéphane Bourgon Mr James Stewart Mr Chris Gosnell Ms Helen Brady Ms Nicole Samson Legal Representatives of the Victims Legal Representatives of the Applicants Ms Sarah Pellet Mr Mohamed Abdou Mr Dmytro Suprun Ms Anne Grabowski Unrepresented Victims Unrepresented Applicants (Participation/Reparation) The Office of Public Counsel for The Office of Public Counsel for the Victims Defence States’ Representatives Amicus Curiae REGISTRY Registrar Counsel Support Section Mr Herman von Hebel Victims and Witnesses Unit Detention Section Victims Participation and Reparations Other Section No. ICC-01/04-02/06 2/38 23 February 2017 ICC-01/04-02/06-1798 23-02-2017 3/38 NM T OA5 I. INTRODUCTION 1. The Common Legal Representative of the former child soldiers (the “Legal Representative”) hereby files her response to the “Appeal from the Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9” (the “Document in Support of the Appeal”).1 2. The Trial Chamber’s conclusions in the Impugned Decision were properly reasoned, adequately supported and clearly articulated. In its Document in Support of the Appeal, the Defence fails to identify any clear or discernible errors that may have tainted the finding that counts 6 and 9 fall within the jurisdiction of the Court. 3. The Defence’s assertions made in respect of the Impugned Decision are based on (1) selective and incomplete references to academic commentary; (2) a misconception of the text, context and drafting history of the Rome Statute; (3) an improper and biased consideration of the legal instruments on international humanitarian law; (4) a misapprehension of the “status requirements” and other various elements of the law on armed conflict; (5) an erroneous interpretation of the expression “established framework of international law” and (6) an undue reliance on the Prosecution pleadings made in the course of litigation. 4. These errors and misapprehensions can only lead to the unreasonable and inherently incongruous position that rape and sexual slavery are irreprehensible acts, and may go unpunished, under international humanitarian law when committed intra-force against child soldiers. As detailed infra, the arguments and submissions put forward by the Defence are untenable and do not undermine the legal findings made in the Impugned Decision. 1 See the “Appeal from the Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9”, No. ICC-01/04-02/06-1754 OA 5, 26 January 2017. No. ICC-01/04-02/06 3/38 23 February 2017 ICC-01/04-02/06-1798 23-02-2017 4/38 NM T OA5 II. PROCEDURAL HISTORY 5. On 1 September 2015, the Defence filed the “Application on behalf of Mr Ntaganda challenging the jurisdiction of the Court in respect of Counts 6 and 9 of the Document containing the charges”.2 6. On 9 October 2015, Trial Chamber VI (the “Trial Chamber”) issued the “Decision on the Defence's challenge to the jurisdiction of the Court in respect of Counts 6 and 9”, in which it rejected the challenge on the basis that it was not jurisdictional.3 7. On 22 March 2016, the Appeals Chamber reversed the Trial Chamber’s determination, holding that the issue raised was jurisdictional, and remanded the matter to the Trial Chamber for further review.4 8. On 4 January 2017, the Trial Chamber issued the “Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9” whereby it dismissed the Defence’s jurisdictional challenge (the “Impugned Decision”).5 9. On 10 January 2017, the Defence filed the “Appeal on behalf of Mr Ntaganda against Trial Chamber VI’s ‘Second decision on the Defence’s challenge to the 2 See the “Application on behalf of Mr Ntaganda challenging the jurisdiction of the Court in respect of Counts 6 and 9 of the Document containing the charges”, No. ICC-01/04-02/06-804, 1 September 2015. 3 See the “Decision on the Defence's challenge to the jurisdiction of the Court in respect of Counts 6 and 9” (Trial Chamber VI), No. ICC-01/04-02/06-892, 9 October 2015. 4 See the “Judgment on the appeal of Mr Bosco Ntaganda against the “Decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9”(Appeals Chamber), No. ICC- 01/04-02/06-1225 OA2, 22 March 2016, para. 40. 5 See the “Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9”(Trial Chamber VI), No. ICC-01/04-02/06-1707, 4 January 2017 (the “Impugned Decision”). No. ICC-01/04-02/06 4/38 23 February 2017 ICC-01/04-02/06-1798 23-02-2017 5/38 NM T OA5 jurisdiction of the Court in respect of Counts 6 and 9’, ICC-01/04-02/06-1707” (the “Appeal”).6 10. On 17 January 2017, the Defence filed the “Application on behalf of Mr Ntaganda for variation of time limit for the filing of the document in support of the Appeal”.7 The Prosecution and the Legal Representative opposed the request.8 On 23 January 2016, this request was rejected by the Chamber.9 11. On 25 January 2017, the Appeals Chamber issued the “Directions on the submission of observations pursuant to article 19(3) of the Rome Statute and rule 59(3) of the Rules of Procedure and Evidence”10 specifying that “victims […] may submit observations on Mr Ntaganda’s document in support of the appeal and on the response thereto within five days of notification of the response”.11 12. On 26 January 2017, the Defence filed the Document in Support of the Appeal.12 6 See the “Appeal on behalf of Mr Ntaganda against Trial Chamber VI’s ‘Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9’, ICC-01/04-02/06- 1707”, No. ICC-01/04-02/06-1710 OA5, 10 January 2017. 7 See the “Application on behalf of Mr Ntaganda for variation of time limit for the filing of the document in support of the Appeal”, No. ICC-01/04-02/06-1720 OA5, 17 January 2017. 8 See the “Prosecution’s response to Mr Ntaganda’s application for variation of time limit for the filing of the document in support of the Appeal”, No. ICC-01/04-02/06-1734 OA5, 19 January 2017; the “Former Child Soldiers’ response to the ‘Application on behalf of Mr Ntaganda for variation of time limit for the filing of the document in support of the Appeal’”, No. ICC-01/04-02/06-1735 OA5, 20 January 2017. 9 See the “Decision on the ‘Corrected version of ‘Application on behalf of Mr Ntaganda for variation of time limit for the filing of the document in support of the Appeal’, 17 January 2017, ICC-01/04-02/06- 1720’” (Appeals Chamber), No. ICC-01/04-02/06-1738 OA5, 23 January 2017. 10 See the “Directions on the submission of observations pursuant to article 19(3) of the Rome Statute and rule 59(3) of the Rules of Procedure and Evidence” (Appeals Chamber), No. ICC-01/04-02/06-1753 OA5, 25 January 2017. 11 Idem, p. 3. 12 See the Document in Support of the Appeal, supra note 1. No. ICC-01/04-02/06 5/38 23 February 2017 ICC-01/04-02/06-1798 23-02-2017 6/38 NM T OA5 13. On 17 February 2017, the Prosecution filed its “Response to Ntaganda’s ‘Appeal from the Second Decision on the Defence’s Challenge to the Jurisdiction of the Court in respect of Counts 6 and 9’” (the “Prosecution’s Response”).13 III. OBSERVATIONS A. Scope of appellate review 14. The question remanded to the Trial Chamber, and which constitutes the subject-matter of the Impugned Decision giving rise to the present Appeal, is whether “article 8 (2) (e) (vi) of the Statute cannot, as a matter of law, cover rape and sexual slavery of child soldiers in the same armed group as the perpetrator”.14 In other words, it concerns whether “8 (2) (e) (vi) of the Statute per se excludes from its ambit the acts of rape and sexual slavery against child soldiers as charged in this case”.15 15. The Defence appears to place particular emphasis on the Prosecutor’s submissions and pleadings as a basis for arguing that counts 6 and 9 fall outside the jurisdictional ambit of the International Criminal Court (the “ICC” or the “Court”).
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