Defining ‘Attacks’: Some Reflections on the Ntaganda Case [Part I]

Rwanda-born military leader Bosco Ntaganda was convicted by the Trial Chamber VI of the International Criminal Court (“ICC”) in July 2019 for 18 charges, including 13 counts of war crimes and 5 counts of crimes against humanity. These crimes were allegedly committed in the Ituri District of the Democratic Republic of Congo (“DRC”) in 2002-2003. Here, Ntaganda was charged for, inter alia,  directing murder, rape, the use of child soldiers in warfare, and sexual slavery, in his capacity as a key leader of the Union of Congolese Patriots (“UCP”) and the UCP’s military branch, the Patriotic Forces for the Liberation of Congo (“FPLC”). In their broader aim, all these activities led by Ntaganda were directed at the ethnic cleansing of the Lendu and Hema groups in the DRC’s eastern regions, including in Ituri. 

When the Trial Chamber found him guilty on all counts, its judgment (“Trial Judgment”) was widely celebrated as the first instance where the ICC rendered a  conviction for crimes concerning sexual violence. This assumed prominence especially given the sheer number of individuals impacted. Ntaganda is known to have been involved in various armed conflicts across both Rwandan and Congolese territories. In this case alone, there were over 2,000 documented victims directly participating in the proceedings at the ICC. In its recent reparations order, the Trial Chamber has ordered that Ntaganda’s victims must be issued a collective compensation of a record 30 million USD, which would be of relief to many further thousands of individuals who did not directly engage in the proceedings. These orders were wholeheartedly welcomed as homages to those who passed away, and as victories for the surviving victims who had been awaiting justice for almost two decades. As one would expect, Ntaganda preferred an appeal on all 18 counts, including challenges of the procedural fairness of his trial. Following this, all 18 counts of appeal have recently been rejected by the majority decisions of the Five-Judge Appeals Chamber in its judgment dated March 30th, 2021 (“Appeals Judgment”). 

However, the focus of this post is not an analysis of the Appeals Chamber’s judgment’s holdings on these 18 counts of appeal. Instead, I seek to dissect the appeal simultaneously preferred by the ICC’s Prosecutor against the Trial Judgment on one point – the exact meaning of an “attack” under Article 8(2)(e)(iv) of the Rome Statute, a crime relating to non-international armed conflicts (“NIAC”). This post shall analyse this question based on the various opinions delivered by the Five Judges on this count. Here, in the first part of this post, I will explore the meaning of an “attack” from the ‘textual’ and ‘intent’ based schools of treaty interpretation. The second part of the post will consider the ‘teleological’ school of interpretation. Overall, I will argue that a mixture of all these approaches is the most fitting in this case, rather than an isolated one. Nonetheless, in the end, I shall argue that the teleological approach’s conclusions are correct. 

The Prosecutor’s Appeal

A factual question had arisen as to whether pillaging a hospital and ransacking a Church could amount to a war crime under Article 8(2)(e)(iv) (which designates “intentionally directing acts against buildings dedicated to religion [and] hospitals” a war crime). Therefore, the court had to determine whether pillaging or ransacking these buildings would amount to an “attack” under this provision. The Trial Chamber held this in the negative, thus acquitting Ntaganda on these factual counts – although the same charge under Article 8(2)(e)(iv) was attracted in other incidents from Ituri. 

The Prosecutor challenged this finding in her appeal (“Prosecutor”), arguing that the Chamber erred in ‘narrowly’ construing the meaning of an “attack”. Thus, she argued for a broader interpretation of an “attack”, and further convictions of Ntaganda on these counts. As the Prosecutor submitted, although this question is minor when compared to Ntaganda’s charges on other grievous counts, clarifying the law on this point would be of great importance for the protection of the victims of armed conflicts generally (Prosecutor, ¶3). 

However, by a majority of 4:1, the Appeals Judgment has rejected the Prosecutor’s appeal. Two Judges, Judge Morrison and Judge Hofmanski have held in favour of the narrow construal. The other three, Judge Bossa, Judge Eboe-Osuji, and Judge Carranza have argued for a broader interpretation of an “attack”. Of these three judges, two have acquitted Ntaganda for the charge, for ancillary reasons discussed in the next part of this post. Only one dissenting judge, Judge Carranza held for convicting Ntaganda on the charge of directing attacks against the hospital and the Church. 

With this backdrop, the post shall explore the varied reasonings employed in each of these opinions as to the interpretation of an “attack”. I will begin with the opinion in favour of a ‘narrow’ construal of an attack, thereafter, proceeding to the broader interpretation. The narrow construal exemplifies a combination of the ‘textual’ and the ‘intent’ schools of treaty interpretation — the first of which emphasises the ordinary meanings of treaty provisions’ wordings, and the second of which centres around the original intent of State parties (see here). 

The broader interpretation of an “attack” is based on the teleological school, which considers of utmost importance the overarching purpose, principles, and aims of a treaty, and aims to maximally implement them. In this case, this would require attention to the purposes of the Rome Statute and international humanitarian law (“IHL”). As I mentioned earlier, in the Appeals’ Judgments, none of these approaches offers a complete understanding when seen in isolation. However, before moving to these judgments, let us briefly explore the Trial Chamber’s observations. 

Trial Judgment: No ‘Attack’

There are two factual incidents for consideration here. First, in the context of a military takeover of the town of Mongbwalu, soldiers from the UPC/FPLC had looted the Mongbwalu hospital, including their medical equipment (¶¶514, 1138). The Trial Chamber categorized this incident into two parts: the takeover of Mongbwalu which involved the ‘conduct of hostilities’ (use of weapons and military force), and in its aftermath, a ‘ratissage’ operation, which involved the looting (ratissages are defined as sweep and search activities). By implication, the pillage of the Mongbwalu hospital was viewed as outside the conduct of hostilities, and therefore, seen as independent from the use of military force. Now, the Chamber defined an attack as “an act of violence against the adversary” (¶1141). Since ‘pillaging’ was not an act of violence or the use of arms, looting the hospital was not seen as an attack.

Second, UPC/FPLC soldiers coming from Mongbwalu, after they assaulted the town, entered the town of Sayo, in continuation of the ‘ratissage’ operation. Finding this to have occurred “some time after” the assault, the Chamber noted the soldiers to have ransacked the Church’s infrastructure, dug trenches around it, and set camp inside (¶526). Again, since the Chamber considered the Church incident to have occurred “after” the armed violence, it did not consider this event as an attack in the absence of a continued “conduct of hostilities” (¶1142). Given this, it held there was no attack on the Church and no attraction of Article 8(2)(e)(iv) of the Rome Statute in either case. Both these findings have been upheld by Judge Morrison and Judge Hofmanski in their common ‘separate’ opinion (“Morrison, Hofmanski, JJ.”), which confirmed this narrow construal of an “attack”. Their assertions of law shall now be explored. 

Text and Intent: Judge Morrison, Judge Hofmanski

To begin with, it requires mention that Article 8(2)(e) writes that the crimes enlisted in its sub-clauses are “within the established framework of international law” concerning NIACs. This means that its provisions should be interpreted harmoniously with IHL frameworks governing NIACs, and accordingly, fragmentations between the Rome Statute and IHL must be avoided. In other words, to understand what an “attack” is for the purpose of Article 8(2)(e)(iv), recourse must be had to its general meaning under IHL. Additional Protocol I to the Geneva Conventions, which elaborates on the protections during ‘international’ armed conflicts, defines “attacks” under Article 49 as: “acts of violence against the adversary, whether in offence or defence”. The International Committee of the Red Cross, in its commentary (¶4783) to the Additional Protocols, recognizes that this definition extends identically to Additional Protocol II to the Geneva Conventions (which relates to NIACs). 

This definitional requirement of an act of violence is no surprise. Indeed, earlier on this forum, I had explored in detail how the very understanding of an ‘armed’ conflict requires some form of use of arms, that is, the use of kinetic military force. Given this, if one considers an act of pillaging or ransacking a monument in and of itself, then that act alone ought not to amount to an “attack” for the purpose of Article 8(2)(e)(iv). There would be two concerns with the opposite view: first, it would go against how IHL understands an “attack”, which would not be allowed by the text of the provision. Second, it may result in a serious dilution of the threshold of an “attack” to an extent where actions that were not ‘reasonably’ envisioned would incur individual criminal responsibility. Such a view would have to be avoided not only based on the ‘intent’ school of treaty interpretation but also because it would contravene Article 22 of the Rome Statute, which requires crimes to be “strictly construed”, and “in favour of the person being…prosecuted”. Consequently, there is good reason to exclude pillaging or ransacking from an attack’s purview. 

These are some of the main factors which find appreciation in the combined opinion of Judge Morrison and Judge Hofmanski (Morrison, Hofmanski, JJ., ¶¶27, 29 & 41). Clearly, there is a strong emphasis on the text and original intent of the Parties. Besides this, there are two more reasons the Judges consider in upholding the narrow construal. First, Article 7(2) writes that for the purpose of Article 7(1), which specifically deals with “crimes against humanity”, an “attack” must include multiple commissions of acts of violence (a deviation from the IHL definition). Thus, where a special meaning is to be given to an “attack” in the Rome Statute, the text itself has provided for it (textual school). Second, the Judges extensively consulted the preparatory works of Article 8(2)(e)(iv) and reached the conclusion that the State parties intended for a limited meaning to be given to an “attack” (Morrison, Hofmanski, JJ., ¶¶32-39). 

All these considerations support the idea that pillaging or ransacking a property alone will not amount to an attack. However, there is a crucial question that Judge Morrison and Judge Hofmanski have failed to ask. Was the Trial Chamber correct in the first place to divide the episode into two parts, one with the military activities, and the second with the ‘ratissage’? Could the ‘ratissage’ have been a part and parcel of the military activities? If this is true, then the pillaging and ransacking would be treated as a ‘part’ or a continuation of the attack, thus attracting Article 8(2)(e)(iv). In that case, the temporal discontinuity between the military violence and the ratissage operation would become open to challenge. This question, along with the teleological readings of the other Judges, will be considered in the second part of this post. 

You can read Part II here.


Abhijeet Shrivastava is an Associate Editor at the Jindal Forum for International and Economic Laws. He is currently pursuing his B.A., LL.B. (Hons.) at Jindal Global Law School.


Image: Eva Plevier/AP

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