Bosco Ntaganda at the start of his trial (Flickr/ ICC-CPI)

Ntaganda trial is a test of OTP’s sexual violence strategy

02 September 2015 by Stephanie van den Berg, The Hague (The Netherlands)

The trial of Congolese warlord Bosco Ntaganda which opened before the International Criminal Court Wednesday is a test of the prosecutor’s new strategy to look at sexual and gender-based violence in all of the cases [IJT-179].

In this case,  for the first time, the ICC has agreed that sexual violence against child soldiers by their own commanders could constitute a war crime. 

In her opening statement prosecutor Fatou Bensouda said rape and sexual enslavement of Ntaganda’s own soldiers was so prevalent in the armed wing of the Union of Congolese Patriots (UPC) that the girls were known as “guduria”, a Swahili word for a communal cooking pot. These girls were “reduced to objects which soldiers and commanders could pass around and use for sex whenever they pleased,” she told the judges. The OTP lawyer trying the case, Nicole Samson, later said that rape occurred on such a large scale that the UPC started handing out antibiotics to combat venereal diseases.

“It is certainly not the first case where sexual violence is charged... but there has been no conviction so far,” Mariana Pena of the Open Society Justice Initiative told IJT. “This case is it a test for Bensouda’s new strategy on sexual violence,” she added.

Human Rights Watch (HRW) also highlighted the importance of the sexual violence charges in the Ntaganda case. “Given the widespread practice of sexual violence in eastern Congo where rape and sexual slavery are used as weapons of war it is important that this fourth case at the ICC includes charges of sexual violence and rape,” Geraldine Mattioli of HRW’s international justice programme said.

“This trial should be a signal that other leaders who let their troops rape women could face justice,” she told IJT.

The OTP was heavily criticized in the case against Thomas Lubanga – the Congolese warlord and head of the UPC sentenced to 14 years for enlisting child soldiers [IJT-171] – for not including sexual violence in the charges. In the Ntaganda trial, Bensouda has tried to undercut such criticism by focusing on the sexual violence component already in the confirmation of charges hearing. In addition, it has also charged Ntaganda on various modes of liability. So far trial chambers have gone for just one mode of liability, but Ntaganda has been charged on five alternative modes of liability: direct perpetration; indirect co-perpetration; ordering inducing; contribution to the commission of crimes and command responsibility where a military commander is held responsible for the crimes of his subordinates. These alternate modes of liability are also a remnant of the case against Germain Katanga, where the prosecution tried to change the mode of liability halfway which was rejected by the judges [IJT-163]. By casting their net wide the prosecution hopes to avoid a repeat.

For the defence, the wide scope of the charges presents other challenges said Ntaganda’s lawyer, Stephane Bourgon, who characterized the case as “the largest and most complex before the ICC to this day”.

The opening statements continue Wednesday to Friday, and the first witness will take the stand on 15 September.  

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