- Toby Cadman
The ICC sentences Bosco Ntaganda to 30 years’ imprisonment
Today, Bosco Ntaganda, former Deputy Chief of the Staff and commander of operations of the Forces Patriotiques pour la Libération du Congo or ‘FPLC’ (in English, Patriotic Forces for the Liberation of Congo) was sentenced to 30 years in prison by the International Criminal Court (ICC). This sentence is the longest that the ICC has ever imposed.
On 8 July 2019, Ntaganda was found guilty of 18 counts of war crimes and crimes against humanity, being the first person to be convicted of sexual slavery by the ICC. The crimes were committed in Ituri, a northeastern region of the Democratic Republic of the Congo (DRC), between 2002 and 2003. The Trial Chamber VI of the ICC analyzed the individual criminal responsibility of Mr. Ntaganda in the context of his membership to and conduct within the FPLC, the military wing of the Union of Congolese Patriots (UPC), a political group of the DRC led by Thomas Lubanga and mainly associated with the Hema ethnic group.
The FPLC was involved in an ethnic conflict, in Ituri, between 6 August 2002 and 31 December 2003, where they implemented a strategy to target the civilian population of the region and, specifically, the members of the Nationalist and Integrationist Front, associated with the Lendu ethnic group.
The Sentencing Judgment
The sentencing judgment comes at an important time where the ICC has received a great deal of criticism. In its 117-page decision, issued today, the ICC reminded that, according to the Preamble of the Rome Statute, with these sentences the Court’s pursues the double objective of deterrence and retribution: “the most serious crimes of concern to the international community as a whole must not go unpunished’. Furthermore […] a sentence should be adequate to discourage a convicted person from recidivism(individual deterrence), as well as to ensure that those who may consider committing similar crimes are dissuadedfrom doing so (general deterrence).” (emphasis added).
In order to make a decision regarding the length of the sentence, in this interesting ruling, the ICC conducted an analysis of the crimes against humanity and war crimes committed by Ntaganda, taking into account that certain crimes were wholly or in part based on the same conduct. Accordingly, the ICC addressed several crimes jointly, distributing its analysis according to protected interests: crimes against life(Counts 1-3); (ii) sexual violence(Counts 4-9); (iii) crimes against property or civilian objects(Counts 11, 17-18); (iv) forcible transferand ordering displacement (Counts 12-13); (v) persecution(Count 10); and (vi) recruitmentof children under the age of 15 into the UPC/FPLC and their use in hostilities (Counts 14-16).
The ICC started by analyzing the gravity and the aggravating circumstances of each crime that Ntaganda was convicted of, subsequently studying his individual circumstancesto determine the final sentence:
Regarding the gravity of Ntaganda’s conduct, the ICC took into account:
1. The impact as well as the scale of the crimes committed, placing particular attention on the number of victims, the manner the crimes were committed, and the consequences of such actions. In this regard, the fact that murders occurred regularly and repeatedly in several different locations and that some individuals who survived or witnessed these crimes still bear permanent or irreversible scars, were factors that were weighted to determine the gravity of the Ntaganda’s conduct. The Court also reminded the legacy of the ad hoc tribunals by noting that their jurisprudence had already acknowledged the “inherent gravity” of sexual violence crimes, whose victims “contracted sexually transmitted diseases” and suffered “ostracisation, stigmatisation and social rejection” in the DRC case.
2. Ntaganda’s degree of participation andintent, noting that he conceived a plan for civilians to be killed and made essential contribution towards this planfrom his position as Deputy Chief of Staff in charge of Operations and Organisation. Moreover, being one of the highest ranking military officials of the FPLC, he personally committed murders “in the presence of his subordinates”, thus sending a clear message that violence and the commission of crimes against Lendu civilians “were tolerated and even encouraged”. According to the ICC, the intensity of his involvement and his proximity to the murders committed “are factors which the Chamber considers to increase Mr Ntaganda’s culpability”.
In relation to aggravating circumstances, the Court took into account factors such as the particular cruelty of the crimes committed, the repeated victimization of some of the victims, or the situation of defenselessness of many of them —including babies and pregnant women—. However, the ICC decided not to weight in the discriminatory intent behind the crimes committed, as it was already considered by the Chamber “as part of the common plan and thus the mode of liability”.
After completing the analysis of Ntaganda’s conduct in relation to each crime, the ICC studied his individual circumstances, including, among others, allegations of witness interference —which were not demonstrated beyond a reasonable doubt—, his position and military training and experience —which the Court rejected as a separate aggravating factor as it was considered in its previous analysis on each crime—, or the perpetrator’s personal experience during the Rwandan genocide. With regards to the latter, the Court concluded that “the alleged protection of one group through acts aimed at the destruction and disintegration of another could not, under any circumstance, constitute a matter of mitigation”. Moreover, the ICC Chamber did not find other mitigating circumstances that could be established to impact on the individual and overall sentences. In this regard, the ICC failed to identify a “genuine and concrete contribution to peace and reconciliation” on the part of Ntaganda. His statements of compassion to the victims were “very general”, and his behavior during trial, as well as in detention, could not be considered “exceptional”.
30 years’ imprisonment.
Following this analysis on the gravity of the conduct and Ntaganda’s specific circumstances, the ICC established a joint sentence for the total period of imprisonment of 30 years. This was decided in accordance with Article 78.3 of the Rome Statute, which indicates that when a person is convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment that “shall be no less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in conformity with article 77, paragraph 1 (b)”. The Court had imposed a sentence of 30 years of imprisonment for murder and attempted murder “as a crime against humanity and as a war crime (Counts 1 and 2)”, therefore the Court had no further discretion to impose a different sentence. Although life imprisonment is permissible as a penalty under the Rome Statute—and it was requested by the Legal Representative of Victims of the Attacks—, neither the crimes, nor the individual circumstances of the convicted person, were of such an “extreme gravity” to justify such lengthy sentence:
“Having regard to its conclusions per crime, noting the overlap in conduct between part of these crimes, and on the basis of all further considerations relevant to this case, notwithstanding the fact that there are no mitigating circumstances to be afforded any weight, the Chamber finds that the crimes for which Mr Ntaganda has been convicted, despite their gravity and his degree of culpability, nevertheless do not warrant a sentence of life imprisonment”.
The Defence and the Prosecution may appeal this sentencing judgment within 30 days on the grounds of disproportion between the crime and the sentence. If the sentence becomes final, the ICC Presidency, after considering Ntaganda’s views, shall designate a State of enforcement from those which have expressed willingness to accept him. It must be noted that 2,129 victims—whose reparations the ICC announced that “will be addressed in due course”— have been authorized to participate in the trial proceedings, represented by their legal counsel.
The Sentencing Judgment is available at:
https://www.icc-cpi.int/CourtRecords/CR2019_06674.PDF, and a detailed legal summary of the decision has also been published online: https://www.icc-cpi.int/itemsDocuments/191107-ntaganda-sentencing-judgment-summary-eng.pdf.