On June 15, 2017, the Appeals Chamber of the International Criminal Court (ICC) unanimously affirmed the court’s power to bring charges against Bosco Ntaganda for war crimes of rape and sexual slavery committed against child soldiers. Ntaganda served as a Deputy Chief of the General Staff for the Force Patriotiques pour la Libération du Congo (FPLC), the military arm of the Union of Congolese Patriots party, during the 2002-2003 armed conflict in Ituri, Democratic Republic of Congo (DRC). While in this post, Ntaganda allegedly assisted in the conscription, training, and sexual assault and slavery of thousands of child soldiers under the age of 15. The ICC Trial Chamber VI charged Ntaganda with 13 war crimes stemming from this conflict, including crimes perpetrated against the child soldiers under his control. He appealed the counts of sexual war crimes, claiming the court had no jurisdiction over adjudicating instances of rape and sexual slavery perpetrated against child soldiers by members of the same armed group.
Issues regarding the ICC’s jurisdiction over child soldier sexual assault charges first surfaced in the trial of Thomas Lubanga Dyilo, another leader for the FPLC. During Dyilo’s trial, the initial list of charges did not include any mention of alleged sexual abuse against the FPLC’s child soldiers. While Dyilo was eventually convicted of recruiting child soldiers, the ICC trial court refused to rule on allegations that he raped and sexually enslaved child soldiers. This was a result of the prosecution’s failure to introduce evidence supporting these charges before the confirmation of Dyilo’s charges, making their evidence inadmissible.
When Ntaganda’s proceedings began, ICC prosecutors tried again, including counts of sexual war crimes committed against the FPLC child soldiers in their original list of charges. At pretrial, Ntaganda argued that while International Humanitarian Law (IHL) prohibits the use of child soldiers, it does not address issues of violence between members of the same military. For this reason, Ntaganda’s defense claimed IHL was not applicable in cases of child soldier sexual abuse by their commanders and did not constitute war crimes under the ICC’s jurisdiction. However, the prosecution argued that both the “general” and “special” levels of protection for child soldiers cited in the Geneva Conventions and IHL enabled the court to classify the FPLC child soldiers as victims of sexual war crimes.
Article 3 of the Geneva Conventions classifies general protections as the humane treatment of soldiers in armed conflict, guarding them from “violence to life and person” and “outrages on personal dignity.” Additionally, Article 4 of the second Additional Protocol to the Geneva Conventions (Protocol II) extends special protections to children, citing that “the special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take direct part in hostilities.”
The trial court agreed with the prosecution, ruling that sexual assault of child soldiers by their commanding officers is a matter of IHL and therefore subject to protections established by Articles 7 and 8 of the Rome Statute. This was crucial because Article 8 specifically states that the protections listed are considered in the “framework of international law.” Therefore, the ruling that crimes committed against child soldiers by members of the same armed forces falls under IHL provided the ICC with jurisdiction over the crimes and allowed the charges to stand.
The Appeals Chamber upheld this decision, officially extending the Rome Statute’s protections and the ICC’s jurisdiction to victims of rape, sexual assault, or sexual slavery during armed conflicts, regardless of their relationship to their perpetrator. This sweeping decision pushed forward the protections under international humanitarian law and allowed for a broader application of the Rome Statute. It affords child soldiers another layer of protection on top of the well-established war crimes charges for conscription and abuse. For example, in situations where the components of an armed uprising involving child soldiers are not deemed systemic or widespread enough to constitute a crime against humanity, if there is proven sexual abuse of the child soldiers the ICC can still assert jurisdiction and bring a case.
Additionally, this case shed more light on girls and their involvement as child soldiers. Prior observations have focused more on young men and boys and their violent, forced conscription during armed conflicts. However, the plight of the young women and girls in the FPLC demonstrates that girls are not only victims of forced sexual slavery, but are utilized across multiple roles during a conflict. Nearly 40 percent of child soldier recruits are female as they are seen as easily manipulated and naturally obedient, making them appealing recruits. From scouting to combat, girls go beyond the commonly adopted view of “silent victims” and this case helps recognize female child soldiers in concurrent rights; as both child soldiers and victims of sexual abuse.
While this case namely benefits female child soldiers in a new way, it also raises awareness that male child soldiers are also vulnerable to sexual abuse. The brainwashing and fear tactics used to assert control over young boys recruited as child soldiers often includes sexual violence. This can mean rape and abuse by their fellow child soldiers and commanders or instances where they are forced to rape civilian women and girls. Sexual violence was rampant throughout the FPLC, and commanding officers routinely allowed female child soldiers to be passed between their fellow soldiers as sexual objects. Thus far, the ICC and other international courts and tribunals have failed to recognize the complex issue of sexual violence against men and boys, often times classifying such crimes as torture or inhumane treatment.
Male victims of sexual assault are largely invisible, and ignoring or misclassifying these crimes perpetuates the stigmas erroneously attached to the issue, including the labeling of male victims as weak or homosexual. However, the Ntaganda case applies a more expansive and inclusive view of the abuse of child soldiers, both for girls and boys that are enlisted. Viewing them as victims of both their conscription and their sexual abuse opens the door for a deeper understanding of their circumstances and what should be done to provide them with justice.
Perhaps most importantly, by adopting a parallel view of the abuses suffered by child soldiers and recognizing these crimes under the Rome Statute, the ICC has contributed to raising the level of accountability for crimes of sexual violence under international law. From this ruling, governing bodies within IHL can facilitate wider discussions of sexual violence and its context within, and relationship to, war crimes and how they are identified and prosecuted.
The ICC’s decision to categorize acts of sexual violence against child soldiers by the same members of an armed group not only sets a new precedent for the court, but also expands the lens through which it examines the overarching issue of sexual violence. This case serves to further clarify the rights of child soldiers under IHL while opening the door for greater awareness and accountability.