doctype: arrest-warrant

identifier: ICC-01/04-02/06 (Order Setting the Agenda for the 11 September 2014 Status Conference)

decisionType: arrest-warrant

text: the Statute, article 54

text: Rome Statute, article 64

text: the Statute, article 67

text: Cour

text: Pénale

text: Internationale

text: International

text: - 5 ^ ^ C r i m i n a l

text: Court

text: Original: English No.: ICC-0iy04-02/06 Date: 10 September 2014

text: TRIAL CHAMBER VI

text: Before: Judge Robert Fremr, Presiding Judge Judge Kuniko Ozaki Judge Geoffrey Henderson

text: SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO IN THE CASE OF THE PROSECUTOR v. BOSCO NTAGANDA

text: Public

text: No. ICC-01/04/02/06 1/5 10 September 2014

text: Order to be notified, in accordance with Regulation 31 of the Regulations of the Court, to: The Office of the Prosecutor Counsel for Bosco Ntaganda Ms Fatou Bensouda Mr Stéphane Bourgon Mr James Stewart Ms Nicole Samson

text: Legal Representatives of Victims Legal Representatives of Applicants Ms Sarah Pellet Mr Dmytro Suprun

text: Unrepresented Victims Unrepresented Applicants for Participation/Reparation

text: The Office of Public Counsel for The Office of Public Counsel for the Victims Defence Ms Paolina Massidda

text: States' Representatives Amicus Curiae

text: REGISTRY

text: Registrar Counsel Support Section Mr Herman von Hebel Mr Esteban Peralta-Losilla

text: Victims and Witnesses Unit Detention Section Mr Nigel Verrill

text: Victims Participation and Reparations Others Section Ms Fiona McKay

text: No. ICC-01/04/02/06 2/5 10 September 2014

text: Trial Chamber VI ('Chamber') of the International Criminal Court ('Court'), in the case of The Prosecutor v. Bosco Ntaganda, having regard to

text: Article 64

text: (3) of the

text: Rome Statute

text: ('Statute'), Rule 132(1) of the Rules of Procedure and Evidence ('Rules') and Regulations 34 and 54 of the Regulations of the Court, issues the following 'Order Setting the Agenda for the 11 September 2014 Status Conference'.

text: On 21 July 2014, the Chamber issued its order scheduling a status conference and providing a provisional agenda for said status conference.^ Since then the parties and participants made observations on the topics listed on the provisional agenda,^ and the date for the status conference was rescheduled for 11 September 2014.^

text: Taking into account the observations made by the parties and participants, the Chamber hereby issues the following agenda for the status conference:

text: a) Languages to be used in the proceedings, in particular, the need for and extent of translation of documents provided to the defence team for Mr Ntaganda ('Defence'), the languages spoken by the witnesses the parties intend to call and victims for whom the legal representatives may seek authorisation to call; b) Timing, volume and modalities of disclosure of evidence pursuant to Rule 76 of the Rules;

text: * Order Scheduling a Status Conference and Setting a Provisional Agenda, ICC-01/04-02/06-339. ^ Registry submission pursuant to "Order Scheduling a Status Conference and Setting a provisional Agenda", 14 August 2014, ICC-01/04-02/06-350; Joint submissions in accordance with the "Order Scheduling a Status Conference and Setting a Provisional Agenda" issued on 21 July 2014, 14 August 2014, ICC-01/04-02/06-351; Prosecution's Submissions on the Provisional Agenda for the 20 August 2014 Status Conference, 14 August 2014, ICC-01/04-02/06-352 with Conf-AnxA, Conf-AnxB; Observations de la Défense concernant l'ordre du jour provisoire pour la Conférence de mise en état du 11 septembre 2014, 8 September 2014, ICC-01/04-02/06- 364 ('Defence Observations'); Prosecution's Additional Observations in Preparation for the Status Conference, 8 September 2014, ICC-01/04-02/06-365-Conf-Exp. A public redacted version was filed on the same day (ICC- 01/04-02/06-365-Red).. ^ Order postponing and setting a new date for the status conference, 15 August 2014, ICC-01/04-02/06-3 54; Order revising dates for the status conference and for receipt of observations, 26 August 2014, ICC-01/04-02/06- 358; E-mail from Legal Officer of the Chamber to the parties and participants, 22 August 2014, at 20:34.

text: No. ICC-01/04/02/06 3/5 10 September 2014 c) Whether the Prosecution anticipates issues concerning the protection of witnesses and other persons (including the need for redactions), the disclosure of identities of witnesses, as well as referrals to the Court's witness protection program; d) Material already disclosed and intended to be disclosed by the Prosecution pursuant to

text: Article 67

text: (2) of

text: the Statute

text: and Rule 11 of the Rules; e) Whether there are any outstanding issues relating to documents or information which the Prosecution obtained on the condition of confidentiality pursuant to

text: Article 54

text: (3)(e) of

text: the Statute

text: ; f) Views on the need for an updated Document Containing the Charges; g) Whether the parties intend to call expert witnesses pursuant to Regulation 44 and, if so, whether they intend to give joint or separate instructions to them; h) Evidence to be introduced under Rule 69 as regards agreed facts; i) Update on victims' applications and the procedure for allowing victims to participate in the trial proceedings; and j) Commencement date of the trial. 3. In its observations, the Defence requests that an ex parte status conference. Defence and Registry orüy, be scheduled immediately before or after the inter partes status conference.^ On the basis of the limited information provided, the Chamber is unable to assess the need, or basis,^ for an ex parte status conference, at this stage. The Chamber therefore directs the Defence to file written submissions on the issue of resources available to the Defence to

text: ^ Defence Observations, ICC-01/04-02/06-364, paras 4, 13-18. ^ The Chamber notes that no reference to Regulation 83(4) of the Regulations is made, nor whether such situation a situation has arisen at this stage.

text: No. ICC-01/04/02/06 4/5 10 September 2014 prepare for trial and logistics of family visits, should such matter require the attention of the Chamber at this time. These submissions are to be filed by 15 September 2014. The Registry shall respond by 19 September 2014. After receipt of these filings, the Chamber will decide whether it is opportune to schedule an ex parte status conference.

text: FOR THE FOREGOING REASONS, THE CHAMBER HEREBY SETS the agenda for the status conference of 11 September 2014, as provided in paragraph 2; ORDERS the Defence to file written submissions, if any, as described in paragraph 3, by 15 September 2014; and ORDERS the Registry to respond to the submissions, as described in paragraph 3, by 19 September 2014. Done in both English and French, the English version being authoritative.

text: Judge Robert Fremr, Presiding Judge

text: <^/A>^f oo.

text: ^ • ^ Judge Kuniko Ozaki Judge Geoffrey Henderson Dated 10 September 2014 At The Hague, The Netherlands

text: No. ICC-01/04/02/06 5/5 10 September 2014

title: The Prosecutor v. Bosco Ntaganda

type: avgorande


court: icc

doctype: admissibility

identifier: ICC-01/04-02/06 (Decision on the Defence's challenge to the jurisdiction of the Court in respect of Counts 6 and 9)

caseName: The Prosecutor v. Bosco Ntaganda

chamber: Trial Chamber VI

decisionType: admissibility

publisher: International Criminal Court

text: Geneva Conventions

text: Geneva Conventions, article 3

text: Geneva Conventions

text: Geneva Conventions, article 3

text: Geneva Conventions

text: Geneva Conventions, article 3

text: Geneva Conventions

text: Geneva Conventions, article 3

text: Second Additional Protocol

text: the Statute

text: Rome Statute, article 19

text: the Statute, article 22

text: Rome Statute, article 61

text: the Statute, article 78

text: Rome Statute, article 8

text: Cour pénale é /nT\X1i Internationale ^ wjO y

type: stycke

text: International Criminal Court

text: Original: English No.: ICC-01/04-02/06 Date: 9 October 2015

text: TRIAL CHAMBER VI

type: rubrik

text: Before: Judge Robert Fremr, Presiding Judge Judge Kuniko Ozaki Judge Chang-ho Chung

text: SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO IN THE CASE OF THE PROSECUTOR v. BOSCO NTAGANDA

text: Public

text: No. ICC-01/04-02/06 1/12 9 October 2015

text: Decision to be notified, in accordance with Regulation 31 of the Regulations of the Court, to: The Office of the Prosecutor Counsel for Bosco Ntaganda Ms Fatou Bensouda Mr Stéphane Bourgon Mr James Stewart Mr Luc Boutin Ms Nicole Samson

text: Legal Representatives of Victims Legal Representatives of Applicants Ms Sarah Pellet Mr Dmytro Suprun

text: Unrepresented Victims Unrepresented Applicants for Participation/Reparation

text: The Office of Public Counsel for The Office of Public Counsel for the Victims Defence

text: States' Representatives Amicus Curiae

text: REGISTRY

text: Registrar Counsel Support Section Mr Herman von Hebel

text: Victims and Witnesses Unit Detention Section

text: Victims Participation and Reparations Others Section

text: No. ICC-01/04-02/06 2/12 9 October 2015

text: Trial Chamber VI ('Chamber') of the International Criminal Court ('Court'), in the

text: case of The Prosecutor v. Bosco NtUganda, having regard to Articles 8 and 19 of the

text: Rome Statute

text: ('Statute') and Rule 58 of the Rules of Procedure and Evidence

text: ('Rules'), issues the following 'Decision on the Defence's challenge to the jurisdiction

text: of the Court in respect of Counts 6 and 9'.

text: I. PROCEDURAL HISTORY

text: On 10 January 2014, the Office of the Prosecutor ('Prosecution') filed the Document Containing the Charges ('DCC'),1 in which the Prosecution charged Mr Ntaganda with, inter alia, '[r]ape of UPC/FPLC child soldiers, a war crime, punishable pursuant to article 8(2)(e)(vi)' (Count 6) and '[sjexual slavery of UPC/FPLC child soldiers, a war crime, punishable pursuant to article 8(2)(e)(vi)' (Count 9).2

text: From 10 to 14 February 2014, the confirmation hearing took place, during which the defence team for Mr Ntaganda ('Defence') argued that the charges contained in Counts 6 and 9 cannot be confirmed.3 In its written submissions, the Defence made further submissions on this issue.4 3. On 9 June 2014, Pre-Trial Chamber II confirmed charges against Mr Ntaganda ('Confirmation Decision'), including Counts 6 and 9.5

text: On 2 June 2015, the Chamber instructed the parties and participants to file by 15

text: June 2015 'any motion or request on matters that [they] [...] wish to bring to the

text: 1 ICC-01/04-02/06-203-AnxA. An Updated Document Containing the Charges ('Updated DCC) was filed on 16 February 2015 (ICC-01/04-02/06-458-AnxA).

text: 2 DCC, ICC-01/04-02/06-203-AnxA, pp 57-58.

text: 3 Transcript of Hearing of 13 February 2014, ICC-01/04-02/06-T-10-RED-ENG, page 27, lines 5-25.

text: 4 Conclusions écrites de la Défense de Bosco Ntaganda suite à l'Audience de confirmation des charges, 14 April 2014, ICC-0 l/04-02/06-292-Red2, paras 250-263.

text: 5 Decision Pursuant to

text: Article 61

text: (7)(a) and (b) of the

text: Rome Statute

text: on the Charges of the Prosecutor Against Bosco Ntaganda,

text: No. ICC-01/04-02/06 3/12 9 October 2015

text: Chamber's attention or wish to be decided prior to the start of trial', then set for 2 July 2015.6 After the start of trial was postponed until 2 September 2015, the Chamber reset the aforementioned deadline to 12 August 2015.7

text: On 1 September 2015, the Defence filed an application challenging the jurisdiction of the Court in respect of Counts 6 and 9 of the Updated DCC ('Request').8 6. On 9 September 2015, the Legal Representative of former child soldiers ("Legal Representative') filed a response, requesting the Chamber to dismiss the Request ('LRV Response').9 7. On 11 September 2015, the Prosecution responded to the Request ('Prosecution Response'),10 requesting the Chamber to dismiss it in limine.11 8. On 17 September 2015, following a request for clarification, the Chamber provided guidance that 'pending the decision it will allow the Prosecution to ask question[s], if any, and thus to elicit evidence on Counts 6 and 9'.12

text: Also on 17 September 2015, the Defence requested leave to reply to the

text: Prosecution Response on three issues.13 On 18 September 2015, the Chamber

text: granted the request in part, by permitting the Defence to reply to the first issue

text: as phrased by the Defence (namely, 'whether the Defence Application is a

text: proper jurisdiction challenge within the meaning of Article 19'), by 24

text: 6 Decision on the conduct of proceedings, ICC-01/04-02/06-619, para. 8.

text: 7 Order resetting certain pre-trial deadlines and other related matters, ICC-01/04-02/06-745, para. 3.

text: 8 Application on behalf of Mr Ntaganda challenging the jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/06-804, page 12.

text: 9 Former child soldiers' response to the "Application on behalf of Mr Ntaganda challenging the jurisdiction of the Court in respect of Counts 6 and 9 of the Document containing the charges", ICC-01/04-02/06-814.

text: 10 Prosecution Response to the "Application on behalf of Mr Ntaganda challenging the jurisdiction of the Court in respect of Counts 6 and 9", ICC-01/04-02/06-804, ICC-01/04-02/06-818.

text: 11 Prosecution Response, ICC-01/04-02/06-818, paras 42-43.

text: 12 Transcript of Hearing of 17 September 2015, ICC-0l/04-02/06-T-27-Red-ENG, page 27, lines 11-13.

text: 13 Request on behalf of Mr Ntaganda seeking leave to reply to "Prosecution Response to the 'Application on behalf of Mr Ntaganda challenging the jurisdiction of the Court in respect of Counts 6 and 9 of the Documents containing the Charges', ICC-01/04-02/06-804", ICC-01/04-02/06-835.

text: No. ICC-01/04-02/06 4/12 9 October 2015

text: September 2015.14 The Chamber considered that it would not be assisted by further submissions on the other two issues.15

text: On 24 September 2015, the Defence filed its reply.16

text: II. Submissions

text: Defence

text: The Defence requests the Chamber to find that the Court lacks material jurisdiction over rape and sexual slavery of child soldiers, as included in Counts 6 and 9, and to order that no evidence shall be presented in relation to the crimes charged in the aforementioned counts until a final decision on this request is rendered.17 12. The Defence submits that it has not yet formally challenged the jurisdiction of the Court in relation to Counts 6 and 9.18 The Defence further submits that pursuant to

text: Article 22

text: of

text: the Statute

text: , the Court's subject matter jurisdiction is exhaustive and that

text: Article 8

text: (2)(e)(vi) of

text: the Statute

text: , which mentions Common Article 3 of the 1949 Geneva Conventions ('Common Article 3'), does not include the crimes of rape and sexual slavery of child soldiers.19 It contends that Common Article 3 applies to persons taking no active part in the hostilities, adversaries who surrendered, and adversaries who were hors de combat.20 According to the Defence, these three categories all exclude child soldiers that

text: 14 E-mail from Legal Officer of the Chamber to the Defence on 18 September 2015, at 12:45. 15 E-mail from Legal Officer of the Chamber to the Defence on 18 September 2015, at 12:45. 16 Reply on behalf of Mr Ntaganda to "Prosecution Response to the 'Application on behalf of Mr Ntaganda challenging the jurisdiction of the Court in respect of Counts 6 and 9 of the Documents containing the charges', ICC-01/04-02/06-804", ICC-01/04-02/06-863. 17 Request, ICC-01/04-02/06-804, p. 12. 18 Request, ICC-01/04-02/06-804, para.2. 19 Request, ICC-01/04-02/06-804, paras 8-9 and 21-27. 20 Request, ICC-01/04-02/06-804, paras 23-25.

text: No. ICC-01/04-02/06 5/12 9 October 2015 have been incorporated in an armed group involved in a non-international armed conflict.21 13. The Defence further argues that the laws of armed conflict do not protect members of armed groups from acts of violence directed against them by their own forces, and that the crime of using child soldiers to participate actively in hostilities is to be seen as an express exception to this principle.22 It submits that therefore, other than for the crimes of enlistment, conscription and use to participate actively in hostilities, child soldiers cannot be victims of war crimes.23 The Defence also argues that rape and sexual slavery of child soldiers are not recognised as war crimes under customary international law.24

text: Moreover, the Defence argues that the

text: Second Additional Protocol

text: to the Geneva Conventions of 12 August 1949 ('Additional Protocol IT), which was referred to with respect to Counts 6 and 9 by Pre-Trial Chamber II in the Confirmation Decision, is not applicable to the situation in the present case;25 and even if it were to be applicable, it avers that the relevant provision does not, in fact, prohibit rape and sexual violence against child soldiers belonging to the same armed group as the perpetrator.26

text: In its reply, the Defence submits that the Prosecution's reliance on ICTY case law

text: is misplaced. It further takes issue with the Prosecution's argument that the

text: challenge is not a jurisdictional one. In this regard, it points at two occasions

text: where the Prosecution, in the Defence's view, referred to Count 6 and 9 as a

text: jurisdictional matter, namely in its letter of instructions for one of the proposed

text: 21 Request, ICC-01/04-02/06-804, paras 21-27.

text: 22 Request, ICC-01/04-02/06-804, paras 28 and 30.

text: 23 Request, ICC-01/04-02/06-804, paras 28-32.

text: 24 Request, ICC-01/04-02/06-804, paras 12,42-43.

text: 25 Request, ICC-01/04-02/06-804, paras 10 and 33-35.

text: 26 Request, ICC-01/04-02/06-804, paras 36-41.

text: No. ICC-01/04-02/06 6/12 9 October 2015 expert witnesses27 and during the press conference held at the Court's premises on the day prior to the commencement of the trial.28

text: Prosecution

text: The Prosecution submits that the Request raises issues of statutory interpretation which can only be disposed of in the final judgment on the merits, and does not constitute a proper jurisdictional challenge.29 The Prosecution further submits that whether child soldiers can qualify as victims of

text: Article 8

text: (2)(e)(vi) of

text: the Statute

text: is a question of the scope of application of said article and as such is a question of substantive law.30 17. Furthermore, the Prosecution points to

text: Article 19

text: of

text: the Statute

text: , which provides that a jurisdictional challenge can be made 'only once', unless exceptional circumstances exist. According to the Prosecution, the Defence's arguments were already duly considered, and rejected, at the confirmation stage, after which the Defence did not seek leave to appeal this issue.31 18. As to the timing of the request, the Prosecution further argues that the challenge comes too late and would unduly delay trial proceedings. It stresses that the Defence has been on notice of the charges contained in Counts 6 and 9 since the DCC was filed.32

text: 27 Reply, ICC-01/04-02/06-863, para. 9.

text: 28 Reply, ICC-01/04-02/06-863, para. 11.

text: 29 Prosecution Response, ICC-01/04-02/06-818, paras 2 and 20-24.

text: 30 Prosecution Response, ICC-01/04-02/06-818, paras 20-21.

text: 31 Prosecution Response, ICC-01/04-02/06-818, paras 25-31

text: 32 Prosecution Response, ICC-01/04-02/06-818, paras 4 and 37.

text: No. ICC-01/04-02/06 7/12 9 October 2015

text: Legal Representative

text: The Legal Representative submits that the Request should be dismissed in limine, referring to the 12 August 2015 deadline the Chamber had set for any motion or request that needed to be decided before the start of trial.33 20. The Legal Representative further submits that even if the Request would be considered, it is inadmissible because it does not relate to a jurisdictional matter, but rather to the interpretation of various provisions of international humanitarian law (THL'), and to the scope of the war crime as included in

text: Article 8

text: (2)(e)(vi) of

text: the Statute

text: . These, she argues, are questions of a factual, legal and evidentiary nature.34 21. The Legal Representative also avers that the Request improperly seeks to relitigate matters that already have been addressed at the pre-trial stage,35 and that it attempts to have the charges amended and/or the underlying facts and circumstances changed.36

text: III. Analysis

text: At the outset, the Chamber notes that pursuant to

text: Article 19

text: (4) of

text: the Statute

text: a

text: challenge to jurisdiction may take place 'prior to or at the commencement of

text: trial'. Nonetheless, the Chamber considers that this should be read in light of

text: the deadlines set by the Chamber for 15 June and 12 August 2015, respectively,

text: to which the Defence appears not to have given due regard. While noting its

text: concern at the filing of the Request only one day before the commencement of

text: the trial, given the seriousness of a challenge to the Court's jurisdiction and the

text: 33 LRV Response, ICC-01/04-02/06-814, para. 2.

text: 34 LRV Response, ICC-01/04-02/06-814, paras 5-11.

text: 35 LRV Response, ICC-01/04-02/06-814, paras 12-14.

text: 36 LRV Response, ICC-01/04-02/06-814, paras 15-19.

text: No. ICC-01/04-02/06 8/12 9 October 2015 potential impact that such a challenge, if it were to succeed, would have on the

text: proceedings and the presentation of evidence, the Chamber will nevertheless

text: entertain the Request. However, the Chamber emphasises the importance of

text: adhering to deadlines set by the Chamber.

text: As to the Request itself, the Chamber observes that the Defence filed its motion

text: as a challenge to the Court's jurisdiction, but both the Prosecution and the Legal

text: Representative aver that the Request does not qualify as such. In this regard,

text: the Chamber notes the Defence's reference to the Prosecution's questions to one

text: of the proposed expert witnesses, which appears to indicate that the

text: Prosecution does view, or at least in the past viewed, the present matter to be

text: related to Court's material jurisdiction. However, the determination of whether

text: a challenge falls within the scope of a jurisdictional challenge is to be made by

text: the Chamber.

text: The scope of challenges to jurisdiction has been defined narrowly by the Appeals Chamber, which referred to jurisprudence of the ad hoc tribunals, especially the International Criminal Tribunal for the former Yugoslavia (TCTY') when it noted that the question 'whether a crime or mode of liability existed under customary international law [...] falls within the scope of a jurisdictional challenge', whilst 'challenges relating to the contours or elements of crimes' do not and are instead to be addressed at trial.37

text: 37 The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Decision on the appeals of Mr William Samoei Ruto and Mr Joshua Arap Sang against the decision of Pre-Trial Chamber II of 23 January 2012 entitled "Decision on the Confirmation of Charges Pursuant to

text: Article 61

text: (7)(a) and (b) of the

text: Rome Statute

text: ('Ruto, Kosgey and Sang Decision'), para. 31; and The Prosecutor v. Francis Kirimi Muthaura. Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Decision on the appeal of Mr Francis Kirimi Muthaura and Mr Uhuru Muigai Kenyatta against the decision of Pre-Trial Chamber II of 23 January 2012 entitled "Decision on the Confirmation of Charges Pursuant to

text: Article 61

text: (7)(a) and (b) of the

text: Rome Statute

text: ('Muthaura, Kenyatta and Ali Decision'), para. 37; both referring to ICTY, Prosecutor v. Milan Milutinovic and others. Decision on Ojdanic's Motion Challenging Jurisdiction: Indirect Co-Perpetration, 22 March 2006, IT-05-87-PT, para 23, in which the ICTY Appeals Chamber set out that the existence of a crime falls within the scope of a challenge to subject-matter jurisdiction, because such jurisdiction is 'to be determined both by

text: the Statute

text: , insofar as it sets out the jurisdictional framework of the International Tribunal, and by customary international law, insofar as the Tribunal's power to convict an accused of any crime listed in

text: the Statute

text: depends on its existence qua custom at the time this crime was allegedly committed'.

text: No. ICC-01/04-02/06 9/12 9 October 2015

text: In the present case, it need not be assessed whether a crime exists under customary international law, because the war crimes within the Court's jurisdiction are set out in

text: Article 8

text: of

text: the Statute

text: in an exhaustive list.38 The Court has jurisdiction over the war crimes of rape and sexual slavery, as such, and the Defence does not challenge that this is the case. As to these crimes, which are included in

text: Article 8

text: (2)(e)(vi) of

text: the Statute

text: , the Chamber observes that the aforementioned provision does not specify who can be victims of the war crimes listed therein, and that the corresponding Elements of Crimes refer only to 'person' and 'persons'. Whereas for certain crimes, the relevant provisions or their respective elements of crime explicitly limit the scope of the criminal conduct to certain types of victims, no such statutory limitation is provided for with respect to rape and sexual slavery. 26. Moreover, the Chamber observes that the term 'child soldier' is not a legal one, and that it cannot be found in the Court's statutory framework, or any of the relevant international legal instruments applicable to the involvement of children in armed conflict. Instead, the phrase 'UPC/FPLC child soldiers' is a descriptive one that refers to the alleged victims of the alleged rape and sexual slavery listed under Counts 6 and 9. The question as to which persons can be included in this phrase is to be addressed at trial.

text: Furthermore, the Defence posits that the Prosecution charged Counts 6 and 9 as 'autonomous crimes',39 and that trying Mr Ntaganda for these crimes would violate the principle of nullum crimen sine lege.40 However, the Chamber considers that these counts describe a particular set of alleged acts that are charged pursuant to

text: Article 8

text: (2)(e)(vi) of

text: the Statute

text: . The use of separate counts serves to denote between the different groups of victims that allegedly resulted

text: 38 See, e.g., William Schabas, The International Criminal Court: A Commentary on the

text: Rome Statute

text: (Oxford University Press 2010), p. 213. 39 Reply, ICC-01/04-02/06-863, para. 11. 40 Request, ICC-01/04-02/06-804, para. 45.

text: 10/12 PURL: http://www.legal-tools.org/doc/9eb4ec/9 October 2015 No. ICC-01/04-02/06 from these acts, as opposed to the alleged victims of the acts charged under Counts 5 and 8.41 The Chamber further recalls that, at the Court, regardless of how the alleged behaviour may be charged by way of counts, any sentences pronounced are divided by 'crime' and not by 'count'.42 28. The Chamber need not address at this stage whether such children, or persons generally, can under the applicable law be victims of rape and sexual slavery pursuant to Article 8(2)(e)(vi) when committed by members of the same group. Such questions of substantive law are to be addressed when the Chamber makes its assessment of whether the Prosecution has proven the crimes charged.

text: On the basis of the foregoing, the Chamber considers that there is no reason to limit the presentation of evidence with respect to the crimes of rape and sexual slavery to only specific types of victims, noting additionally the interrelatedness of any evidence regarding the alleged involvement of children, and that such evidence could also have relevance to other crimes, or modes of liability, charged.

text: 41 Counts 5 and 8, in relevant parts, refer to 'Rape of civilians, a war crime, punishable pursuant to article 8(2)(e)(vi)' and 'Sexual slavery of civilians, a war crime, punishable pursuant to article 8(2)(e)(vi)', respectively. See Updated DCC, ICC-01/04-02/06-458-AnxA, pp. 61-62. 42

text: Article 78

text: (3) of

text: the Statute

text: No. ICC-01/04-02/06 11/12 9 October 2015

text: Judge Kuniko Ozaki Judge Chang-ho Chung Dated 9 October 2015 At The Hague, The Netherlands

text: No. ICC-01/04-02/06 12/12 9 October 2015

title: The Prosecutor v. Bosco Ntaganda