Symposium Intro: The ICC Considers the Definition of “Attack”

The Ntaganda case—currently pending before the International Criminal Court (ICC) Appeals Chamber—raises an issue of importance to both the law of war (international humanitarian law) community and those working in international criminal law. How should the meaning of “attack” as included in the Rome Statute war crimes provision (Article 8)[1] be interpreted? Does it mean the same thing under the law of armed conflict? The way in which the Appeals Chamber interprets “attack” may have long-term effects both inside the court and beyond.

For this reason, over the next few weeks Articles of War will host a symposium featuring differing views on the question of “attack.” Several of the experts who submitted amicus curiae briefs to the Appeals Chamber have agreed to highlight aspects of their arguments here.

This initial post serves to provide some basic background on the case and why it matters, before readers delve into the detailed legal arguments in ensuing posts. Upcoming posts include:

• A Radical Reimagining of the Concept of “Attack” by Mike Newton
• The Definition of an “Attack” under the Law of Armed Conflict by Christof Heyns, Stuart Casey-Maslen, & Thomas Probert
• Motive and Control in Defining “Attacks” by Dick Jackson
• “Attacks” against Hospitals and Cultural Property: Broad in Time, Broad in Substance by Eian Katz, Milena Sterio & Jonathan Worboys
• The Unintended Consequences of International Court Decisions by Agnieszka Jachec-Neale
• Military Considerations and the Ntaganda “Attack” Question by Sean Watts & Shane Reeves

Facts of the Case and Basis for the Prosecution’s Appeal

On July 8, 2019, the ICC Trial Chamber found Bosco Ntaganda—a former leader of an armed group during the Second Congo War—guilty of 18 counts of war crimes and crimes against humanity.[2] Ntaganda, however, was acquitted on some acts charged under Count 17. Of relevance here is Ntaganda’s acquittal of the offense of intentionally directing attacks against protected objects—specifically a church in the village of Sayo and a hospital in Mongbwalu. The Trial Chamber determined the war crime of attacking protected objects did not apply to conduct of Ntaganda’s forces at a church in Sayo or to ratissage operations that resulted in the looting of medical equipment from a hospital in Mongbwalu. At the time of assaults on Sayo and Mongbwalu, Ntaganda served as Deputy Chief of Staff and Commander of Operations for the Patriotic Forces for the Liberation of Congo (FPLC), the military wing of the Union of Congolese Patriots (UPC).

The Office of the Prosecutor appealed the acquittals a few months later, alleging that the Trial Chamber had made “two discrete errors of law” that resulted in Ntaganda’s partial acquittal of responsibility for intentionally directing attacks against protected objects. In particular, the Prosecution argues the Trial Chamber erred when it determined the war crime of attacking protected objects did not apply to conduct of Ntaganda’s forces in Sayo and Mongbwalu.

Article 8(2)(e)(iv) of the Rome Statute—the provision at issue in the appeal—states that “[i]ntentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives” constitutes a war crime when committed during a non-international armed conflict.

Specific Operations: The Church and the Hospital

The Church in Sayo

In its Judgement, the Trial Chamber determined that Ntaganda oversaw the assault on the church but was not present during the initial attack on the village. He later joined UPC/FLPC forces already in Sayo as the operation drew to a close.

In the aftermath of the attack on the village, the court found that “the UPC/FPLC set up a base inside the church in Sayo” and that Ntaganda’s forces “removed the furniture, dug trenches around the church, and started a fire inside to prepare their food.” Notably, these actions took place sometime after the attack on Sayo. The Trial Chamber concluded that because the actions in and around the church did not occur during the actual conduct of hostilities, they therefore did not satisfy the “attack” requirement of Article 8(2)(e)(iv) (paras 1136, 1142). As the conduct was only charged under Article 8(2)(e)(iv) and not under the war crime of destruction of property of the adversary (Article 8(2)(e)(xii)), the UPC/FPLC’s conduct regarding the Sayo church was not further considered by the Trial Chamber.

The Prosecution, in contrast, asserts that Article 8(2)(e)(iv) prohibits all acts of violence against “cultural” objects irrespective of whether they occur in the conduct of hostilities and, as such, also covers acts of pillaging or causing damage.

The Mongbwalu Hospital

Similarly, the Prosecution argues the Trial Chamber erred when it concluded the looting of medical equipment from the Mongbwalu hospital did not amount to an “attack.”

UPC/FPLC forces, commanded by Ntaganda, attacked Mongbwalu on November 20, 2002. In the aftermath of the attack, UPC/FPLC forces conducted a ratissage operation, which resulted in rampant looting. The Trial Chamber explains, “There was no limit on what could be looted and the members of the UPC/FPLC took anything that they wanted” (para 1044). Among the goods seized was medical equipment from the Mongbwalu hospital.

The Trial Chamber opined that the pillaging of the Mongbwalu hospital—which had only been charged by the Prosecution under the war crime of intentionally directing attacks against protected objects (Article 8(2)(e)(iv)) and not as the war crime of pillaging (Article 8(2)(e)(v)) —did not constitute an “act of violence against the adversary” and, therefore, did not constitute an attack within the meaning of Article 8(2)(e)(iv) (paras 761, 1141).

In its appeal, the Prosecution avers that the Judgment is unclear whether the Trial Chamber rejected the idea that “pillaging” of a protected object could constitute an “act of violence” for purposes of Article 8(2)(e)(iv), or whether the Trial Chamber did not consider the incident an attack because—as in the case of the church in Sayo—the incident did not occur during the conduct of hostilities. Notably, the Judgment clearly states that “contrary to the Prosecution’s assertion,” the Trial Chamber did not consider “pillaging of protected objects” to be “‘act of violence against the adversary’ and, consequently, it does not constitute an attack within the meaning of Article 8(2)(e)(iv) of the Statute” (para 1141).

Why It Matters

Following the Prosecution’s appeal, the Trial Chamber sentenced Ntaganda to 30 years imprisonment. Irrespective of the Appeal Chamber’s decision, Ntaganda will remain imprisoned given the multitude and seriousness of the counts for which he was found guilty. Moreover, his sentence is unlikely to change even if the Prosecution wins its appeal. Even the Office of the Prosecutor acknowledged in its appeal brief that the two counts “may seem relatively minor given the gravity and variety of conduct for which Mr Ntaganda was otherwise found guilty…” So why does this discussion matter?

Both the Office of the Prosecutor and the Appeals Chamber have indicated they see importance beyond this particular case.

The Prosecution has said that these issues “illustrate important matters of legal principle” and “[a]s such, confirming and clarifying the law on these points will not only be of general importance for the practice of this Court, but will contribute to the better protection of the victims of armed conflict around the world.”

The fact that the Appeals Chamber has solicited qualified jurists in the fields of international humanitarian law and international criminal law to submit amicus curiae briefs to the court to inform its understanding of what constitutes an “attack,” also speaks to the importance that the court places on these legal questions.

As various experts in this symposium will explain in their posts, the way “attack” is understood by the court will have potential consequences both within the court and beyond. If “attack” is understood to have a broad scope, this could mean that other provisions within the Rome Statute will be interpreted similarly. It could set a precedent for future cases. Beyond the ICC, a broad interpretation of “attack” could risk fragmenting international criminal law and the law of armed conflict, and lead to uncertainty. And, as a number of the retired officers point out, a broad interpretation of “attack” can have operational implications for States and their militaries.

As the Appeals Chamber considers the meaning of “attack,” we hope this symposium can help frame some of the issues that will shape the court’s ultimate decision.

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LTC Ronald Alcala is an Assistant Professor in the Department of Law at the United States Military Academy, West Point, N.Y. and Managing Editor of Articles of War.

Dr. Sasha Radin is Director of Research and Publications at the Lieber Institute at West Point and Managing Editor of Articles of War.

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Footnotes

[1] Article 7 of the Rome Statute, which deals with crimes against humanity, also includes the word “attack.” This version of “attack” is defined in Article 7(2)(a) and is different from the word “attack” as used in Article 8. The present symposium will only address the meaning of “attack” under Article 8 of the Rome Statute and under the law of armed conflict.

[2] These included murder, rape, sexual slavery, pillage, persecution, conscription of child soldiers, intentionally directing attacks against civilians, intentionally directing attacks against protected objects, destroying the enemy’s property, forcible transfer and ordering the displacement of the civilian population, and using children to participate actively in hostilities.