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

In the previous part of this post, I explained the facts under consideration: the pillaging of the Mongbwalu hospital and the ransacking of the Church in Sayo by the UPC/FPLC forces, which were led by Ntaganda – the accused in this case. These activities, termed as a ‘ratissage’ operation by the Trial Chamber’s judgment (“Trial Judgment”) were conducted “after” the military takeover of Mongbwalu. The question of law involved before the International Criminal Court (“ICC”) was whether these facts of pillaging and ransacking amount to an “attack” under Article 8(2)(e)(iv) of the Rome Statute.  

In the previous part, I have supported the idea that IHL requires violence in these definitional imports, and I agree with the finding that pillaging or ransacking does not ipso facto amount to an attack, as evident in the combined opinion of Judge Morrison and Judge Hofmanski (“Morrison, Hofmanski, JJ.”). However, a question emerges which relates more to the specific factual situations in Mongbwalu and Sayo. As mentioned earlier, the pillaging of the hospital and the ransacking of the Church was conducted in furtherance of the UPC/FPLC’s military operations. Then, is it even possible for one to detach these events from the context of military activities? That is, would it instead be correct to view the pillaging and ransacking as a part and parcel of the conduct of hostilities by the soldiers? If it is, then these activities may very well form part of an attack. This is the question that this second part of the post shall deal with, exploring the teleological reading employed by Judge Eboe-Osuji, Judge Bossa, and Judge Carranza, before concluding.

Teleological Readings

A teleological interpretation, as discussed earlier, lends primacy to the overarching purpose of a treaty’s provisions. An interpreter would construct the principles that are evident in the treaty and adopt a view that provides them with the maximal possible reach and impact in the concerned facts. As the International Committee of the Red Cross writes in the context of the applicability of international humanitarian law (“IHL”) generally, the law must be applied to the “fullest extent required by the situation”. Thus, a treaty would be construed to best address the ‘fundamental’ problem it was created to resolve. 

Needless to say, this approach has its limits in international law as States’ intent cannot be entirely dismissed, as the international order is centred around State consent. However, if performed with some caution, such an interpretation may indeed be valid, as the Vienna Convention of the Law of Treaties, 1969, recognizes the “object and purpose” of treaties as valid interpretative aids under Article 31. In this light, I shall now turn to Judge Eboe-Osuji’s separate opinion on the Prosecutor’s appeal (“Judge Eboe-Osuji”). As mentioned in the previous part, Judge Bossa and Judge Carranza had also adopted a teleological view on this point. However, since Judge Eboe-Osuji’s judgment is far more extensive in its coverage, his views shall be this post’s focus. 

Judge Eboe-Osuji’s Interpretation 

At the outset, Judge Eboe-Osuji’s separate opinion contains detailed references to the Preamble of the Rome Statute. In particular, his emphasis is on the determination of State parties to “put an end to impunity…and…contribute to the prevention of such crimes” (Judge Eboe-Osuji, ¶119). His view reads that the idea that serious crimes must not go unpunished is the “central object” of the Rome Statute (¶120), which is used in support of a broader reading of the word “attack” under Article 8(2)(e)(iv). The same view is taken by Judge Carranza in her dissent (Appeals Judgment, ¶1167).

By a broader interpretation, Judge Eboe-Osuji’s suggestion is not that pillaging or ransacking in itself would amount to an “attack” for the purposes of IHL. Instead, his assertion is that the Trial Judgment erred in its categorization of the events in Mongbwalu and Sayo into two parts: the first as a military takeover, and the second as an independent ‘ratissage’ (¶128). Understanding ratissages (search and sweep operations) as activities to “make an area more secure in the aftermath of capturing it”, Judge Eboe-Osuji writes that “ratissage becomes part and parcel of capturing a place” (¶¶129-130). Thus, it is not just “forefront” military activities that may count as attacks, but also “rear-guard actions” such as ratissage operations, which secure the “capture” (¶131). 

In other words, acts that are ‘associated’ with the combat operations, such as taking prisoners, seizing enemy weaponry, or any remaining soldiers would be an ‘integral’ part of the attack. As Judge Bossa’s separate opinion notes, even the ‘ratissage’ operation was held in a combative fashion, where the intention of the soldiers to eliminate any resisting survivors was imminent (¶7-8). Therefore, there is merit in considering the operation a continuation of the hostilities.

Since both the Judges consider ratissage as a “part” of the military activities, the point I infer is this: if the soldiers merely pillaged and ransacked the buildings, an “attack” would not have been constituted. However, there were indeed combat operations undertaken by the UPC/FPLC which involved significant kinetic force, and it was in furtherance of this force (even if in its aftermath), that these acts occurred. Therefore, the pillaging and ransacking are not ‘severable’ from the “attack” (Judge Eboe-Osuji, ¶132). His point on inseverability resonates with the Red Cross’ position that civilians that directly participate in hostilities would not be protected when performing activities integral to said hostilities. This would include coordinated military activities, which would naturally encompass combat operations along with ratissages. Other organizations and scholars such as Schmitt, Watkin, and Toorn have taken similar views (here and here). Though not concerned with interpreting “attacks” specifically, these sources share important insights on IHL’s regard for acts “integral” to primary acts.

Hence, the minimal threshold of violence is admitted. At the same time, the exclusion of ‘rear-guard’ military activities from an “attack” is rejected. Guidance was also sought by Judge Eboe-Osuji from the International Tribunal for the former Yugoslavia’s Appeals Chamber judgment in Prosecutor v. Kunarac (2002). In relation to IHL applicability, the Chamber held that during “internal” conflicts, IHL applies until peace is reached, and thus, IHL may apply even when no “actual” fighting is taking place (¶57). Although in a different context, this reasserts IHL’s recognition of conduct which has a nexus to hostilities as relevant. 

Judge Eboe-Osuji also makes a point to trace the primary object of IHL. This is found to be the preservation and protection of human dignity during warfare (¶¶118, 121). While there is also a need to balance this with military necessity, he argues that this is enabled by the Rome Statute elsewhere, insofar as “legitimate military operations” or “fair targeting” cannot be punished (¶122). Apart from this, Article 8 should be interpreted in a way that respects the traumas of the victims and thus, their dignity (¶118). The World Court’s Wall Advisory Opinion (2004) is also instructive in this regard, where it recognized that human rights law regimes continue to protect individuals to the fullest extent possible even during armed conflicts. 

This last contention is buttressed with references to the Martens Clause, which is now part of customary international law as per the World Court. This rule allows for the “principles of humanity”, which would include dignity, to be used as interpretative aids to fill in ambiguities under IHL. Thus, the Martens Clause can support a reading of “attacks” to ensure a broader application, extending in this case to the acts of pillaging and ransacking. Demonstrating this, the Church in Sayo would hold significant cultural and symbolic value for its peoples, thus justifying the linkage with the community’s dignity. After all, monuments and religious sites have intergenerational cultural significance, which helps construct a sense of collective social identity and belonging. The impairment of these locations hurts this sense of identity, which would have further psychologically left the victims in Sayo feeling disconnected, traumatized, and undignified. These human costs of war cannot be dismissed as a crucial interpretative factor.

The Balancing Act? 

It seems there are some omissions in both the opinions discussed thus far, i.e., the combined view of Judges Morrison and Hofmanski, as well as Judge Eboe-Osuji’s opinion. In the former’s, any references to the purposes of the Rome Statute are absent. In contrast, important insights are gained from the view of Judge Eboe-Osuji’s dissections of the intent of both IHL and the Rome Statute. However, Judge Eboe-Osuji’s opinion does not consider a crucial provision acknowledged by the other two Judges: Article 22 of the Statute, which required the import of crimes to be “strictly construed” in case of ambiguities – that is, in the favour of the accused. The question emerges as to how the need for such a strict construal could be balanced with human dignity as Judge Eboe-Osuji has read it. The fact that neither opinion has acknowledged this dilemma is why I had argued previously that neither is “complete” in itself. 

There may be a way to balance these interests. First, a crucial fact is that even if these incidents are not read as “attacks”, the act of pillaging and ransacking may not have gone unpunished, because of the existence of another provision that could cover these actions as war crimes. Judge Bossa recognizes in her separate opinion (¶12) the availability of Article 8(2)(e)(xii), which criminalizes “destroying or seizing the property of an adversary”. To demonstrate this, looting medical equipment from the hospital may well count as “seizing” the adversary’s property. Unfortunately, as Judge Bossa lamented, the Prosecutor failed to bring a charge on that count as regards the hospital and Church incidents (¶15). Had that charge been brought, however, it would better have covered the facts at issue. As a result, one way of balancing the need for a strict construal with the victims’ dignity could have been as follows: an attack under Article 8(2)(e)(iv) does not cover the facts in issue (strict construal), yet Article 8(2)(e)(xii) would not let them go unpunished (victims’ dignity). In this way, the interests of both stakeholders could be heeded. 

It must be noted that Judge Eboe-Osuji is conscious of the presence of Article 8(2)(e)(xii). In the end, he concludes that by the lex specialis principle, this charge against Ntaganda cannot be sustained as Article 8(2)(e)(xii) is more tailored towards the incidents. Accordingly, he declined to overturn the Trial Judgment (¶136). However, he cautions that this does not impact the point of law he decided. As he writes, there may “be cases where the lex specialis provision may not cover the particular facts of the case”, and in such cases, the broader import of an “attack” may assume relevance to capture the accused’s culpability (¶137). It is this possibility that casts doubts upon the merits of the above attempt at balancing. The strict construal may in certain cases lead to the denial of justice to victims, and thus, act against their dignity. For instance, this is especially crucial in the case of conflicts that may involve cyber warfare. As Melzer writes elsewhere, cyber operations that lead to civilian harm during armed conflicts could be construed as integral to the acts of violence, though not attacks in and of themselves — thus retaining IHL’s threshold of kinetic force, while also not dismissing key associated activities. 

Given this, in my view, Judge Eboe-Osuji’s final holding is correct for two reasons. First, although Article 22 requires a strict construal, Article 8 reads that its provisions must be viewed “in light of” IHL. Thus, the teleological reading above detailed how pillaging and ransacking became a part of the “attack” in light of the Martens Clause. Second, at any rate, since this is a situation where favouring the accused cannot be balanced with the victims’ dignity, preference must be had for the latter – given the Statute’s purposes as he detailed. Therefore, although Article 8(2)(e)(iv) is not triggered with respect to Ntaganda’s charge (given lex specialis), the possibility for an attack to be broadly construed in future cases remains open. Since Judge Eboe-Osuji, Judge Bossa, and Judge Carranza have held for a broader interpretation of an “attack”, this position is now recognized as correct by the court’s majority view. 

Concluding Thoughts 

There is a possibility that Judge Eboe-Osuji’s conclusions may invite criticism and scrutiny by States for allegedly exceeding the intended scope of Article 8(2)(e)(iv). The argument may then proceed to highlight that this approach neglects the intent of sovereign States, leading to greater restrictions than perhaps originally intended. My response to this is two-fold. To reiterate, the broad construal of an attack does not lead to dismissing the minimal threshold of violence or kinetic force. All Judges holding for the broad construal acknowledged that some combat operations or violence must occur for these provisions to be attracted. The key is that the activities integrally associated with the violence are recognized as part of the attack. Admitting this threshold, therefore, does not dilute the definition of an attack under IHL, while also accounting for the complexity of military operations in practice. 

Second, their iteration heeds the Martens clause, and various other evidence in IHL that asserts its maximal applicability for protecting conflict victims. These facets of IHL are not new and have been created by the nearly universal practices of sovereign States themselves. The enactment of the Rome Statute itself attends to the victim-centric nature of IHL, in aiming at ensuring that their traumas are not neglected, and crimes do not go unpunished. This broad construal is, therefore, coherent as a good faith interpretation that heeds the Statute’s object and purpose.

In any case, Ntaganda’s convictions on all 18 counts carry significant implications. For one, as discussed earlier, this has brought long-awaited justice to thousands of victims, thus recognizing the validity of their trauma. It is laudable that a majority of Ntaganda’s victims, who were consulted during the trial phase, had reported their sense of security, safety, and immense emotional validation in finally finding a forum where they felt that their voices were heard, and the damage caused to their lives acknowledged. With the assistance of States to the ICC’s Trust Fund, which will be partially facilitating the reparations owed to Ntaganda’s victims, the survivors will finally find social care, rehabilitation, and restoration of family relations. This conviction, therefore, is of immense symbolic value to the ICC’s presence on the international stage. Judge Eboe-Osuji’s term as a Judge and President of the ICC has now ended. In a recent interview, he wrote that while the ICC’s performance in delivering justice (both punitive and restorative) has improved, State parties must extend further support if the ICC’s aims are to be meaningfully realized. One can only hope that this call is heeded, for the Ntaganda convictions prove the sheer importance to survivors of having a forum that effectively attends to their voices.


This is the second part of a two-part editorial by Abhijeet Shrivastava, Associate Editor at the Jindal Forum for International and Economic Laws. Click here to read Part I.


Image: ICC.

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