The Prosecutor v. Bosco Ntaganda

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Original: English No.: ICC-01/04-02/06 Date: 9 June 2014

PRE-TRIAL CHAMBER II

Before: Judge Ekaterina Trendafilova, Presiding Judge Judge Hans-Peter Kaul Judge Cuno Tarfusser

SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO

IN THE CASE OF THE PROSECUTOR V. BOSCO NTAGANDA

Public With Public Annex

Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda

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Decision to be notified, in accordance with regulation 31 of the Regulations of the Court, to:

The Office of the Prosecutor Counsel for the Defence

Fatou Bensouda, Prosecutor Marc Desalliers James Stewart, Deputy Prosecutor Caroline Buteau Andrea Valdivia

Legal Representatives of the Victims Legal Representatives of the Applicants

Sarah Pellet Dmytro Suprun

Unrepresented Victims Unrepresented Applicants for Participation/Reparation

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

States Representatives Other

REGISTRY Registrar Defence Support Section

Herman von Hebel

Victims and Witnesses Unit Detention Section

Victims Participation and Reparations Other Section

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PRE-TRIAL CHAMBER II (the “Chamber”) of the International Criminal Court, (the “ICC” or the “Court”) hereby renders this decision pursuant to article 61(7)(a) and (b) of the Rome Statute (the “Statute”) on the charges of the Prosecutor against Bosco Ntaganda (“Mr. Ntaganda”).

I. PROCEDURAL HISTORY

1 2 1. On 22 August 2006 and on 13 July 2012, two warrants of arrest were issued against Mr. Ntaganda. 2. On 22 March 2013, Mr. Ntaganda voluntarily surrendered to the Court and on 26 March 2013, the suspect made his first appearance before the Chamber. 3. On 10 January 2014, the Prosecutor filed the Document Containing the Charges 5 6 7 (the “DCC”), together with the list of evidence, and, on 17 January 2014, the Prosecutor also filed the consolidated in-depth analysis chart. 4. On 24 January 2014, the Defence filed its list of evidence and in-depth analysis chart. An amended version of the in-depth analysis chart was filed on 7 February 2014. 5. The confirmation of charges hearing (the “Hearing”) was held from 10 to 14 February 2014. 13 14 6. On 7 March 2014, the Prosecutor and 1,120 participating victims lodged their final written submissions. On 8 April 2014, the Chamber received the final written Defence submissions.

II. JURISDICTION, ADMISSIBLITY AND OTHER PROCEDURAL ISSUES

7 The Chamber is satisfied that, pursuant to article 19(1) of the Statute, the present case continues to fall within the jurisdiction of the Court and is admissible.

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8 With a view to rendering its final determination pursuant to article 61(7) of the Statute, the Chamber bases its findings on a comprehensive analysis of the evidence contained in the lists of evidence, the DCC, the in-depth analysis charts, the submissions made during the Hearing, and the final written submissions of the parties and participants. 9. As article 61(7) of the Statute dictates, the Chamber “shall, on the basis of the hearing, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged”. Thus, to meet this intermediate evidentiary threshold, the Chamber must be “thoroughly satisfied that the [Prosecutor’s] allegations are sufficiently strong to commit [the person] for trial”. Pre-Trial Chambers have consistently held that to meet the evidentiary burden of “substantial grounds to believe”, the Prosecutor must “offer concrete and tangible proof demonstrating a clear line of reasoning underpinning [the] specific allegations”. All findings of the Chamber in the present decision are made on the basis of the statutory standard applicable at this stage of the proceedings. 10. In its assessment of the evidence, the Chamber has been guided by articles 21, 64, 67 and 69 of the Statute and rules 63, 64, 68, 70, 71, 76 to 78, 121 and 122 of the Rules of Procedure and Evidence, as well as the evidentiary principles as interpreted in previous decisions of the Court. 11. The present decision represents the result of the Chamber’s assessment of the Prosecutor’s allegations in light of the evidence presented by the parties, as referred to in the endnotes to the present decision. The Defence challenges to the Prosecutor’s evidence have been considered throughout this assessment. Where necessary, the Chamber provides a separate response to the challenges raised.

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III. FINDINGS ON THE CRIMES CHARGED

A. Findings on the Contextual Elements of the Crimes Against Humanity

12 On the basis of the evidence presented the Chamber concludes the following:

There are substantial grounds to believe that as early as the beginning of August 2002, the Union des Patriotes Congolais/Forces Patriotiques pour la Libération du Congo (the “UPC/FPLC”) adopted an

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organisational policy to attack part of the civilian population, belonging to ethnic groups other than the Hema (the “non-Hema”) and to expel them from Ituri Province, in the Democratic Republic of the Congo (the “DRC”). Pursuant to this policy, between on or about 6 August 2002 and on or about 27 May 2003, the UPC/FPLC perpetrated a widespread and systematic attack against the non-Hema civilian population, in the locations identified in section A of the decision. Lacking sufficient evidence, the Chamber does not find substantial grounds to believe that such attack continued after on or about 27 May 2003.

13 The Chamber clarifies that the findings in paragraph 12 above are more specifically supported by the facts presented in each subsection of Section A.

The UPC/FPLC as an Organisation

14 The evidence indicates that the UPC/FPLC was an organisation with an established hierarchy headquartered in Bunia. The UPC was formally established on 15 September 2000 when the “UPC Statuts” on its objectives and organisation were signed. The President of the UPC had the power to issue decrees appointing and dismissing members of the organisation, including its executive members. 15. The UPC’s military wing, i.e. the FPLC, was formally established on or about 30 31 1 September 2002 and was headed by its Commander in Chief, Floribert Kisembo as Chief of Staff and Mr. Ntaganda as Deputy Chief of Staff in charge of operations. Although the FPLC was not formally established before September 2002, the evidence demonstrates that the UPC, as a “mouvement politico-militaire” ,

No. ICC-01/04-02/06 6 9 June 2014 had a military wing before that date. UPC/FPLC troops were divided into sectors, brigades, battalions, companies, platoons and sections, headed by subordinate commanders. The UPC/FPLC had staff officers in charge of different matters, including administration, intelligence, operations, logistics and political affairs. Meetings were held in order to discuss and organise the operations. Discipline was maintained and soldiers who deserted, refused to execute an order from above or committed offences were punished accordingly. 16. The UPC/FPLC also had an effective system of communication. Orders were transmitted down the chain of command from the headquarters to the field and superior commanders and chiefs of staff received daily reports through satellite 43 44 phones and by way of “Radio-phonie” (“manpacks”). Messages transmitted by manpack were recorded in personal logbooks. These channels of communication made it possible to inform the various levels of the UPC/FPLC of the situation on the ground and to convey instructions from above. 17. The UPC/FPLC also had the means and the capability to carry out military operations over a prolonged period of time. The UPC/FPLC had several sources of 47 48 funding such as: (i) money from Gegere (north Hema) businessmen, (ii) money 49 50 from gold or oil extraction contracts; and (iii) taxation imposed on the population. UPC/FPLC troops were numerous and well-trained as they received military training in several camps such as Mandro, Mongbwalu, Bule and Rwampara. The soldiers were well-armed with sufficient ammunition and several types of heavy weapons, such as rocket launchers, mortars and grenade launchers, mostly originating from Rwanda. 18. Furthermore, on or about 20 November 2002 onwards, groups of Hema civilian supporters were integrated in the organisational structure of the UPC/FPLC which had established a “system of war”. Under that system, civilian supporters, mostly Gegere, accompanied UPC/FPLC troops “in most or even all the operations”,

No. ICC-01/04-02/06 7 9 June 2014 carrying supplies and “burning down the houses and taking away the roofing and all that”, upon instructions by superiors in the UPC/FPLC. Mr. Ntaganda armed some of these Hema civilians and instructed them “to go and kill […] Lendus”.

The UPC/FPLC Adopted a Policy

19 The evidence indicates that as early as the beginning of August 2002, the UPC/FPLC adopted an organisational policy to attack civilians perceived to be non- Hema. The Chamber notes that in the course of a meeting in Kampala in early June 2002, high-ranking members of the UPC discussed the need to evict from Ituri those perceived to be non-originaires and to raise awareness within and seek support from the population regarding a military operation to this effect. The non-Hema civilian population to be targeted was selected primarily on the basis of ethnic origin, such as the Lendu, Bira and Nande ethnic groups. The UPC/FPLC also intended to target anyone siding with those perceived to be non-Hema, regardless of whether the former belonged to the Hema ethnic group. 20. At the Hearing, the Defence asserted that the UPC/FPLC was a multi-ethnic organisation and, as such, it could not have developed a policy to attack the civilian population based on ethnic grounds. However, the Chamber considers that the alleged multi-ethnic composition of the UPC/FPLC, including the fact that some of its members belonged to ethnic groups that were the object of the attack, cannot in and of itself rule out the fact that the organisation conceived a policy to attack those perceived to belong to ethnic groups other than Hema. In addition, the evidence indicates that non-Hema members of the UPC/FPLC had “little or no influence in the organization” and were sometimes forced to join the organisation and pursue its goals. 21. The general message conveyed in the context of the attack by UPC/FPLC superiors to their troops and, as the case may be, to the civilian supporters, was to consider the non-Hema, in particular the Lendu, as the enemies and, thus, to kill

No. ICC-01/04-02/06 8 9 June 2014 them. For example, before attacking Lendu inhabited areas, UPC/FPLC soldiers “never warned them, we just […] attacked them […] because the war was between the Lendu and Hema”. Mr. Ntaganda, in his official capacity within the UPC/FPLC, regularly raised awareness among the troops and Hema civilians, in person or by radio, of the need to exterminate the Lendu and chase them away from the territory under the control of the UPC/FPLC, regardless of whether they were taking part in hostilities or not. The evidence further shows that when addressing UPC/FPLC troops at a military parade in Mabanga, in November 2002, Mr. Ntaganda used the expression "piga na kuchaji" or "kupiga na kuchaji", which meant that troops should 70 71 fight and pillage everything, including “women”. Another high-ranking official, Commander Salumu Mulenda (“Mr. Mulenda”), also employed this expression at a UPC/FPLC meeting in Lalo village, in preparation for the attack on Mongbwalu on or about 20 November 2002. The evidence further indicates that before attacking the town on or about 6 May 2003, the UPC/FPLC instructed the Hema civilian population to leave Bunia, as all remaining people would be considered to be the enemy.

The “Widespread” or “Systematic” Attack

22 From on or about 6 August 2002 to on or about 27 May 2003, an attack against the non-Hema civilian population pursuant to the organisational policy depicted above took place in several locations in Ituri. This attack is more specifically demonstrated by a series of assaults discussed in the paragraphs below. These assaults, viewed as a whole, form a course of conduct involving the multiple commissions of acts referred to in article 7(1) of the Statute and, consequently, constitute an attack within the meaning of that provision. 23. In this respect, the Defence argued at the Hearing that the Prosecutor cannot “limit [the] charges to two clearly defined events and then suggest […] that Mr. Ntaganda also was guilty of such crimes on many other occasions and ask

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[the Chamber] […] to consider these facts […]”. The Chamber recalls that according to article 7(2)(a) of the Statute, an “attack” denotes a course of conduct involving the multiple commission of acts referred to in paragraph (1) of the same provision. As the charged crimes must take place within an “attack”, the Prosecutor is free to present further additional acts to the ones charged, with a view to demonstrating that an “attack” within the meaning of articles 7(1) and 7(2)(a) of the Statute took place, as illustrated below in paragraphs 24 to 30. 24. The Chamber further finds that the attack against the civilian population was widespread, as it resulted in a large number of civilian victims, in a broad geographical area, over the period between on or about 6 August 2002 and on or about 27 May 2003. It also finds that the attack was systematic, following a regular pattern. Locations with a predominantly non-Hema population were targeted and this part of the civilian population, once identified, was made the object of an attack. Moreover, in its operations, the UPC/FPLC followed a recurrent modus operandi, including the erection of roadblocks, the laying of land mines, and coordinated the commission of the unlawful acts, as found above, in order to attack the non-Hema civilian population. These findings are more specifically demonstrated in the following paragraphs. 25. According to the evidence, UPC soldiers with the support of some elements of the Ugandan People’s Defence Force (the “UPDF”) attacked Bunia on or about 6 August 2002. The UPC/FPLC encountered armed resistance by the Armée du 78 79 Peuple Congolais (the “APC”). The UPC killed non-Hema civilians, including those attempting to flee at roadblocks. Some were targeted on the basis of a preestablished list of people to be killed. In the course of the assault on Bunia, UPC 82 83 forces: (i) carried out arbitrary arrests; (ii) raped non-Hema women; (iii) forcibly expelled non-Hema civilians from their homes; and (iv) destroyed their property.

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26 On 31 August 2002, the UPC/FPLC attacked the village of Songolo – one of the strongholds of the Force de Résistance Patriotique en Ituri (the “FRPI”), a Lendu force – with heavy weapons, including mortars and rockets, before making an incursion on foot and killing non-Hemas, without distinguishing between civilians and fighters. During the assault, UPC/FPLC soldiers: (i) raped and kept women as sex 90 91 92 slaves; (ii) pillaged the village; and (iii) destroyed civilian property. Some people were killed by land mines which were laid by UPC/FPLC troops. 27. On 15 and 16 October 2002, UPC/FPLC soldiers, with the support of elements of the UPDF, attacked the village of Zumbe, a FRPI stronghold, and stayed there for two days. UPC/FPLC soldiers: (i) killed a number of civilians in Zumbe and in the 95 96 surrounding villages; (ii) pillaged; (iii) destroyed more than 500 buildings, 97 98 including health centres and schools; and (iv) raped women. As in Songolo, some people were killed by land mines laid by the UPC/FPLC. 28. Between October and December 2002, UPC/FPLC soldiers, together with the Mouvement de Libération du Congo (the “MLC”) and the Rassemblement Congolais pour la Démocratie/National (the “RCD-N”) carried out joint attacks on Mambasa, 100 101 Komanda and Eringeti, often referred to as “Opération Effacer le Tableau”. The goal of the operation was to take over the whole area controlled by the Rassemblement Congolais pour la Démocratie-Kisangani/Mouvement de Libération (the “RCD-K/ML”). UPC/FPLC soldiers committed a series of criminal acts against the non-Hema civilian population in Komanda, including killings, cannibalism, rapes and pillaging. 29. Between on or about 20 November 2002 and on or about 6 December 2002, the UPC/FPLC attacked a number of villages in Banyali-Kilo collectivité as identified by the Chamber (the “First Attack”), during which the UPC/FPLC faced armed resistance from the Front des Nationalistes Intégrationnistes (the “FNI”)/FRPI and the APC. Between on or about 12 February and on or about 27 February 2003,

No. ICC-01/04-02/06 11 9 June 2014 the UPC/FPLC attacked a number of villages in Walendu-Djatsi collectivité as identified by the Chamber (the “Second Attack”), during which the UPC/FPLC faced armed resistance from the FNI/FRPI and the APC. Both attacks, as defined, resulted in a number of criminal acts against civilians as specified in Section C of this decision. 30. After the UPC/FPLC soldiers were overwhelmed at the beginning of March 2003 by the UPDF and the FNI/FRPI – a Lendu force – and were thus forced to withdraw 108 109 from Bunia, they attempted to retake control of the town on or about 6 May 2003. The UPC/FPLC instructed the Hema civilian population to leave Bunia, as all remaining people would be considered to be the enemy. The fighting continued until on or about 27 May 2003, “when the UPC drove the Lendu combatants out of 112 113 Bunia”. UPC/FPLC forces targeted non-Hema civilians, which resulted in 114 115 116 117 killings, disappearances and looting. Rapes continued after Bunia fell.

B. Findings on the Contextual Elements of the War Crimes

31 On the basis of the evidence presented the Chamber finds that:

There are substantial grounds to believe that the UPC/FPLC constituted an organised armed group within the meaning of article 8(2)(f) of the Statute and that between on or about 6 August 2002 and on or about 31 December 2003, it engaged in an armed conflict not of an international character in Ituri Province, in the DRC, against other organised armed groups (“Non-International Armed Conflict”).

32 The findings in paragraph 31 above are more specifically supported by the facts presented in paragraphs 14-18 and 22-30 as well as those in the following paragraphs of the present Section. 33. The evidence indicates, as also found by Trial Chamber II, that the Ugandan armed forces, the UPDF, occupied Ituri between August 2002 and May 2003, thereby rendering the law of international armed conflict applicable. Along with the occupation by Ugandan forces of this part of the territory of the DRC, the Chamber

No. ICC-01/04-02/06 12 9 June 2014 finds that an armed conflict not of an international character was ongoing in Ituri between on or about 6 August 2002 and on or about 31 December 2003. During that period, repeated acts of hostilities of a certain level of intensity took place in several locations across Ituri Province between the UPC/FPLC, sometimes supported by other entities, and various other organised armed groups, including the FNI/FRPI, the APC, the Parti pour l’unité et la sauvegarde de l’integrité du Congo (the “PUSIC”) and the Forces armées du peuple congolais (the “FAPC”). The hostilities, albeit to a lesser extent, continued after May 2003 and until 31 December 2003, as demonstrated by a number of clashes in Kasenyi on 11 June, 23 July and 31 October 2003; Tchomia on 15 July and at the end of October and the beginning of November 124 125 2003; Nizi on 20 July 2003 and 23 August 2003; Fataki on 19-20 July and on 31 126 127 128 July 2003; Kachele on 6 October 2003; and Lingabo on 26 November 2003. 34. The UPC/FPLC encountered armed resistance from the opposing armed groups, which formed ever changing alliances in the course of the Non-International Armed Conflict and were sufficiently organised to repulse the UPC/FPLC on more than one occasion and to retain control of certain areas in Ituri. The Chamber also considers that the steps taken by the United Nations Security Council with regard to the situation in the DRC as well as the repeated diplomatic efforts undertaken by the parties with a view to ending hostilities constitute further indicia of the existence of the Non-International Armed Conflict.

C. Findings on the Specific Crimes in Counts 1, 2, 3, 4, 5, 7, 8, 10, 11, 12, 13, 17, 18

35 The Chamber clarifies that Section C of this decision contains its findings on the crimes charged in the context of the First Attack and the Second Attack, whereas Section D contains the findings on the crimes committed against child soldiers under the age of fifteen years at various places in Ituri and throughout the period of the Non-International Armed Conflict.

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36 On the basis of the evidence, the Chamber finds that:

There are substantial grounds to believe that, as part of the widespread and systematic attack against the non-Hema civilian population, pursuant to or in furtherance of the organisational policy adopted by the UPC/FPLC, and in the context of the Non-International Armed Conflict, UPC/FPLC soldiers, including, as the case may be, supporting civilians, committed the following acts in the course of the First Attack: (i) murder and attempted murder (counts 1 and 2) in Mongbwalu, Pluto, Nzebi, Sayo and Kilo; (ii) attacking civilians (count 3) in Mongbwalu and Sayo; (iii) rape (counts 4 and 5) in Mongbwalu, Kilo and Sayo; (iv) persecution (count 10) in Mongbwalu, Pluto, Nzebi, Sayo, Kilo; (v) pillaging (count 11) in Mongbwalu and Sayo; (vi) forcible transfer of population and displacing civilians (counts 12 and 13) in Mongbwalu and Nzebi; (vii) attacking protected objects (count 17) in Mongbwalu and Sayo; (viii) destroying the enemy’s property (count 18) in Mongbwalu and Sayo.

There are substantial grounds to believe that Mr. Ntaganda himself committed the following acts in the course of the First Attack: (i) murder (counts 1 and 2) in Mongbwalu; (ii) attacking civilians (count 3) in Sayo; (iii) persecution (count 10) in Mongbwalu and Sayo (iv) pillaging (count 11) in Mongbwalu and Sayo; (v) attacking protected objects (count 17) in Mongbwalu and Sayo.

There are substantial grounds to believe, that as part of the widespread and systematic attack against the non-Hema civilian population, pursuant to or in furtherance of the organisational policy adopted by the UPC/FPLC, and in the context of the Non-International Armed Conflict, UPC/FPLC soldiers, including, as the case may be, supporting civilians, committed the following acts in the course of the Second Attack: (i) murder and attempted murder (counts 1 and 2) in Kobu, Sangi, Bambu, Lipri, Tsili, Ngongo and Jitchu; (ii) attacking civilians (counts 3) in Bambu, Kobu, Lipri, Jitchu, Camp P.M., Buli, Djuba, Sangi, Tsili, Katho, Gola, Mpetsi/Petsi, Avetso, Nyangaray, Pili, Mindjo, Langa, Dyalo, Wadda, Goy, Dhepka, Mbidjo, Thali and Ngabuli; (iii) rape (counts 4 and 5) in Lipri, Kobu, Bambu, Sangi and Buli;

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(iv) sexual slavery (counts 7 and 8) in Kobu, Sangi, Buli, Jitchu, and Ngabuli; (v) persecution (count 10) in Kobu, Sangi, Bambu, Lipri, Tsili, Ngongo, Jitchu, Buli, Nyangaray, Gutsi, Camp P.M., Djuba, Sangi, Katho, Gola, Mpetsi/Petsi, Avetso, Pili, Mindjo, Langa, Dyalo, Wadda, Goy, Dhepka, Mbidjo, Thali and Ngabuli; (vi) pillaging (count 11) in Bambu, Kobu, Lipri and Jitchu; (vii) forcible transfer of population and displacing civilians (counts 12 and 13) in Lipri, Kobu, Bambu, Nyangaray, Tsili, Buli, Jitchu and Gutsi; (viii) attacking protected objects (count 17) in Bambu; (ix) destroying the enemy’s property (counts 18) in Kobu, Lipri, Bambu, Camp P.M., Buli, Jitchu, Djuba, Sangi, Tsili, Katho, Gola, Mpetsi/Petsi, Avetso, Nyangaray, Pili, Mindjo, Langa, Dyalo, Wadda, Goy, Dhepka, Mbidjo, Thali and Ngabuli.

37 The Chamber clarifies that the findings in paragraph 36 above are more specifically supported by the facts presented in each of the following subsections.

Counts 1 and 2: Murder and Attempted Murder as a Crime Against Humanity

(Article 7(1)(a) of the Statute) and a War Crime (Article 8(2)(c)(i) of the Statute)

38 The evidence shows that in the course of the First Attack, at least 200 civilians 135 136 were killed in and around Mongbwalu by UPC/FPLC soldiers. More specifically, the evidence demonstrates that UPC/FPLC soldiers killed civilians at Mongbwalu 137 138 139 airfield, at the hospital as well as in the Gangala area of Mongbwalu. Further, during the First Attack a number of civilians, who were held prisoners in Mr. Ntaganda’s apartment/camp (“Mr. Ntaganda’s camp”) in Mongbwalu, were killed. In addition, priest Boniface Bwanalonga was arrested and taken to Mr. Ntaganda’s camp in Mongbwalu where he was killed on or about 26 November 2002 by Mr. Ntaganda, who shot him several times in the head with his revolver.

39 UPC/FPLC soldiers also killed a number of fleeing civilians and those who hid in their houses in Pluto. Two other civilians were killed in Nzebi by Mr. Ntaganda’s bodyguards.

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40 In Sayo, UPC/FPLC soldiers killed civilians, including, on one occasion, women, children and members of the clergy who were hiding in Mungu Samaki 146 147 church in Sayo. UPC/FPLC soldiers also killed civilians in Sayo health centre. Moreover, UPC/FPLC soldiers attempted to kill P-0800 in Sayo. 41. On or about 6 December 2002, UPC/FPLC soldiers attacked Kilo, killing 150 151 civilians, after forcing some of them to dig their own graves. UPC/FPLC soldiers 152 153 also attempted to kill a number of civilians, including P-0022. 42. As part of the Second Attack, after the UPC/FPLC had taken control of Kobu, UPC/FPLC patrols were organised and every civilian considered to be an enemy in Kobu was killed immediately or taken to Mr. Mulenda’s compound and executed there upon his orders. In particular, a man and a woman were executed in that compound by UPC/FPLC soldiers, including Commander Simba, and three Lendu men were also killed there by UPC/FPLC soldiers. Moreover, on or about 26 February 2003 in Kobu, UPC/FPLC soldiers attempted to kill P-0019, while she was trying to flee from Mr. Mulenda’s compound, where she was being held prisoner. 43. The evidence also shows that a pacification meeting was convened by Mr. Mulenda on or about 25 February 2003 in Sangi, in the presence of around 50 Lendu civilians, including prominent persons. Those attending the meeting were either killed on the same day in Sangi or taken to Kobu the next day and killed by Commander Simba and other UPC/FPLC soldiers in a banana field behind Hotel Paradiso. Furthermore, UPC/FPLC soldiers attempted to kill P-0018 in Sangi on or about 27 February 2003. 44. UPC/FPLC soldiers also committed acts of killing in Bambu, Lipri, Tsili and Ngongo, more specifically: (i) a civilian woman of Bira ethnicity was killed in Ngongo on 18 February 2003 and an aged man heading to Lipri on 21 February 163 164 2003; (ii) another man was killed in Tsili on 19 February 2003; (iii) a woman and

No. ICC-01/04-02/06 16 9 June 2014 her child were chopped to death with machetes in Bambu on 25 February 2003; (iv) one woman and six children were killed in Bambu by a bomb fired from the Hema village of Mabanga and another woman was captured and slaughtered in Bambu. In Jitchu, “some 92” persons were killed in the centre of the village and in the surrounding forest on 26 February 2003 by the UPC/FPLC soldiers.

Count 3: Attacking Civilians as a War Crime (Article 8(2)(e)(i) of the Statute)

45 The war crime of attacking civilians belongs to the category of offences committed during the actual conduct of hostilities by resorting to prohibited methods of warfare. Article 8(2)(e)(i) of the Statute requires that an attack is directed against a civilian population as such or individual civilians who do not take direct part in hostilities. For the purposes of this war crime, the Chamber considers it appropriate to interpret the term “attack” referred to in element 1 of the relevant Elements of Crimes in light of article 13(2) of Protocol II Additional to the Geneva Conventions of 1949 (“APII”). According to this provision, “attack” means any “acts of violence against the adversary, whether in offence or in defence”. Accordingly, in order to be held criminally responsible for the war crime of attacking civilians, the perpetrator must direct one or more acts of violence (an “attack”) against civilians not taking direct part in the hostilities, before the civilians have fallen into the hands of the attacking party, thus establishing a sufficiently close link between the “attack” against civilians and the conduct of the hostilities. 46. In light of the above legal framework, the Chamber is of the view that the definition of “attack” does not exhaustively list which underlying acts of violence can be considered for the purpose of the war crime of attacking civilians under article 8(2)(e)(i) of the Statute. In characterizing a certain conduct as an “attack”, what matters is the consequences of the act, and particularly whether injury, death, damage or destruction are intended or foreseeable consequences thereof. Accordingly, the Chamber considers that, in principle, any conduct, including shelling, sniping,

No. ICC-01/04-02/06 17 9 June 2014 murder, rape, pillage, attacks on protected objects and destruction of property, may constitute an act of violence for the purpose of the war crime of attacking civilians, provided that the perpetrator resorts to this conduct as a method of warfare and, thus, that there exists a sufficiently close link to the conduct of hostilities. 47. In this respect, the Chamber underlines that this sufficiently close link between acts of violence underlying the “attack” and the actual conduct of hostilities does not exist when the acts of violence (such as murder, rape, pillage or destruction of property) are committed against civilians that have fallen into the hands of the attacking party or are committed far from the combat area. This could be, for example, the case of violent acts committed in a detention camp located away from the frontline or at a location that has fallen under the control of the attacking party following an actual combat action against the adverse party. Thus, in these circumstances, these acts of violence may not be considered as methods of warfare and, by implication, do not constitute the war crime of attacking civilians pursuant to article 8(2)(e)(i) of the Statute. This is, however, without prejudice to these acts being classified as war crimes under other appropriate legal provisions, provided that the nexus to the armed conflict existed at the time of their commission. 48. Applying the above interpretation to the charges presented by the Prosecutor, and taking into account the Chamber’s findings in relation to counts 2 (murder and attempted murder), 5 (rape), 11 (pillaging), 17 (attacking protected objects) and 18 (destroying the enemy’s property), the Chamber considers that the above acts of violence qualify as the underlying conduct of the war crime of attacking civilians. The UPC/FPLC resorted to them as methods of warfare and they were committed against civilians not taking direct part in hostilities that occurred in the course of the First Attack and the Second Attack. Factors that were taken into consideration by the Chamber in this respect were, inter alia, whether superiors ordered or instructed subordinates to use this conduct in a military operation and whether the soldiers effectively resorted to this conduct in the field to take control of a certain location.

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Counts 4 and 5: Rape as a Crime Against Humanity (Article 7(1)(g) of the Statute)

and as a War Crime (Article 8(2)(e)(vi) of the Statute)

49 The evidence shows that as part of the First Attack, during the takeover of Mongbwalu and Sayo, civilians who were accompanying the UPC/FPLC committed rape against civilian women, resulting in vaginal or anal penetration of the body of the victim, with the invasion having been committed by force, threat of force or coercion against the victim. After the takeover of Mongbwalu, UPC/FPLC soldiers also committed acts of rape against civilian women in Mongbwalu. This is demonstrated by the following facts. A girl of about 20 years old was taken by a UPC/FPLC soldier to Mr. Mulenda’s military camp where she was raped by that soldier. Further, on or about 25 November 2002, Mr. Ntaganda and his bodyguards arrested three nuns and took them to Mr. Ntaganda’s camp in 184 185 Mongbwalu, where they were raped.

50 UPC/FPLC soldiers also committed rape during the attack on Kilo. More specifically, P-0022 was imprisoned by a UPC/FPLC soldier in Kilo-Etat, with another eight detainees. While in prison, UPC/FPLC soldiers “ont ordonné aux hommes détenus avec nous de coucher avec les femmes”. Following the order, one of the prisoners “a introduit son poignet” into P-0022’s genital organs.

51 In the context of the Second Attack, members of the UPC/FPLC raped a number of civilians during the attacks on the villages of Lipri, Kobu and Bambu. For example, in Lipri a girl was raped by three UPC/FPLC soldiers. In Bambu, a woman was captured and raped by UPC/FPLC members and subsequently killed. Also, on or about 25 February 2003, in Sangi, UPC/FPLC soldiers forcibly took more than five women to a forest and raped them. Also in Sangi, on or about 27 February 2003, a UPC/FPLC soldier penetrated the vagina of witness P-0018 with his penis while threatening to kill her. Another five women were repeatedly raped by UPC/FPLC soldiers in Sangi. Further, on or about 26 February 2003, P-0113 was vaginally

No. ICC-01/04-02/06 19 9 June 2014 raped by a UPC/FPLC soldier in Buli. On the same day, P-0113 was vaginally raped by another UPC/FPLC soldier on the road from Buli to Kobu, under the threat of death. Once in Kobu, on the evening of the same day, P-0113 was forcibly taken by a soldier into Mr. Mulenda’s room, where the latter raped her. 52. On or about 26 February 2003, P-0019 was raped in Kobu, several times, by UPC/FPLC Commander Linganga. He penetrated her vagina as well as her anus 199 200 with his penis. His gun was beside him throughout this time. Three men who had been arrested were also anally raped at the same place by a group of UPC/FPLC soldiers. On or about the same day, some of the women who were part of the Lendu delegation to the pacification meeting were raped by UPC/FPLC soldiers, including Simba, before being executed in the banana field in Kobu. The soldiers also forced “les prisonniers de coucher entre eux”. UPC/FPLC soldier Simba also had sexual intercourse with a 12 years old girl, after threatening her, at the camp where he was residing in Kobu.

Counts 7 and 8: Sexual Slavery as a Crime Against Humanity (Article 7(1)(g) of the

Statute) and as a War Crime (Article 8(2)(e)(vi) of the Statute)

53 The Chamber concludes that there are substantial grounds to believe that the UPC/FPLC soldiers committed acts of sexual slavery only in the Second Attack, but not in the First Attack. In determining whether the perpetrator exercised powers attaching to the right of ownership over the victim, as a requisite element of the crime of sexual slavery, the Chamber has examined the nature of such relationship by considering various factors collectively. Thus, in regard to the First Attack, the Chamber is not satisfied that the evidence reveals such relationship, the more so compared with the facts and evidence concerning the Second Attack. In particular, the Chamber does not consider that in the absence of other factors, mere imprisonment or its duration are sufficient to satisfy the element of ownership over the victim of the crime of sexual slavery.

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54 With regard to the Second Attack, the crime of sexual slavery is more specifically demonstrated by the following findings. On or about 25 February 2003, P-0019 was arrested by a group of UPC/FPLC soldiers in Sangi together with other prisoners. The soldiers regularly beat them and called them “animals”. Afterwards P-0019 was made to carry pillaged goods from Sangi to Kobu, where she was raped repeatedly by UPC/FPLC Commander Linganga. She was held captive until on or about 27 February 2003. 55. P-0018 was captured in Jitchu by UPC/FPLC soldiers and detained from on or about 26 February to on or about 27 February 2003. She was forced to carry pillaged goods to Buli and Sangi, together with other prisoners. UPC/FPLC soldiers repeatedly raped and beat women among the prisoners, including P-0018. 56. On or about 26 February 2003, P-0113 was captured near Ngabuli and taken to 218 219 Buli, where she had to cook for UPC/FPLC commanders and to carry pillaged goods to Kobu. Under death threats, she was held captive in the house of s UPC/FPLC commander in Kobu and in Bunia. During her captivity, P-0113 was raped several times by UPC/FPLC soldiers, including by Mr. Mulenda. She escaped on or about 28 February 2003. 57. During the attack on Kobu, a Lendu girl of about 12 years old was taken prisoner by a UPC/FPLC soldier to his camp, where she was raped. He then took her with him to Bunia and continued to have sexual intercourse with her. The girl continued to live with the soldier seemingly for the purpose of protection against 226 227 other soldiers. She escaped after the March 2003 operation in Bunia.

Count 10: Persecution as a Crime Against Humanity (Article 7(1)(h) of the Statute)

58 The Chamber recalls its findings in relation to the crimes described in counts 1, 2, 3, 4, 5, 7, 8, 11, 12, 13, 17 and 18 of the DCC and considers that these acts constituted severe deprivations of fundamental rights, contrary to international law,

No. ICC-01/04-02/06 21 9 June 2014 namely the right to life, the right not to be subjected to torture or to cruel, inhuman or degrading treatment and the right to private property. Further, the evidence shows that in the course of the First Attack and Second Attack the UPC/FPLC and, as the case may be, supporting civilians, perpetrated these crimes against the non- Hema civilian population, as found in the present decision, by reason of their ethnic origin.

Count 11: Pillaging as a War Crime (Article 8(2)(e)(v) of the Statute)

59 In making its determination on the count of pillaging, the Chamber has evaluated, on the basis of the evidence available, whether the appropriations by UPC/FPLC troops, including by Mr. Ntaganda, were for private or personal use as opposed to appropriations justified by military necessity. In this respect, the Chamber has been guided by information in the evidence that UPC/FPLC soldiers: (i) were instructed to take any goods that they wanted in the course of an operation; (ii) systematically burnt down and destroyed houses and properties after breaking into them; and (iii) arrested civilians and forced them to carry the looted goods from one location to another or otherwise used aircrafts to carry voluminous items. 60. In the course of the First Attack, UPC/FPLC soldiers as well as the civilians accompanying them, systematically appropriated property in the town of Mongbwalu. The goods, in particular valuable items taken in Mongbwalu such as DVD players, computers, “matériel de bureau” and motorcycles, were transported to Bunia by aircrafts on several flights and were seen at the residences of Mr. Ntaganda and Mr. Mulenda. Mr. Ntaganda had a team of UPC/FPLC officers who took civilian property on his behalf and subsequently transported the property to his residence in Bunia. Mr. Ntaganda himself broke into shops and pillaged goods in Mongbwalu, including a Land Cruiser Jeep from the parish church and medical equipment and medications from a hospital in Mongbwalu.

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61 In Sayo, UPC/FPLC soldiers systematically appropriated property belonging to civilians. Mr. Ntaganda, along with his troops, personally removed certain items from the church in Sayo. 62. In the context of the Second Attack, in Bambu, the UPC/FPLC took property from “the offices of Kilo-Moto, the largest gold-mining company in the region, the hospitals, schools, an orphanage and religious structures”. They also removed and 247 248 249 took away the roofs of houses in Bambu, Kobu and Lipri. In particular, the evidence further indicates that also Gegere civilians accompanying the UPC/FPLC and acting under their control took away the roofs of private houses in Bambu, Kobu and Lipri. 63. UPC/FPLC soldiers also arrested people in Jitchu on 26 February 2003, and civilians in neighbouring villages, and forced them to carry goods that were taken away by the UPC/FPLC. These items included mattresses, clothes, kitchen utensils and bicycles.

Counts 12 and 13: Forcible Transfer of Population and Displacement of Civilians

as a Crime Against Humanity (Article 7(1)(d) of the Statute) and as a War Crime

(Article 8(2)(e)(viii) of the Statute)

64 The Chamber clarifies at the outset that, contrary to the submissions of the Defence, for the purposes of the war crime of displacing civilians, the conduct by which the perpetrator(s) force(s) civilians to leave a certain area is not limited to an order, as referred to in element 1 of the relevant Elements of Crimes. The Chamber considers that, should this not be the case, the actual circumstances of civilian displacement in the course of an armed conflict would be unduly restricted. This is specifically reflected in the general introduction to the Elements of Crimes, which states that “[t]he elements […] apply ‘mutatis mutandis’ to all those whose criminal responsibility may fall under articles 25 and 28 of the Statute”.

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65 The evidence shows that during the First Attack, UPC/FPLC soldiers evicted the civilian population from Mongbwalu. Due to its strategic importance in the gold market, the UPC/FPLC’s goal was to provide security for the mostly Hema, Gegere and Nande traders and “to push out the Lendu in Mongbwalu”. As a result of the assault on Mongbwalu, a considerable number of civilians, mostly Lendu, were forced to leave the area and to take refuge in the surrounding villages. Some of them were injured by machetes or by bullets. Displaced civilians were forced to live in the bush “de façon quasi permanente […] dans l’insécurité la plus complète”. Civilians displaced from Mongbwalu would have been killed had they attempted to return to their houses. Similarly, civilians displaced from Nzebi as a result of the First Attack by the UPC/FPLC soldiers would have been killed had they attempted to return to their houses. 66. As a result of the Second Attack, including the shelling of populated areas and the 263 264 265 killing of people, civilians residing in Lipri, Kobu and Bambu fled to the surrounding bush or to other villages. The evidence indicates that the UPC/FPLC used heavy weapons with no specific target in order to disperse the population; they subsequently caused considerable damage by setting fire to houses, so as to clean the area of the enemy and prevent the population from returning. According to the evidence, civilians displaced from Lipri, Kobu and Bambu would have been killed had they attempted to return to their houses. 67. The UPC/FPLC also forcibly transferred civilians from villages surrounding Lipri, Kobu and Bambu, during the Second Attack. For example, before being attacked, Lipri accommodated approximately 1,200 persons displaced from, inter alia, Nyangaray, which were attacked by the UPC/FPLC shortly before Lipri. On or around 18 February 2003, the population of Tsili fled to other locations such as Petsy, Buli, Goy and Katho, on account of the assault by the UPC/FPLC. Civilians living in Buli, Jitchu and Gutsi were also forced to take refuge in the forest or on the hills following the assault by the UPC/FPLC on or around 25 February 2003.

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68 Taking into consideration that the UPC/FPLC evicted the civilian population from the above-mentioned locations, and absent any indication to the contrary in the evidence, the Chamber considers that the civilians displaced in the course of the First Attack and the Second Attack were lawfully residing in the locations identified above. The evidence further indicates that the acts of displacement perpetrated by UPC/FPLC soldiers during the First Attack and the Second Attack were not justified by the security of the civilians involved or by military necessity, as there is no indication of any precautionary measures having been taken before these acts of displacement were carried out or any reasons linked to the conduct of military operations. In addition, the means used during the First Attack and the Second Attack and the modus operandi show that the UPC/FPLC soldiers were in a position to displace civilians, as further demonstrated by the large number of civilians who were in fact displaced.

Count 17: Attacking Protected Objects as a War Crime (Article 8(2)(e)(iv) of the

Statute)

69 In the course of the First Attack, Mr. Ntaganda and the UPC/FPLC soldiers under his command, directed an attack against protected objects as was the case with the hospital and the church in Mongbwalu, by pillaging property that they found in those buildings. In Sayo, UPC/FPLC troops together with Mr. Ntaganda attacked the church known as “Mungu Samaki” by pillaging goods therein and damaging the infrastructure. As part of the attack on Sayo, UPC/FPLC troops opened fire on the health center, where they pillaged the building, including the property of some civilians. 70. Similarly, during the Second Attack, the UPC/FPLC pillaged “the hospital, all religious structures, the orphanage and the schools [in Bambu], targeting mainly civilian support structures”. More particularly, the hospital was pillaged by UPC/FPLC soldiers and, as a result, “everything was systematically destroyed: from beds

No. ICC-01/04-02/06 25 9 June 2014 to cupboards. Nothing was functional”. The evidence shows that UPC/FPLC troops targeted Bambu, destroying and pillaging property in order to “completely eliminate all chances for the population of the region to have social assistance”. 71. The Chamber considers that the evidence placed before it does not indicate that the protected objects targeted in the course of the First Attack and the Second Attack constituted military objectives, as there is no information about their use related to the armed conflict by the opposing party.

Count 18: Destroying the Enemy’s Property as a War Crime (Article 8(2)(e)(xii) of

the Statute)

72 In the course of the First Attack, destruction of property of the adversary, which was protected from that destruction under international law of armed conflict, took place. More specifically, the UPC/FPLC troops used heavy weapons such as 281 282 mortars in the attack on Mongbwalu, inhabited by a majority of Lendu , which resulted in the destruction of many infrastructures. Shortly after, UPC/FPLC troops systematically shelled Sayo, a predominantly Lendu village, using heavy weapons. UPC/FPLC soldiers also used incendiary grenades and burned houses while people were inside. The attack resulted in the destruction of many houses and buildings in Sayo. The evidence does not indicate that the UPC/FPLC made a distinction between military objectives and civilian objects while shelling the densely populated villages of Mongbwalu and Sayo. Consequently, the Chamber finds that the destruction of infrastructures was not required by military necessity. 73. In the course of the Second Attack, UPC/FPLC troops were ordered to “flatten” the villages of Kobu, Bambu, Lipri and their surrounding villages. In carrying out that order, UPC/FPLC troops and Hema civilian supporters set fire to the straw houses and destroyed permanent structures mostly by removing their metal roofs in 291 292 293 294 295 296 297 298 299 Kobu, Lipri, Bambu, Camp P.M., Buli, Jitchu, Djuba, Sangi, Tsili, 300 301 302 303 304 Katho, Gola, Mpetsi/Petsi, Avetso, Nyangaray, Pili, Mindjo, Langa, Dyalo,

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305 306 307 308 309 Wadda, Goy , Dhepka, Mbidjo, Thali and Ngabuli . Furthermore, 310 311 312 UPC/FPLC troops destroyed fields in Kobu, Camp P.M. and Lipri. In the Chamber’s view, the evidence demonstrates that most of the destroyed property belonged to the civilian population and in particular to the Lendu which was the predominant ethnic group in Walendu-Djatsi collectivité. Further, the evidence shows that the UPC/FPLC destroyed and burned the villages after the departure of the adverse party. Consequently, the Chamber finds that the destruction was not required by military necessity.

D. Findings on the Specific Crimes in Counts 6, 9, 14, 15 and 16

74 On the basis of the evidence presented, the Chamber finds that:

There are substantial grounds to believe that in the context of the Non- International Armed Conflict, the UPC/FPLC soldiers committed acts of enlistment, including Mr. Ntaganda himself, as well as acts of conscription of children under the age of 15 years between on or about 6 August 2002 and 31 December 2003, in Ituri, in the DRC.

There are also substantial grounds to believe that the UPC/FPLC soldiers used children under the age of 15 years to participate actively in hostilities between on or about 6 August 2002 and on or about 30 May 2003, including Mr. Ntaganda himself, between on or about 6 August and March 2003, in Ituri, in the DRC.

There are substantial grounds to believe that the UPC/FPLC soldiers committed acts of rape and sexual slavery against child soldiers under the age of 15 years between on or about 6 August 2002 and 31 December 2003, in Ituri, in the DRC.

75 The Chamber clarifies that the findings in paragraph 74 above are more specifically supported by the facts presented in each subsection related to counts 6, 9, 14, 15 and 16.

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Counts 6 and 9: Rape and Sexual Slavery of Child Soldiers as War Crimes (Article

8(2)(e)(vi) of the Statute)

76 With regard to counts 6 and 9, the Chamber notes that the Prosecutor charges Mr. Ntaganda with the rape and sexual slavery of “UPC/FPLC child soldiers under the age of 15”. The Chamber also notes the Defence argument according to which the crimes of rape and sexual slavery against these persons are not foreseen by the Statute, as international humanitarian law (“IHL”) does not protect persons taking part in hostilities from crimes committed by other persons taking part in hostilities on the same side of the armed conflict. Accordingly, the Chamber shall first consider whether, as a matter of law, the Court may exercise jurisdiction over alleged acts of rape and/or sexual slavery committed by members of the UPC/FPLC against UPC/FPLC child soldiers under the age of 15 years. 77. The Chamber takes note of common article 3 of the 1949 Geneva Conventions, the relevant part of which sets forth that “[p]ersons taking no active part in the hostilities […] shall in all circumstances be treated humanely”. The Chamber also notes the relevant parts of article 4(1) and (2) of APII, which stipulate that “[a]ll persons who do not take a direct part or who have ceased to take part in hostilities […] shall in all circumstances be treated humanely” and that the following acts against these persons “are and shall remain prohibited at any time and in any place whatsoever: […] (e) outrages upon personal dignity, in particular […] rape, enforced prostitution and any form of indecent assault”. Accordingly, in order to determine whether UPC/FPLC child soldiers under the age of 15 years are entitled to protection against acts of rape and sexual slavery by other members of the UPC/FPLC, the Chamber must assess whether these persons were taking direct/active part in hostilities at the time they were victims of acts of rape and/or sexual slavery. 78. In this regard, the Chamber is guided by the prohibition under article 4(3)(c) of APII to recruit and use children under the age of 15 years to take part in hostilities,

No. ICC-01/04-02/06 28 9 June 2014 as reflected in article 8(2)(e)(vii) of the Statute. In the view of the Chamber, the direct/active participation in hostilities of children under the age of 15 years must be assessed in the light of this specific prohibition. Accordingly, the mere membership of children under the age of 15 years in an armed group cannot be considered as determinative proof of direct/active participation in hostilities, considering that their presence in the armed group is specifically proscribed under international law in the first place. Indeed, to hold that children under the age of 15 years lose the protection afforded to them by IHL merely by joining an armed group, whether as a result of coercion or other circumstances, would contradict the very rationale underlying the protection afforded to such children against recruitment and use in hostilities. 79. Nonetheless, in the view of the Chamber, children under the age of 15 years lose the protection afforded by IHL only during their direct/active participation in hostilities. That said, the Chamber clarifies that those subject to rape and/or sexual enslavement cannot be considered to have taken active part in hostilities during the specific time when they were subject to acts of sexual nature, including rape, as defined in the relevant Elements of Crimes. The sexual character of these crimes, which involve elements of force/coercion or the exercise of rights of ownership, logically preclude active participation in hostilities at the same time. 80. Accordingly, the Chamber finds that UPC/FPLC child soldiers under the age of 15 years continue to enjoy protection under IHL from acts of rape and sexual slavery, as reflected in article 8(2)(e)(vi) of the Statute. The Chamber is, therefore, not barred from exercising jurisdiction over the crimes in counts 6 and 9. 81. The crimes under counts 6 and 9 are demonstrated by the following findings of the Chamber. Witness P-0758, aged 13 at the time, was abducted by UPC/FPLC soldiers in or around July-August 2002 and raped in several UPC/FPLC camps, including Lingo camp, where she underwent training. The rapes continued throughout her training which lasted around 3 months. Two other girls, one aged

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9 and another under 13 were raped in Lingo camp during the training period of witness P-0758. They were unable to escape from the camp as there were soldiers 324 325 around and “they shot at people who tried to flee”. Also, women in the UPC/FPLC camps, and this included children under the age of 15 years, were likened to a “guduria”, a large cooking pot, to express the fact that any soldiers could sleep with them at any time. 82. Further, Abelanga, a UPC/FPLC soldier, raped a girl under the age of 15 years who was his bodyguard from November 2002 until at least March-May 2003. Around mid-August – beginning of September 2002, young girls, including under 329 330 the age of 15 years, were raped in Mandro camp. They were “domestic servants” and they “combined cooking and love services.” Another girl, aged 13 years, was recruited by the UPC/FPLC and continuously raped by Kisembo, a UPC/FPLC soldier, until he was killed in Mongbwalu.

Counts 14, 15 and 16: Conscripting or Enlisting Children under the Age of Fifteen

Years into Armed Forces or Groups or Using them to Participate Actively in

Hostilities as War Crimes (Article 8(2)(e)(vii) of the Statute)

83 Before making its findings on each of the crimes charged by the Prosecutor in counts 14, 15 and 16, the Chamber will address some of the issues raised by the Defence relating to all three counts. Regarding the Defence challenge in respect of the temporal and territorial scope of these charges, the Chamber considers that in light of the continuous nature of the crimes under article 8(2)(e)(vii) of the Statute, coupled with the fact that the UPC/FPLC was continually on the move between various locations in the Province of Ituri, it may be permissible for the Prosecutor not to identify specific locations and dates of enlistment, conscription or use of children under the age of 15 years to participate actively in hostilities, provided it is demonstrated that a child was integrated in the armed group or was used to participate actively in hostilities within the temporal and geographical framework of

No. ICC-01/04-02/06 30 9 June 2014 the charges. Thus, in the context of the present case, where recruitment into the UPC/FPLC did not occur in one single place, but rather at various locations throughout Ituri on unspecified dates, the Chamber has considered evidence of conscription, enlistment and use of children under the age of 15 years to participate actively in hostilities throughout the Province of Ituri, for the period as charged. 84. In response to the Defence claim that the age assessment be grounded on objective and verifiable criteria, and its contention that the burden of proof has been reversed with respect to some pieces of evidence, the Chamber indicates that it has considered for the purpose of the present determination, inter alia, evidence from several witnesses who observed children under the age of 15 years at training camps, within the ranks of the UPC/FPLC, or at demobilization centres. In this regard, the Chamber highlights that it has not relied exclusively on the age estimates provided by the witnesses, but has also considered their description of the children’s behaviour and/or physical appearance supporting the conclusion that the individuals were under the age of 15 years. Nevertheless, the Chamber has remained mindful of possible uncertainties in age estimates based on physical appearance and/or behaviour, as opposed to an objective proof of age, and has exercised caution and allowed for a margin of error. The same holds true for video material and photographs. Finally, the Chamber has not used evidence related to child soldiers where it was not satisfied that such evidence referred to persons under the age of 15 years, unless corroborated by other pieces of evidence providing more precision on the age of the children. 85. Regarding counts 14 and 15, the evidence shows that at least as of August 2002, the UPC/FPLC implemented a policy to recruit members into its armed wing, be it on a coercive or voluntary basis, without placing any restrictions on the minimum age of the recruits. New recruits, including children under the age of 15 years, would be enlisted and accepted at training camps if they were considered able to carry and fire a weapon and undergo training.

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86 As part of its recruitment campaign, the UPC/FPLC also implemented a policy of asking Hema families to contribute a child to the movement. The Chamber notes that some parents would send their children for training voluntarily, as a form of support for the UPC/FPLC. However, when families refused to provide children to the UPC/FPLC, the calls to contribute took the form of an obligation. Failing to provide children for recruitment purposes could result in imprisonment, or in the community as a whole being left unprotected from future enemy attacks, as in the case of the village of Bogoro. The evidence shows that the recruitment method described above resulted in the conscription of children under the age of 15 years, as parents felt pressured to send them into the UPC/FPLC. 87. Children, including under the age of 15 years, were also abducted by UPC/FPLC soldiers from schools, streets or marketplaces. For example, in July or August 353 354 2002, witness P-0758, aged 13 at the time, was abducted by UPC/FPLC soldiers at a roadblock and taken to Lingo camp for training. She remained with the armed 356 357 group until the arrival of the “Operation Artemis” contingent, in July 2003. In August 2002, a boy aged 13 was recruited by force in or around Mudzipela by six UPC/FPLC soldiers and taken to Mandro training camp. On 8 November 2002, the UPC/FPLC entered the École Primaire of Mudzipela and forcibly rounded up the entire fifth grade, approximately forty children, for military service. Further, on 15 February 2003, between fifty and sixty people, including children aged as young as 10, were taken by force from Ndrele market by UPC/FPLC soldiers, put in a truck, and sent to the training camp at Mont Awa. On 20 February 2003, a boy aged 12 was recruited in Mahagi-Port by a UPC/FPLC commander, while his mother resisted the recruitment. During the same month, a 14-year-old boy was recruited by force on the road to Mongbwalu market by Mr. Lubanga himself and six other soldiers, and sent to Mandro training camp. 88. Children under the age of 15 years also voluntarily joined the UPC/FPLC. In particular, in August 2002, a 10-year-old boy joined the UPC/FPLC at Mandro camp,

No. ICC-01/04-02/06 32 9 June 2014 where he undertook 5 months of military training. In October 2002, a 14-year-old boy voluntarily joined the UPC/FPLC at Mandro camp, under the command of Chef Kawa. In January 2003, a girl from Bunia voluntarily joined the UPC/FPLC at 14 years of age. She underwent one month of military training and was deployed in February 2003 at the office of the Chief of Staff. A boy aged 14 was voluntarily integrated into the UPC/FPLC after a fighting in Bogoro in March 2003. Further, Mr. Ntaganda himself enlisted several children under the age of 15 years who underwent military training at Mandro camp before the First Attack. 89. The Chamber finds that following enlistment or conscription by the UPC/FPLC, children under the age of 15 years, boys and girls, were present in a number of UPC/FPLC training camps, between 6 August 2002 and August 2003: (i) at Mandro, from August 2002 until July 2003; (ii) at Rwampara, until August 2003 at the 372 373 latest; (iii) at Lingo, until after the battle of Lonyo; and (iv) in Mongbwalu, until August 2003 . During training no distinction was made between children and adults. 90. In addition to training in camps, the Chamber finds that children below 15 years of age also received training at the UPC/FPLC Headquarters in Bunia, at least between 30 July and 20 August 2002. Further, between the end of 2002 and the beginning of 2003, four boys under 15 years of age were trained in radio communications at Mr. Ntaganda’s residence, in Bunia. 91. Once they had completed their training, the recruits, including children under the age of 15 years, were given a weapon and a uniform and assigned to a battalion or brigade, to the UPC/FPLC Headquarters or the presidency, and some remained at the training camps. The presence of children under the age of 15 years within the ranks of the UPC/FPLC is specifically evidenced by the fact that on 12 February 2003, a letter concerning the selection of 13 child soldiers aged 10 to 15/16 years old for demobilisation purposes (the”12 February 2003 letter”), was sent by the UPC

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National Secretary for Education to the G5 Commander of the FPLC . Further, in the spring of 2003 approximately 45 children, some younger than 15 years of age, were selected from among the UPC/FPLC troops and placed in a “Kadogo Unit”, stationed at the General Staff in Mamedi. 92. Apart from the 12 February 2003 letter, the UPC/FPLC issued throughout the timeframe of the charges a series of orders aimed at demobilizing soldiers under the 383 384 385 age of 18 years, namely on 21 October 2002, 27 January 2003, and 1 June 2003 . The Chamber finds that the UPC/FPLC did not genuinely consider implementing a plan for the demobilization of children from its ranks. To the extent that demobilization measures were taken, such actions either concerned only a limited 387 388 number of individuals, or children were re-armed soon after being demobilized. Children under the age of 15 years remained within the UPC/FPLC after each 389 390 demobilisation order, throughout the year 2003. Further, demobilisation centres recorded the arrival of children under the age of 15 years from the UPC/FPLC at least until the end of the year 2003. 93. With regard to count 16, the Chamber finds that children under the age of 15 years were used by the UPC/FPLC to participate actively in hostilities at different locations throughout the Province of Ituri, including for active participation 394 395 in combat-related activities, such as support for combatants, as military guards, 396 397 informants, escorts or bodyguards. 94. Children under the age of 15 years participated actively in hostilities in: (i) Bunia, 398 399 400 401 in August 2002, March 2003, and May 2003; (ii) Zumbe, in October 2002; (iii) 402 403 Komanda, in October 2002; (iv) Mongbwalu and Kilo, in November-December 404 405 2002; and (v) during the Lipri, Bambu, Kobu operation, in February-March 2003. 95. Between 30 July and 20 August 2002, children between the ages of 7 and 13 years were used by the UPC/FPLC leadership as informants, “to spy on the enemies”.

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Between 29 and 30 October 2002, two “kadogos” aged around 10 to 12 years guarded witness P-0024 while he was detained by the UPC/FPLC in Bunia. Witness P-0758 took part in night patrols during her time in the UPC/FPLC. She also worked as a guard at a roadblock, in a place called Kosovo.

96 Furthermore, boys and girls under the age of 15 years were used in the UPC/FPLC as bodyguards and escorts. Between August 2002 and March 2003, Mr. Ntaganda himself had child-soldiers bodyguards under the age of 15 years, as young as 8. Children under the age of 15 years were also seen guarding his residence in Bunia, from the end of 2002 until the beginning of 2003. The children in Mr. Ntaganda’s escort participated alongside him in hostilities. Similarly, other UPC commanders and officials used children under the age of 15 years as bodyguards. Children under 15 years of age were also seen guarding Mr. Lubanga’s residence, at least from October 2002 until on or about 30 May 2003.

IV. FINDINGS ON INDIVIDUAL CRIMINAL RESPONSIBILITY

97 On the basis of the evidence presented the Chamber finds that:

There are substantial grounds to believe that Mr. Ntaganda is criminally responsible for the crimes specified below according to the modes of liability set out hereafter: indirect co-perpetration, pursuant to article 25(3)(a) of the Statute, for the crimes committed and set forth in: (i) counts 1 to 5, 10 to 13, 17 and 18 during the First Attack, including the acts of attempted murder in conformity with article 25(3)(f) of the Statute; (ii) counts 1 to 5, 7, 8, 10 to 13 and 18 during the Second Attack, including the acts of attempted murder in conformity with article 25(3)(f) of the Statute; (iii) counts 6, 9 and 14 to 16 during the Non-International Armed Conflict;

direct perpetration, pursuant to article 25(3)(a) of the Statute, for the crimes committed and set forth in: (i) counts 1 to 3, 10, 11 and 17 during the First Attack;

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(ii) counts 15 and 16 during the Non-International Armed Conflict;

ordering, pursuant to article 25(3)(b) of the Statute, for the crimes committed and set forth in: (i) counts 1 to 5, 10 to 13 and 17 during the First Attack, including the acts of attempted murder in conformity with article 25(3)(f) of the Statute; (ii) counts 1 to 5, 7, 8, 10 and 11 during the Second Attack, including the acts of attempted murder in conformity with article 25(3)(f) of the Statute; (iii) count 16 during the Non-International Armed Conflict;

inducing, pursuant to article 25(3)(b) of the Statute, for the crimes committed and set forth in: (i) counts 1 to 5, 10 to 13 and 17 during the First Attack, including the acts of attempted murder in conformity with article 25(3)(f) of the Statute; (ii) counts 1 to 5, 7, 8, 10 and 11 during the Second Attack, including the acts of attempted murder in conformity with article 25(3)(f) of the Statute; (iii) count 16 during the Non-International Armed Conflict;

contributing to the commission or attempted commission of crimes by a group of persons acting with a common purpose in any other way, pursuant to article 25(3)(d) of the Statute, in respect of: (i) counts 1 to 5, 10 to 13, 17 and 18 during the First Attack, including the acts of attempted murder in conformity with article 25(3)(f) of the Statute; (ii) counts 1 to 5, 7, 8, 10 to 13, 17 and 18 during the Second Attack, including the acts of attempted murder in conformity with article 25(3)(f) of the Statute; (iii) counts 6, 9 and 14 to 16, during the Non-International Armed Conflict;

acting as a military commander, pursuant to article 28(a) of the Statute, for the crimes committed and set forth in: (i) counts 1 to 5, 10 to 13, 17 and 18 during the First Attack, including the acts of attempted murder in conformity with article 25(3)(f) of the Statute; (ii) counts 1 to 5, 7, 8, 10 to 13, 17 and 18 during the Second Attack, including the acts of attempted murder in conformity with article 25(3)(f) of the Statute;

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(iii) counts 6, 9 and 14 to 16, during the Non-International Armed Conflict.

There are no substantial grounds to believe that Mr. Ntaganda is criminally responsible as a direct co-perpetrator for any of the crimes charged under counts 1 to 18.

98 The Chamber clarifies that the findings in paragraph 97 above are more specifically supported by the facts presented in each of the following subsections. Taking into consideration that the Prosecutor charged Mr. Ntaganda with 18 counts of crimes against humanity and war crimes on the basis of 7 modes of responsibility, the Chamber deems it appropriate, for ease of reference, to provide a chart annexed to this decision to clarify for which crimes Mr. Ntaganda is responsible and under which particular mode(s) of responsibility.

99 The Chamber notes that the Prosecutor has charged Mr. Ntaganda with the crimes contained in counts 1 to 18 pursuant to, as the case may be, articles 25(3)(a) (direct perpetration and direct or indirect co-perpetration), 25(3)(b) (ordering or inducing), 25(3)(d)(i) or (ii), 25(3)(f) and/or 28(a) of the Statute. According to the Prosecutor, “[c]onfirming charges for alternative modes of liability promotes judicial efficiency and reduces the potential disruptive effect at the trial stage of notification that the legal characterisation of the facts may change”. The Defence argues that the approach of the Prosecutor results in a failure to clearly support the charges against Mr. Ntaganda, including the relevant mode of liability.

100 As held previously by the Chamber, “the Prosecutor may generally charge in the alternative”. At this stage of the proceedings, the Chamber is not called upon to engage in a full-fledged trial and to decide on the guilt or innocence of the person charged. Rather, the mandate of the Pre-Trial Chamber is to determine which cases should proceed to trial. Additionally, the Chamber may be presented with facts, supported with evidence, which may satisfy different modes of responsibility. Accordingly, the Chamber considers that at this stage of the proceedings it may

No. ICC-01/04-02/06 37 9 June 2014 confirm alternative charges presented by the Prosecutor as long as each charge is supported by sufficient evidence to establish substantial grounds to believe that the suspect has committed one or more of the crimes charged. In this regard, the Chamber recalls article 61(5) of the Statute, which levies on the Prosecutor to support “each charge” with sufficient evidence. Whether or not the Prosecutor has done so is a question to be assessed by the Chamber in light of its determination under article 61(7) of the Statute. Accordingly, the Prosecutor’s “failure” to support the charges against Mr. Ntaganda, as asserted by his Defence, is mainly an evidentiary question which should be resolved under this article. Should the Chamber determine that the Prosecutor has not supported each charge with sufficient evidence to the required evidentiary threshold, the result is, inter alia, to decline to confirm one or more of the charges. It follows that the Defence argument must be rejected.

A. Article 25(3)(a) of the Statute – Indirect Co-Perpetration

101 The Chamber recalls that, in order to make a finding on Mr. Ntaganda’s criminal responsibility in compliance with the mode of liability of indirect coperpetration, the objective and subjective elements of article 25(3)(a) of the Statute must be fulfilled. 102. Based on the evidence presented, the Chamber finds that, jointly with other persons, Mr. Ntaganda committed the crimes in counts 1 to 18 “through another person”, namely UPC/FPLC members and/or Hema civilians, to the extent specified below. Accordingly, the Chamber finds that Mr. Ntaganda bears criminal responsibility as an indirect co-perpetrator, and not as a direct co-perpetrator, under article 25(3)(a) of the Statute for the crimes set forth in said counts. 103. Furthermore, the Chamber considers that the findings in relation to this mode of liability also concern the attempted acts of murder, as described previously in the present decision. In addition, the Chamber finds that the instances of attempted murder resulted from the implementation of the common plan and that the crime of

No. ICC-01/04-02/06 38 9 June 2014 murder did not occur because of circumstances independent of the perpetrator’s intentions, as stipulated in article 25(3)(f) of the Statute. Therefore, the Defence argument that Mr. Ntaganda cannot be linked to the instances of attempted murder must be dismissed.

Objective Elements

104 The Chamber recalls that the objective elements of the mode of liability of indirect co-perpetration under article 25(3)(a) of the Statute are the following: (a) the suspect must be part of a common plan or an agreement with one or more persons; (b) the suspect and the other co-perpetrator(s) must carry out essential contributions in a coordinated manner which result in the fulfilment of the material elements of the crime; (c) the suspect must have control over the organisation; (d) the organisation must consist of an organised and hierarchical apparatus of power; (e) the execution of the crimes must be secured by almost automatic compliance with the orders issued by the suspect.

Common Plan

105 From 6 August 2002 onwards and throughout the period relevant to the charges, Mr. Ntaganda was part of a common plan amongst members of the UPC/FPLC to assume military and political control over Ituri. As part of the common plan, Mr. Ntaganda and others sought to take over non-Hema dominated areas and expel the non-Hema civilian population, particularly the Lendu, from Ituri. Further, the Chamber is satisfied that the common plan contained an element of criminality, as evidenced by the crimes described previously in Sections C and D. 106. After meeting with other persons to discuss the military preparations for the 427 428 assault on Bunia, Mr. Ntaganda took part in this assault as of 6 August 2002. Moreover, Mr. Ntaganda, who was appointed Deputy Chief of Staff of the UPC/FPLC at the beginning of September 2002, regularly took part in meetings between different organs of the UPC/FPLC and habitually informed his superiors

No. ICC-01/04-02/06 39 9 June 2014 of military developments. Furthermore, in relation to the First Attack, Mr. Ntaganda was assigned responsibility for capturing Mongbwalu at a meeting of the UPC/FPLC military high command. With regard to the Second Attack, Mr. Ntaganda attended a meeting with several other UPC/FPLC members in Mr. Lubanga’s office a few days before the start of this attack. In this meeting: (i) it was agreed to open the road between Bunia and Mongbwalu as it had been blocked 434 435 by the Lendu; (ii) the logistics of the operation were discussed; and (iii) the participants were allotted different tasks - for instance, brigade commanders were assigned an area to attack, one person was designated to control the operation, and others were placed in charge of fighting on the ground. In addition, Mr. Ntaganda communicated closely with UPC/FPLC troops throughout the First 437 438 Attack and the Second Attack. Accordingly, the concerted action of Mr. Ntaganda and other persons leads the Chamber to conclude that they entered into a common plan to assume military and political control over Ituri as of at least 6 August 2002. 107. The Defence denies the existence of such a common plan and claims that the UPC/FPLC was not “a group of Hemas” and that it “had as objective to protect the entire population and all ethnic groups”. However, on the basis of the evidence set out above, the Chamber concludes that these arguments cannot refute the existence of the common plan.

Essential Contribution

108 Mr. Ntaganda, as Deputy Chief of Staff of the UPC/FPLC, together with other persons involved in the common plan, provided an essential contribution resulting in the fulfilment of the material elements of the crimes charged. The Chamber also considers that, in the absence of Mr. Ntaganda’s essential contribution, the common plan would have been frustrated. Mr. Ntaganda was instrumental in the organisation, coordination and execution of the aforementioned crimes, as set out below. In addition, he was described as “really absolutely necessary” within the

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UPC/FPLC. However, in relation to the Second Attack specifically, the Chamber will not assess whether the essential contribution provided by Mr. Ntaganda resulted in the fulfilment of the material elements of the war crime set forth in count 17, considering that, for the reasons provided below, he lacked the mens rea for this crime. 109. With regard to the First Attack, the Chamber is satisfied that Mr. Ntaganda provided an essential contribution resulting in the fulfilment of the material elements of the crimes against humanity described in counts 1, 4, 10 and 12 and the war crimes set forth in counts 2, 3, 5, 11, 13, 17 and 18. As specified below, the Chamber finds that Mr. Ntaganda played an overall coordinating role before and during the execution stage of the crimes. 110. More specifically, in preparation for the First Attack, Mr. Ntaganda: (i) arranged for weapons to be transported by aircraft from Bunia to Aru and distributed them to the troops; (ii) travelled from Aru to Bunia to secure additional troops for the 448 449 attack; and (iii) liaised with subordinates. 111. Furthermore, at a parade in Mabanga in November 2002 before the First Attack, Mr. Ntaganda told UPC/FPLC troops that everyone encountered in Mongbwalu was to be considered an enemy, which was generally interpreted to mean that all human beings should be killed. At this parade, Mr. Ntaganda also used the expression 451 452 “piga na kuchaji”, which was taught to UPC/FPLC troops during training and which means to fight and take any goods encountered, including women. Accordingly, the fighters were free to decide what to do with these women. Moreover, at a briefing with a subordinate and General Jérôme in the latter’s residence in Aru before the First Attack, Mr. Ntaganda issued instructions to chase away the Lendu. 112. Also in the course of the First Attack, Mr. Ntaganda commanded the troops, 457 458 took part in the fighting, provided instructions to troops and communicated

No. ICC-01/04-02/06 41 9 June 2014 with subordinates. He further: (i) repeatedly told his subordinates to eliminate all Lendu, without distinguishing between those who were taking a direct part in hostilities and those who were not; (ii) armed young Hema civilians and instructed them to kill and chase away the Lendu; (iii) instructed UPC/FPLC troops to remove goods after Mongbwalu was taken; (iv) told a subordinate to take any goods from Mongbwalu church and, if necessary, to destroy the church; (v) sent his bodyguards to rape three Lendu nuns who were held in his apartment in Kilo- Moto; and (vi) instructed subordinates to kill two Lendu prisoners at his 465 466 compound as well as two Lendu civilians returning to their homes in Nzebi. 113. In relation to the Second Attack, Mr. Ntaganda provided an essential contribution resulting in the fulfilment of the material elements of the crimes against humanity described in counts 1, 4, 7, 10 and 12 and the war crimes set forth in counts 2, 3, 5, 8, 11, 13 and 18. As described below, the Chamber concludes that Mr. Ntaganda assumed a coordinating role before the execution stage of the crimes. 114. At a meeting in Mr. Lubanga’s office a few days before the start of the fighting on 12 February 2003, it was, inter alia, agreed that Mr. Ntaganda was to “control the fighting as it was happening” from Bunia. In this regard, he: (i) was in contact with the troops through a manpack and a Motorola; (ii) received updates on the 473 474 situation in the field; and (iii) issued operational orders concerning the fighting. 115. In addition, in respect of Mr. Ntaganda’s instructions issued at the Mabanga parade, a UPC/FPLC insider explains that: “[l]’ordre, c’était toute personne rencontrée là-bas doit être exécutée. À part MONGBWALU, je peux dire même à KOBU”. This conclusion is further supported by the fact that Mr. Mulenda, a subordinate of Mr. Ntaganda who was present at the Mabanga parade, issued almost identical instructions at a parade in Kilo a few hours before the Second Attack. Mr. Mulenda told UPC/FPLC troops to shoot at everything and used the expression “kupiga na

No. ICC-01/04-02/06 42 9 June 2014 kuchaji”, meaning that they should fight and pillage everything, including women.

116 The evidence also reveals that Mr. Ntaganda provided an essential contribution resulting in the fulfilment of the material elements of the war crimes set forth in counts 6, 9, 14, 15 and 16 during the Non-International Armed Conflict. Mr. Ntaganda oversaw the recruitment, training and deployment of troops in the UPC/FPLC. In this regard, the Chamber recalls that the UPC/FPLC had children under the age of 15 years within its ranks and that girls under the age of 15 years were placed in camps under the authority of male UPC/FPLC members.

117 Mr. Ntaganda was officially in charge of recruitment and training in the UPC/FPLC. In this capacity, he regularly visited UPC/FPLC training camps where, inter alia, children under the age of 15 years underwent training. These visits, for example, included: (i) the UPC headquarters in Bunia in, inter alia, August 2002 on a nearly daily basis; (ii) Mandro on two occasions in late August 2002 or the 487 488 beginning of September 2002; (iii) Lingo in or around October 2002; and (iv) Rwampara on 12 February 2003 and at one point in June, July or August 2003. During such visits, he verified the recruits’ progress in respect of their training, encouraged them by stressing their importance to the UPC/FPLC and its 492 493 goals, provided them with food, and promised them uniforms for completing their training. Mr. Ntaganda also specifically instructed a radio-communications expert to “train his ‘children’”, including those who were under the age of 15 years, in his Bunia residence in late 2002. Further, Mr. Ntaganda decided on the deployment of those trained in UPC/FPLC camps to different sectors, including children under the age of 15 years. Some of these children were subsequently sent off to fight.

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Control Over an Organised and Hierarchal Apparatus of Power and Execution of

the Crimes by Almost Automatic Compliance with the Orders

118 Based on the evidence presented, the Chamber finds that the remaining three objective elements pertaining to indirect co-perpetration have also been fulfilled. 119. As described in more detail above, the UPC was a structured political organisation and the FPLC functioned as a fully-fledged military force. In these circumstances, the Chamber considers that, for the same reasons, the UPC/FPLC constituted an organised and hierarchical apparatus of power. The Chamber further specifies that the active recruitment pursued by the UPC/FPLC ensured that it had fungible individuals capable of being replaced by others. 120. Moreover, the Chamber concludes that Mr. Ntaganda had control over the UPC/FPLC and that his orders were complied with almost automatically. Mr. Ntaganda was appointed Deputy Chief of Staff at the beginning of September 501 502 2002 and officially became Chief of Staff in December 2003. He was considered to be the military expert in the UPC/FPLC and, accordingly, had significant military responsibilities, such as developing and implementing military strategies and securing weapons from, inter alia, Rwanda. In addition, Mr. Ntaganda routinely issued instructions to subordinates and specifically insisted on compliance with his orders. He also ensured respect for discipline by ordering the arrest and imprisonment of disobedient subordinates and went as far as personally 509 510 shooting or ordering the execution of insubordinate UPC/FPLC members.

Subjective Elements

121 The Chamber recalls that, in order to attribute criminal responsibility to Mr. Ntaganda for the crimes set out in the counts above, the following subjective elements, must also be met:

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(a) the suspect must satisfy the subjective elements of the crimes namely (i) intent and knowledge within the meaning of article 30 of the Statute, unless otherwise provided in the Statute or the Elements of Crimes; (ii) and specific intent (dolus specialis) where required; (b) the suspect and the other coperpetrators must be mutually aware and accept that implementing the common plan will result in the fulfilment of the material elements of the crimes; and (c) the suspect must be aware of the factual circumstances enabling him to exercise joint control over the commission of the crime through another person(s).

Mens Rea for Crimes Against Humanity Committed in the First Attack and the

Second Attack

122 Based on a review of the evidence, the Chamber finds that Mr. Ntaganda was aware that the crimes against humanity committed in the course of the First Attack and the Second Attack were part of a widespread and systematic attack directed against the civilian population, namely the non-Hema group, and that he fulfils the other subjective elements of the crimes against humanity set forth in: (i) counts 1, 4, 10 and 12 in the First Attack; and (ii) counts 1, 4, 7, 10 and 12 in the Second Attack. Moreover, the Chamber clarifies that Mr. Ntaganda also fulfils the specific subjective element related to count 10.

123 The Chamber, more specifically, finds that Mr. Ntaganda acted with dolus directus in the first degree concerning the crimes against humanity committed during the First Attack. Mr. Ntaganda repeatedly instructed UPC/FPLC members to 515 516 carry out acts of murder and forcible transfer against the Lendu and, on one occasion, he provided instructions to young Hema civilians in Mongbwalu to commit identical acts (counts 1 and 12). Furthermore, Mr. Ntaganda used the expression “piga na kuchaji”, which provided his subordinates with a carte blanche concerning any women encountered. This entails the raping of women and can be particularly inferred from the fact that he specifically sent his bodyguards to rape three Lendu nuns (count 4).

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124 The Chamber further finds that, in relation to the Second Attack, Mr. Ntaganda acted with dolus directus in the second degree. He knew that the crimes against humanity in counts 1, 4, 7, and 12 would be the almost inevitable outcome of the implementation of the common plan. More specifically, following the commission of these crimes in the course of the First Attack: (i) Mr. Ntaganda participated in the 521 522 preparation of the Second Attack; (ii) directed the fighting from Bunia; and (iii) his criminal instructions issued at the Mabanga parade remained applicable to the Second Attack. 125. Moreover, the Chamber finds that Mr. Ntaganda was also aware of the factual circumstances that established the lawfulness of the presence of the civilians in the locations covered by the First Attack and the Second Attack (count 12). The evidence shows that these locations were regularly inhabited by persons of different ethnicities and there is no indication in the evidence that their presence was unlawful. 126. The Chamber further specifies that Mr. Ntaganda acted with discriminatory intent, in respect of the First Attack and the Second Attack (count 10). Mr. Ntaganda repeatedly expressed hostility towards the non-Hema, in particular the Lendu group, and sought to attack a particular part of the civilian population on ethnic grounds by way of the crimes specified above.

Mens Rea for War Crimes Committed in the First Attack and the Second Attack

127 Based on the evidence, the Chamber finds that Mr. Ntaganda was aware of the factual circumstances that established the existence of the Non-International Armed Conflict and that he fulfils the other subjective elements concerning the commission of the war crimes contained in: (i) counts 2, 3, 5, 11, 13, 17 and 18 in the First Attack; and (ii) counts 2, 3, 5, 8, 11, 13 and 18 with regard to the Second Attack. Moreover, the Chamber clarifies that Mr. Ntaganda also fulfils the specific subjective elements related to counts 3, 11 and 17.

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128 With regard to the First Attack, the Chamber finds that Mr. Ntaganda acted with dolus directus in the first degree in respect of the crimes set forth in counts 2, 3, 5, 11, 13 and 17. As described above, Mr. Ntaganda issued instructions concerning 530 531 532 acts of murder, displacement of civilians, as well as rape (counts 2, 5 and 13). Furthermore, since he repeatedly ordered subordinates to eliminate the Lendu, whether or not they were taking a direct part in hostilities, Mr. Ntaganda also intended to direct attacks against the civilian population as such or against individual civilians not taking direct part in hostilities (count 3). Moreover, Mr. Ntaganda stated, on several occasions, that UPC/FPLC members could appropriate any goods encountered (count 11). In respect of the pillage of Mongbwalu church, Mr. Ntaganda added that this building could be destroyed, if necessary (count 17). The Chamber further finds that Mr. Ntaganda acted with dolus directus in the second degree in relation to the crime of destroying the property of an adversary (count 18). He was aware that the commission of said crime would be the almost inevitable outcome of the implementation of the common plan in respect of the First Attack, considering (i) his aforementioned orders; and (ii) the use of heavy weapons by UPC/FPLC troops under his command. 129. In relation to the Second Attack, the Chamber finds that Mr. Ntaganda acted with dolus directus in the second degree in respect of the crimes set forth in counts 2, 3, 5, 8, 11, 13 and 18. He was aware that their commission would be the almost inevitable outcome of the implementation of the common plan. As described previously, Mr. Ntaganda took part in preparing and controlling the Second Attack and his criminal instructions issued at the Mabanga parade continued to apply. However, the Chamber is of the view that Mr. Ntaganda does not fulfil the requisite subjective elements pertaining to the war crime set forth in count 17 in respect of the Second Attack, since it has not been established that he intended buildings protected under article 8(2)(e)(iv) of the Statute to be the object of an attack.

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130 Mr. Ntaganda was also aware of the factual circumstances that established the status of these persons as civilians taking no active part in hostilities in the First Attack and the Second Attack (count 2); his aforementioned criminal orders were either directed expressly against the Lendu, or failed to distinguish between those who were taking a direct part in hostilities and those who were not. Moreover, since Mr. Ntaganda was aware of the factual circumstances that established the lawfulness of the presence of the civilians at the locations covered by the First Attack and the Second Attack, the Chamber also finds that he knew that the displacement of civilians was neither justified by the security of the civilians nor by military necessity (count 13). In relation to the First Attack, Mr. Ntaganda also knew of the nature and purpose of the Mongbwalu church as a building dedicated to religion since he had been at this location in person (count 17). In addition, with regard to the First Attack and Second Attack, Mr. Ntaganda was also aware (i) that the destroyed property belonged to the Lendu; (ii) of the factual circumstances establishing the status of the property as protected under the law of armed conflict; and (iii) that the destruction thereof was not required by military necessity (count 18). This conclusion is based on evidence establishing that (i) crimes were committed against the Lendu in particular; (ii) the destruction of property was massive and indiscriminate; and (iii) Mr. Ntaganda was physically present during the First Attack and remained in close communication with UPC/FPLC troops during the Second Attack.

131 The Chamber now turns to the specific subjective elements related to counts 3, 11 and 17. It is established by the evidence presented that Mr. Ntaganda intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack (count 3); his aforementioned criminal orders were either directed expressly against the Lendu or failed to distinguish between those who were taking a direct part in hostilities and those who were not. Concerning the crime of pillaging (count 11), the Chamber specifies that

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Mr. Ntaganda possessed the specific intent to deprive the rightful owner of his or her property and to appropriate it for private or personal use. His use of the expression “piga na kuchaji” specifically concerns the appropriation of goods as it means to fight and pillage everything. Moreover, as this expression extends to any goods encountered, it necessarily precludes appropriations limited to those justified by military necessity. Finally, Mr. Ntaganda intended the Mongbwalu church to be the object of the attack (count 17), as reflected by his instruction to a subordinate to destroy the church, if necessary.

Mens Rea for War Crimes Against UPC/FPLC Child Soldiers

132 On the basis of the evidence and the reasoning developed below, the Chamber finds that Mr. Ntaganda was aware of the factual circumstances that established the existence of the Non-International Armed Conflict and that he fulfils the other subjective elements concerning the crimes under counts 6, 9, 14, 15 and 16, as specified below. 133. Mr. Ntaganda acted with dolus directus in the first degree in relation to the crimes contained in counts 14 to 16, in view of the continued exercise of his 554 555 responsibilities concerning recruitment, training and deployment of troops in the 556 557 UPC/FPLC, which had children under the age of 15 years in its ranks. Moreover, Mr. Ntaganda, at least, should have known that these children were under the age of 15 years, considering that he personally visited training camps where children manifestly below this age were trained. 134. Furthermore, Mr. Ntaganda acted with dolus directus in the second degree concerning the war crimes of rape and sexual slavery of UPC/FPLC child soldiers (counts 6 and 9). He was aware that the commission of these crimes would be the almost inevitable outcome of the implementation of the common plan, since girls below the age of 15 years were placed in UPC/FPLC camps together with male commanders and fighters, despite the fact that Mr. Ntaganda was in possession of

No. ICC-01/04-02/06 49 9 June 2014 information of sexual violence committed against young girls by UPC/FPLC members.

Remaining Subjective Elements for Indirect Co-Perpetration

135 Lastly, the Chamber finds that the evidence establishes that the following two subjective elements for indirect co-perpetration have also been met: Mr. Ntaganda was aware and accepted that implementing the common plan would result in the fulfilment of the material elements of the crimes. As established previously, Mr. Ntaganda: (i) adopted the common plan together with other UPC/FPLC members; (ii) regularly met those persons in the course of the implementation of the common plan; and (iii) acted with the requisite mens rea for the crimes by which the common plan was to be achieved to the extent specified above. Moreover, based on Mr. Ntaganda’s high-ranking position in the UPC/FPLC and his dominant role as set out previously, he was also aware of the factual circumstances enabling him to exercise joint control over the commission of the crimes through other persons.

B. Article 25(3)(a) of the Statute – Direct Perpetration

136 The Chamber recalls that, in order to make a finding on Mr. Ntaganda’s criminal responsibility based on the mode of liability of direct perpetration, it must be established that he physically carried out an objective element of the offence and that he acted with: (i) intent and knowledge pursuant to article 30 of the Statute, unless another subjective element is provided in the Statute or the Elements of Crimes; and (ii) a specific subjective element (dolus specialis) when required by a particular crime. 137. Based on the evidence presented, the Chamber finds that, along with his responsibility as an indirect co-perpetrator, Mr. Ntaganda bears criminal responsibility as a direct perpetrator under article 25(3)(a) of the Statute for the

No. ICC-01/04-02/06 50 9 June 2014 crimes set forth in: (i) counts 1, 2, 3, 10, 11 and 17 in relation to particular instances in the First Attack; and (ii) counts 15 and 16 in relation to particular instances in the Non-International Armed Conflict. Moreover, as established previously, Mr. Ntaganda: (i) knew that his conduct was part of the widespread or systematic attack against the non-Hema civilian population or intended his conduct to be part thereof; and (ii) was aware of the factual circumstances that established the existence of the Non-International Armed Conflict. However, the Chamber does not find substantial grounds to believe that Mr. Ntaganda bears criminal responsibility as a direct perpetrator for the crimes contained in counts 1 to 3, 10 to 13, 17 and 18 in respect of the Second Attack. 138. In relation to the First Attack, Mr. Ntaganda directly perpetrated murder (counts 1 and 2). He shot priest Boniface Bwanalonga several times in the head with a revolver behind his apartment in Kilo-Moto. The Chamber finds that Mr. Ntaganda acted with dolus directus in the first degree, considering that the use of a firearm against an unarmed person establishes that he meant to cause his death. In addition, with respect to count 2, Mr. Ntaganda was aware of the factual circumstances establishing the status of the priest as a civilian taking no active part in hostilities, as the priest was: (i) taken by Mr. Ntaganda from Mongbwalu parish; (ii) dressed in civilian attire; and (iii) well-known in Mongbwalu. 139. In addition, Mr. Ntaganda intentionally directed attacks against the civilian population as such or against civilians not taking direct part in hostilities in the course of the First Attack (count 3). During the UPC/FPLC advance on Sayo, many bodies were found in houses “because BOSCO [Ntaganda] had deployed his artillery” and he was “shooting at everything that was moving”. The Chamber finds that Mr. Ntaganda acted with dolus directus in the first degree and intended the civilian population as such to be the object of the attack, since he stated that everyone in Mongbwalu was to be considered an enemy and he subsequently put these words into effect by employing heavy weaponry without distinction.

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140 Mr. Ntaganda also directly perpetrated pillaging during the First Attack (count 11). He appropriated: (i) a Land Cruiser jeep from Mongbwalu parish and other 575 576 items; (ii) medical equipment and medication from a hospital in Mongbwalu; (iii) audio and video equipment, seen at his residence in Mongbwalu; and items from the church in Sayo. The Chamber finds that, in addition to dolus directus in the first degree, Mr. Ntaganda “specifically intended to deprive the owner of the property and to appropriate it for private or personal use”. In this regard, the evidence demonstrates that Mr. Ntaganda: (i) at a UPC/FPLC parade in Mabanga prior to the First Attack, used the expression “piga na kuchaji”, which specifically relates to the appropriation of property and precludes appropriations limited to military necessity because of its broad scope; and (ii) arranged for appropriated property to be transported from Mongbwalu to Bunia by aircraft. 141. In respect of count 17, the evidence pertaining to the pillaging of the parish and the hospital in Mongbwalu and the church in Sayo establishes, at the same time, that Mr. Ntaganda acted with dolus directus in the first degree. He specifically singled out these buildings to be targeted and subsequently attacked them. Moreover, as he had been at these places in person, Mr. Ntaganda knew of the status of these objects as buildings dedicated to religion and a hospital. 142. As to count 10, the evidence reveals that Mr. Ntaganda directly committed the crime of persecution. By way of his direct perpetration of the aforementioned crimes in the First Attack, in conjunction with his overtly expressed hostility towards the Lendu, Mr. Ntaganda targeted the non-Hema group as such, and particularly the Lendu group, based on ethnic grounds. 143. The Chamber further finds that Mr. Ntaganda is a direct perpetrator of the crimes of enlisting and using children under the age of 15 years to participate actively in hostilities (counts 15 and 16). Several children under the age of 15 years from Bunia “were recruited by the UPC and, more precisely, by Bosco

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NTAGANDA”. These children went on to attend training at Mandro camp and took part in the First Attack. In addition, Mr. Ntaganda used children under the age of 15 years to participate actively in hostilities. Children below this age were 587 588 under his direct command or in his escort. He used some of these children, for instance, to guard his places of residence and in combat operations, such as in: 590 591 592 (i) Zumbe in October 2002; (ii) the First Attack; and (iii) Bunia in March 2003. Mr. Ntaganda acted with dolus directus in the first degree, in view of his persistent conduct over a prolonged period of time. In addition, Mr. Ntaganda, at least, should have known that these children were under the age of 15 years, since he interacted with them closely in his personal escort. 144. Finally, the Chamber finds that there are no substantial grounds to believe that Mr. Ntaganda can be held responsible as a direct perpetrator for any of the remaining crimes that he is charged with. The Prosecutor has not charged Mr. Ntaganda as a direct perpetrator of any of the crimes set forth in counts 4 to 9. Furthermore, the Prosecutor has not brought forward sufficient evidence establishing that Mr. Ntaganda carried out any of the objective elements of the crimes set forth in (i) counts 12, 13 and 18 in respect of the First Attack; and (ii) count 14 in respect of the Non-International Armed Conflict.

C. Article 25(3)(b) of the Statute – Ordering

145 The Chamber recalls that, in order to make a finding on Mr. Ntaganda’s criminal responsibility based on the mode of liability of ordering, the following objective and subjective elements must be fulfilled: (a) the person is in a position of authority, (b) the person instructs another person in any form to either: (i) commit a crime which in fact occurs or is attempted or (ii) perform an act or omission in the execution of which a crime is carried out, (c) the order had a direct effect on the commission or attempted commission of the crime, and (d) the person is at least aware that the crime will be committed in the ordinary course of events as a consequence of the execution or implementation of the order.

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146 Based on the evidence presented, the Chamber finds that, in the alternative, Mr. Ntaganda ordered, pursuant to article 25(3)(b) of the Statute, the crimes set forth in: (i) counts 1 to 5, 10 to 13, and 17 during the First Attack; (ii) counts 1 to 5, 7, 8, 10, and 11 during the Second Attack; and (iii) count 16 during the Non-International Armed Conflict. 147. The Chamber finds that the first element pertaining to this mode of liability has been fulfilled. As described previously, Mr. Ntaganda occupied a high-ranking position in the UPC/FPLC, held significant responsibility, and ensured that breaches of the disciplinary rules of the UPC/FPLC were punished. Moreover, Mr. Ntaganda’s position of authority also extended to Hema civilians, since he armed such persons and ordered them to engage in hostilities. 148. The Chamber further finds that the second element has also been met. As stated previously, in connection with the First Attack, Mr. Ntaganda ordered UPC/FPLC members to commit: (i) murder (counts 1 and 2); (ii) attacks against the civilian population as such or individual civilians not taking direct part in hostilities 602 603 604 (count 3); (iii) rape of civilians (counts 4 and 5); (iv) pillaging (count 11); (v) forcible transfer of population and displacement of the civilian population (counts 12 and 13); and (vi) attacks against buildings protected under article 8(2)(e)(iv) of the Statute (count 17). Moreover, during the First Attack, Mr. Ntaganda ordered young Hema civilians to commit murder (counts 1 and 2) and forcible transfer of population and displacement of the civilian population (counts 12 and 13). Considering that most of these orders were specifically directed against non-Hema civilians, Mr. Ntaganda also ordered persecution (count 10). Furthermore, the orders issued by Mr. Ntaganda at the Mabanga parade to shoot everybody and appropriate everything, including women, also applied to the Second Attack. Thus, the Chamber finds that, in respect of the Second Attack, Mr. Ntaganda ordered UPC/FPLC members to commit: (i) murder (counts 1 and 2); (ii) intentionally directing attacks against the civilian population as such or against

No. ICC-01/04-02/06 54 9 June 2014 individual civilians not taking direct part in hostilities (count 3); (iii) rape and sexual slavery of civilians (counts 4, 5, 7 and 8); (v) persecution (count 10); and (iv) pillaging (count 11). In addition, in the course of the Non-International Armed Conflict, Mr. Ntaganda ordered UPC/FPLC members to use children under the age of 15 years to participate actively in hostilities (count 16). 149. The Chamber further concludes that the third element has also been established. In this regard, the Chamber recalls that, within the hierarchical structure of the UPC/FPLC, Mr. Ntaganda specifically required compliance with his orders and even went as far as ordering the execution of disobedient subordinates or even executing them himself. The fact that UPC/FPLC members committed 615 616 these crimes and also attempted to commit murder further supports this conclusion, since it establishes that Mr. Ntaganda’s orders were acted upon. 150. The Chamber finds that the fourth element has also been satisfied. Mr. Ntaganda repeatedly and unequivocally stated that the objective of his orders was the commission of the crimes described above. 151. Furthermore, the Chamber considers that the findings in relation to this mode of liability also concern the attempted acts of murder, as described previously in the present decision. In addition, the Chamber finds that the instances of attempted murder resulted from Mr. Ntaganda’s orders and that the crime of murder did not occur because of circumstances independent of the perpetrator’s intentions, as stipulated in article 25(3)(f) of the Statute. 152. However, the Chamber notes that the Prosecutor has not provided sufficient evidence indicating that Mr. Ntaganda ordered others either to commit the following crimes or to perform acts in the course of which these crimes were committed: 619 620 621 622 (i) count 18 during the First Attack; (ii) counts 12-13, 17 and 18 during the 623 624 Second Attack; and (iii) counts 6 and 9, and 14-15 during the Non-International Armed Conflict.

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D. Article 25(3)(b) of the Statute – Inducing

153 The Chamber recalls that, in order to make a finding on Mr. Ntaganda’s criminal responsibility for the mode of liability of inducing, the following objective and subjective elements must be fulfilled: (a) the person exerts influence over another person to either commit a crime which in fact occurs or is attempted or to perform an act or omission as a result of which a crime is carried out; (b) the inducement has a direct effect on the commission or attempted commission of the crime; and (c) the person is at least aware that the crimes will be committed in the ordinary course of events as a consequence of the realisation of the act or omission. 154. Based on the evidence presented, the Chamber finds that, in the alternative, pursuant to article 25(3)(b) of the Statute, Mr. Ntaganda induced the commission and/or the attempted commission of the crimes specified in the section on the mode of liability of ordering, as described below. 155. The Chamber finds that the first element pertaining to the mode of liability of inducing has been fulfilled. More specifically, the Chamber considers that the evidence relevant to the orders issued by Mr. Ntaganda to UPC/FPLC members and/or Hema civilians to commit crimes shows, alternatively, that Mr. Ntaganda 626 627 exerted influence over them to commit these crimes, which in fact occurred and, in the case of murder, were also attempted. This conclusion is further supported by the fact that Mr. Ntaganda created an environment in which crimes against the Lendu in particular were encouraged or officially approved. The evidence establishes that, in his capacity as a high-ranking UPC/FPLC official, Mr. Ntaganda: (i) physically perpetrated crimes; (ii) openly used derogatory language against the Lendu; and (iii) failed to take all necessary and reasonable measures to prevent and/or repress such crimes, as will be addressed below.

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156 On the basis of its previous findings in relation to the mode of liability of ordering, the Chamber also finds that the remaining two elements of the mode of liability of inducing have also been established. 157. Finally, the Chamber considers that the findings in relation to this mode of liability also concern the attempted acts of murder, as described previously in the present decision. In addition, the Chamber finds that the instances of attempted murder resulted from Mr. Ntaganda’s inducement and that the crime of murder did not occur because of circumstances independent of the perpetrator’s intentions, as stipulated in article 25(3)(f) of the Statute.

E. Article 25(3)(d) of the Statute – Contributing in any other way

158 The Chamber recalls that, in order to make a finding on Mr. Ntaganda’s criminal responsibility based on the mode of liability set forth in article 25(3)(d) of the Statute, the following objective and subjective elements must be fulfilled: (a) a crime within the jurisdiction of the Court was attempted or committed; (b) a group of persons acting with a common purpose attempted to commit or committed this crime; (c) the individual contributed to the crime, in any way other than those set out in article 25(3)(a) to (c) of the Statute; (d) the said contribution was intentional; and (e) was made either (i) with the aim of furthering the criminal activity or criminal purpose of the group; or (ii) in the knowledge of the intention of the group to commit the crime. 159. On the basis of the evidence presented, the Chamber finds that, in the alternative, Mr. Ntaganda is criminally responsible pursuant to article 25(3)(d) of the Statute for the crimes set forth in: (i) counts 1 to 5, 10 to 13, 17 and 18 during the First Attack; (ii) counts 1 to 5, 7, 8, 10 to 13, 17 and 18 during the Second Attack; and (iii) counts 6, 9 and 14 to 16, during the Non-International Armed Conflict.

160 The Chamber recalls its previous findings establishing that, during the period relevant to the charges, the crimes set out in counts 1 to 18 have been committed and/or attempted by UPC/FPLC forces and Hema civilians. Moreover, the

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Chamber reiterates that the common plan agreed upon by various UPC/FPLC members to assume military and political control over Ituri was to be achieved through the commission of the crimes charged. 161. Further, the Chamber recalls its findings revealing that Mr. Ntaganda: (i) played an overall coordinating role before and during the First Attack (counts 1-5, 10-13 and 17-18); (ii) took part in devising the Second Attack and controlled the fighting from a distance (counts 1-5, 7-8, 10-13 and 17-18); and (iii) was responsible for the recruitment, training and deployment of troops within the UPC/FPLC, which had children under the age of 15 years within its ranks, and where girls under the age of 15 years were placed in camps under the authority of male UPC/FPLC commanders (counts 6, 9 and 14-16). 162. Moreover, the Chamber concludes that Mr. Ntaganda’s contribution was intentional and that it was made, at least, in the knowledge of the intention of the group to commit the crimes set forth in counts 1 to 18, in view of the nature of the contribution provided by Mr. Ntaganda to said crimes and his continuous communication with his subordinates and persons from the group acting with a common purpose during the period relevant to the charges. 163. Finally, the Chamber clarifies that the findings in relation to this mode of liability also concern the acts of murder that were attempted, as described previously. The Chamber further specifies that its findings concerning the instances of attempted murder demonstrate that they resulted from the implementation of the common plan and that, in accordance with article 25(3)(f) of the Statute, the crime of murder did not occur because of circumstances independent of the perpetrator’s intentions.

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F. Article 28(a) of the Statute – Acting as a Military Commander

164 The Chamber recalls that, in order to make a finding on Mr. Ntaganda’s criminal responsibility based on the mode of liability set forth in article 28(a) of the Statute, the following objective and subjective elements must be fulfilled: (a) the suspect must be either a military commander or a person effectively acting as such; (b) the suspect must have effective command and control, or effective authority and control over the forces (subordinates) who committed one or more of the crimes set out in articles 6 to 8 of the Statute; (c) the crimes committed by the forces (subordinates) resulted from the suspect’s failure to exercise control properly over them; (d) the suspect either knew or, owing to the circumstances at the time, should have known that the forces (subordinates) were committing or about to commit one or more of the crimes set out in article 6 to 8 of the Statute; and (e) the suspect failed to take the necessary and reasonable measures within his or her power to prevent or repress the commission of such crime(s) or failed to submit the matter to the competent authorities for investigation and prosecution. 165. Based on the evidence presented, the Chamber finds that, in the alternative, Mr. Ntaganda is criminally responsible pursuant to article 28(a) of the Statute for the crimes set forth in: (i) counts 1 to 5, 10 to 13, 17 and 18 during the First Attack; (ii) counts 1 to 5, 7, 8, 10 to 13, 17 and 18 during the Second Attack; and (iii) counts 6, 9 and 14 to 16, during the Non-International Armed Conflict. 166. The Chamber concludes that, taken together, the first two elements have been satisfied. As stated previously, Mr. Ntaganda was a military commander in the UPC/FPLC and had effective command and control over the UPC/FPLC troops during the period relevant to the charges. The Chamber further specifies that, contrary to the submissions presented by the Defence, Mr. Ntaganda’s command and control also extended over the civilians within the UPC/FPLC, considering that he possessed the capacity to order them to engage in hostilities. Mr. Ntaganda described certain of these civilians as “our combatants” and, in addition, he armed and instructed some of them to kill and oust the Lendu.

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167 The Chamber further finds that the fourth element has also been met. For the reasons set out below, the evidence reveals that Mr. Ntaganda knew that UPC/FPLC members and/or Hema civilians were committing or about to commit the crimes specified by the Chamber previously. 168. In respect of the crimes committed during the First Attack and the Second Attack, the Chamber underlines that they were perpetrated over the course of several days, covered an extensive geographical area, and involved numerous victims. Moreover, the evidence establishes that Mr. Ntaganda was physically present and commanded the UPC/FPLC troops in the First Attack. During the Second Attack, he controlled the fighting from Bunia, communicated with the troops on the 655 656 ground, and informed his superiors of the progress of the operation. 169. In addition, Mr. Ntaganda directly observed certain crimes committed by his subordinates or was informed thereof. Mr. Ntaganda knew of “tous les viols, assassinats, les massacres, et tout ça” committed by UPC/FPLC members. For example, during the First Attack, Mr. Ntaganda: (i) was present when UPC/FPLC troops shot a young girl who was fleeing and fired a heavy weapon at houses in Sayo; (ii) saw a civilian being removed from Sayo church and executed by his own bodyguards; and (iii) ordered pillaging by UPC/FPLC members to be halted after Mongbwalu was taken. In relation to the Second Attack, he became aware of the massacre committed under the direction of Mr. Mulenda in Kobu. Moreover, in February 2003, Mr. Ntaganda ordered that the “wives” of UPC/FPLC members had to leave all UPC/FPLC camps. 170. Further, with regard to the crimes of conscripting, enlisting and using children under the age of 15 years to participate actively in hostilities, as well as rape and sexual slavery of UPC/FPLC child soldiers, the Chamber reiterates that they continued over several months against a large number of victims. The UPC/FPLC also had an entire unit made up of children, some of whom were under the age of

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15 years. In addition, Mr. Ntaganda interacted closely with other senior UPC/FPLC officials who had children below this age in their escorts. The evidence further reveals that Mr. Ntaganda: (i) “believed that there were children in the UPC 666 667 movement”; (ii) was aware of the recruitment process of the UPC/FPLC; and (iii) regularly visited training camps, where, inter alia, children under the age of 15 years were trained. Furthermore, Mr. Ntaganda knew of sexual violence against UPC/FPLC child soldiers and he was, in particular, aware of the rape of a 12 or 13year-old girl from his escort by his chief of security. 171. Finally, the Chamber also finds that, considered collectively, the third and fifth elements have been established. According to the evidence, Mr. Ntaganda either failed to react to crimes or took inadequate measures, in spite of his influential position in the UPC/FPLC and his demonstrated ability to adopt far-reaching measures. 172. Mr. Ntaganda did not: (i) reprimand anyone for attacks against Lendu civilians during UPC/FPLC operations; (ii) act to prevent any crimes against Lendu civilians through, for instance, orders not to harm them; or (iii) investigate crimes committed 673 674 675 against civilians. More specifically, in the First Attack, acts of rape and killing went unpunished and Mr. Ntaganda did not prevent the killing of prisoners. In addition, with regard to the Second Attack, not a single subordinate, including Mr. Mulenda, was punished for the Kobu massacre. Furthermore, in respect of the crimes of conscripting, enlisting and using children under the age of 15 years to participate actively in hostilities, as well as rape and sexual slavery of UPC/FPLC child soldiers, Mr. Ntaganda: (i) did not order the demobilisation of children under the age of 15 years; and (ii) protected his chief of security after the latter had raped a 12 or 13 year old girl from his own escort. 173. The Chamber further finds that the limited measures taken by Mr. Ntaganda fall short of necessary and reasonable measures within his power. Disciplinary

No. ICC-01/04-02/06 61 9 June 2014 measures were adopted to redress the failure of UPC/FPLC members to comply with 681 682 orders or because some of them were suspected enemies and they were, therefore, not taken in response to the crimes charged. In particular, whilst Mr. Ntaganda ordered the arrest of several UPC/FPLC members suspected of attempted rape on 21 December 2002, he subsequently informed one of these persons that he was promoted on 11 February 2003, which indicates, at least, that this person was not subject to punishment. In addition, despite Mr. Ntaganda’s order to halt pillaging in the First Attack, high-ranking UPC/FPLC commanders continued to pillage and no one was in fact punished for such conduct. 174. The aforementioned failures of Mr. Ntaganda increased the risk of the commission of crimes by UPC/FPLC members during the time-frame relevant to the 687 688 charges. As a powerful military commander, he omitted to act in response to serious crimes against non-Hema civilians, which rendered the disciplinary system of the UPC/FPLC or any other measures ineffective in relation to such conduct. 175. Finally, the Chamber considers that the findings in relation to this mode of liability also concern the attempted acts of murder, as described previously in the present decision. In addition, the Chamber finds that the instances of attempted murder resulted from the acts of Mr. Ntaganda’s subordinates and that the crime of murder did not occur because of circumstances independent of the perpetrators’ intentions, as stipulated in article 25(3)(f) of the Statute.

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FOR THESE REASONS THE CHAMBER HEREBY:

a) decides that it has jurisdiction over the present case and determines that the case is admissible; and b) decides to confirm, pursuant to article 61(7) of the Statute, the charges presented by the Prosecutor against Bosco Ntaganda to the extent specified in paragraphs 12, 31, 36, 74 and 97 of the present decision and to commit Bosco Ntaganda to a Trial Chamber for trial on the charges as confirmed.

Done in both English and French, the English version being authoritative.

_____________________________

Judge Ekaterina Trendafilova

Presiding Judge

_____________________________ _____________________________

Judge Hans-Peter Kaul Judge Cuno Tarfusser

Judge Judge

Dated this Monday, 9 June 2014 At The Hague, The Netherlands

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Pre-Trial Chamber I, “Decision on the Prosecution Application for a Warrant of Arrest”, 22 August 2006, ICC-01/04-02/06-1-US-Exp-tEN; a redacted version is also available, see Pre-Trial Chamber I, “Decision on the Prosecution Application for a Warrant of Arrest”, 6 March 2007, ICC-01/04-02/06-1- Red-tENG. A warrant of arrest was issued alongside this decision, see Pre-Trial Chamber I, “Mandat d’arrêt”, 22 August 2006, ICC-01/04-02/06-2; and “Warrant of Arrest”, 22 August 2006, ICC-01/04- 02/06-2-Anx-tENG. The warrant of arrest was initially issued under seal. On 28 April 2008, Pre-Trial Chamber I decided to unseal the warrant of arrest, see “Decision to Unseal the Warrant of Arrest against Bosco Ntaganda”, ICC-01/04-02/06-18. A redacted version of the initially under seal warrant of arrest had also been issued by Pre-Trial Chamber I at the time. The redacted warrant of arrest was made public upon instruction of Pre-Trial Chamber I dated 29 September 2010, see “Mandat d’arrêt – Corrigendum”, 7 March 2007, ICC-01/04-02/06-2-Corr-Red; an English version is also available, see “Warrant of arrest – Corrigendum”, ICC-01/04-02/06-2-Corr-tENG-Red. Pre-Trial Chamber II, “Decision on the Prosecutor’s Application under Article 58”, 13 July 2012, ICC- 01/04-02/06-36-Conf-Exp; a public redacted version is also available, see Pre-Trial Chamber II, “Decision on the Prosecutor’s Application under Article 58”, 13 July 2012, ICC-01/04-02/06-36-Red. Pre-Trial Chamber II, “Decision on Setting the Date for the Initial Appearance and Related Issues”, 22 March 2013, ICC-01/04-02/06-41, para. 7. Pre-Trial Chamber II, Transcript of Hearing, 26 March 2013, ICC-01/04-02/06-T-2-ENG. DCC, ICC-01/04-02/06-203-AnxA. ICC-01/04-02/06-203-AnxB. Pre-Trial Chamber II, “Decision on the Defence Urgent Request of 14 January 2014”, 14 January 2014, ICC-01/04-02/06-209. ICC-01/04-02/06-217-Conf-AnxC. ICC-01/04-02/06-227-AnxA. ICC-01/04-02/06-227-Conf-AnxB. ICC-01/04-02/06-253 with one public and one confidential annex. Pre-Trial Chamber II, “Decision on the ‘Prosecution’s Urgent Request to Postpone the Date of the Confirmation Hearing’ and Setting a New Calendar for the Disclosure of Evidence between the Parties”, 17 June 2013, ICC-01/04-02/06-73, p. 19; Pre-Trial Chamber II, Transcript of Hearing, 10 February 2014, ICC-01/04-02/06-T-7-ENG; Pre-Trial Chamber II, Transcript of Hearing, 10 February 2014, ICC-01/04-02/06-T-7Bis-ENG; Pre-Trial Chamber II, Transcript of Hearing, 11 February 2014, ICC-01/04-02/06-T-8-Red-ENG; Pre-Trial Chamber II, Transcript of Hearing, 11 February 2014, ICC- 01/04-02/06-T-8Bis-Red-ENG; Pre-Trial Chamber II, Transcript of Hearing, 12 February 2014, ICC- 01/04-02/06-T-9-Red-ENG; Pre-Trial Chamber II, Transcript of Hearing, 13 February 2014, ICC-01/04- 02/06-T-10-Red-ENG; Pre-Trial Chamber II, Transcript of Hearing, 14 February 2014, ICC-01/04-02/06- T-11-ENG. See also the presentations of evidence of the parties at the Hearing as filed in the case record, see ICC-01/04-02/06-258 with fifteen public annexes and four confidential annexes; ICC-01/04- 02/06-263 with two public annexes and four confidential annexes. ICC-01/04-02/06-276-Conf with confidential annexes A, B and C. A public redacted version was field on 24 March 2014, see ICC-01/04-02/06-276-Red. ICC-01/04-02/06-273; ICC-01/04-02/06-275. ICC-01/04-02/06-292-Conf-Exp. A confidential redacted version is also available, see ICC-01/04- 02/06-292-Conf-Red; a public redacted version of said document was filed on 14 April 2014, see ICC- 01/04-02/06-292-Red2. For the threshold of substantial grounds to believe, see, for example, Appeals Chamber, “Judgment on the appeal of the Prosecutor against the ‘Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’”, 3 February 2010, ICC-02/05-01/09-73, para. 30; Pre-Trial Chamber II, “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, 23 January 2012, ICC-01/09-02/11-382-Red, para. 52; Pre-Trial Chamber I,

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”Decision adjourning the hearing on the confirmation of charges pursuant to article 61(7)(c)(i) of the Rome Statute”, 3 June 2013, ICC-02/11-01/11-432, para. 17. Pre-Trial Chamber I, “Decision on the confirmation of charges”, 29 January 2007, ICC-01/04-01/06- 803-tENG, para. 39. See, for example, Pre-Trial Chamber II, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo”, 15 June 2009, ICC- 01/05-01/08-424, para. 29; Pre-Trial Chamber II, “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, 23 January 2012, ICC-01/09-02/11-382-Red, para. 52; Pre- Trial Chamber I, ”Decision adjourning the hearing on the confirmation of charges pursuant to article 61(7)(c)(i) of the Rome Statute”, 3 June 2013, ICC-02/11-01/11-432, para. 17. For the relevant evidentiary principles, see, for example, Pre-Trial Chamber I, “Decision on the confirmation of charges”, 29 January 2007, ICC-01/04-01/06-803-tENG; Pre-Trial Chamber I, “Decision on the confirmation of charges”, 30 September 2008, ICC-01/04-01/07-717; Pre-Trial Chamber II, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo”, 15 June 2009, ICC-01/05-01/08-424, paras 45-62; Pre-Trial Chamber II, “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, 23 January 2012, ICC-01/09-02/11-382-Red, paras 66-92; Appeals Chamber, “Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I of 16 December 2011 entitled ‘Decision on the confirmation of charges’”, 30 May 2012, ICC-01/04-01/10-514; Appeals Chamber, “Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I of 3 June 2013 entitled ‘Decision adjourning the hearing on the confirmation of charges pursuant to article 61(7)(c)(i) of the Rome Statute’”, 16 December 2013, ICC-02/11-01/11-572. For the purposes of the decision, the Chamber has used the acronyms UPC, FPLC and UPC/FPLC interchangeably, thus referring to one and the same entity. See paragraph 3, third sentence, of the Introduction to Crimes against Humanity in the Elements of Crimes and related footnote 6. For the notion of civilians or civilian population, see, for example, Pre-Trial Chamber II, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo”, 15 June 2009, ICC-01/05-01/08-424, paras 77-78; Pre-Trial Chamber I, “Decision on the confirmation of charges”, 30 September 2008, ICC-01/04-01/07-717, para. 399. The Chamber points out that the evidence refers to the non-Hema targeted population either by identifying the precise ethnic groups that were targeted (such as Lendu, Bira, Ngiti) or by using the expression non-originaires, namely persons who were perceived to be historically not from the territory of Ituri. For the notion of widespread or systematic attack, see, for example, Pre-Trial Chamber II, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo”, 15 June 2009, ICC-01/05-01/08-424, para. 83; Pre-Trial Chamber II, “Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya”, 31 March 2010, ICC-01/09-19-Corr, paras 95-96; Pre-Trial Chamber I, “Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir”, 4 March 2009, ICC-02/05-01/09-3, para. 81; Pre-Trial Chamber I, “Decision on the confirmation of charges”, 30 September 2008, ICC-01/04-01/07-717, paras 394-398; Pre-Trial Chamber II, “Corrigendum to ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire’”, 15 November 2011, ICC-02/11-14- Corr, paras 53-54. The Chamber clarifies that, in this section of the decision it makes findings on facts for the purposes of establishing the existence of an organization within the meaning of article 7 of the Statute. “Union Des Patriotes Congolais, UPC, Statuts”, 15 September 2000, EVD-PT-OTP-01543, at 0039, at 0042-0046; Transcript of testimony of witness P-0038, EVD-PT-OTP-06181, at 4739; “Examens de test UPC/RP”, 9 December 2002, EVD-PT-OTP-01690, at 0704.

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“Union Des Patriotes Congolais, UPC, Statuts”, 15 September 2000, EVD-PT-OTP-01543, at 0039; “Examens de test UPC/RP”, 9 December 2002, EVD-PT-OTP-01690, at 0704. Trial Chamber I, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06- 2842, paras 81, 1115-1116; “UPC letter transmitting a UPC decree”, 9 June 2003, EVD-PT-OTP-00958; “UPC decree”, 2 December 2002, EVD-PT-OTP-00938; “UPC decree”, 3 September 2002, EVD-PT- OTP-02544, at 0055-0056. Trial Chamber I, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06- 2842, para. 1115; Transcript of testimony of witness P-0016, EVD-PT-OTP-06139, at 1348; Statement of witness P-0005, EVD-PT-OTP-04084, at 0087, para. 142; “Examens de test UPC/RP”, 9 December 2002, EVD-PT-OTP-01690, at 0704. Trial Chamber I, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06- 2842, para. 1115. Trial Chamber I, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06- 2842, para. 1115; Transcript of testimony of witness P-0016, EVD-PT-OTP-06141, at 1450; Statement of witness P-0005, EVD-PT-OTP-04084, at 0087, para. 142. Trial Chamber I, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06- 2842, para. 1172; Transcript of interview of witness P-0055, EVD-PT-OTP-04623, at 0337; Transcript of testimony of witness P-0012, EVD-PT-OTP-06125, at 0118; Transcript of testimony of witness P-0016, EVD-PT-OTP-06141, at 1451; Transcript of testimony of witness P-0017, EVD-PT-OTP-06147, at 1941; Diagram by witness P-0005, “Structure et Organisation de l’UPC”, EVD-PT-OTP-04085; Statement of witness P-0005, EVD-PT-OTP-04084, at 0088, para. 151. Trial Chamber I, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06- 2842, para. 1172; Transcript of interview of witness P-0055, EVD-PT-OTP-04623, at 0337 and EVD-PT- OTP-06506, at 1063-1064; Transcript of testimony of witness P-0012, EVD-PT-OTP-06125, at 0118; Diagram by witness P-0005, “Structure et Organisation de l’UPC”, EVD-PT-OTP-04085, at 0126; Statement of witness P-0005, EVD-PT-OTP-04084, at 0088, para. 151; Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0092. See UPC, “Aide Mémoire à l’intention du Sir Ketumile Masire Facilitateur Neutre du Dialogue Intercongolais”, 22 October 2002, EVD-PT-OTP-00414, at 0271; UPC, “Déclaration officielle de o l’UPC/RP N UPC-RP/05/2002 à propos de la tenue du dialogue inter congolais global et inclusif”, 22 October 2002, EVD-PT-OTP-03785, at 0452. Statement of witness P-0016, EVD-PT-OTP-02701, at 0427, para. 34; Transcript of testimony of witness D-0037, EVD-PT-D18-00004, at 0213; Transcript of testimony of witness P-0014, EVD-PT-OTP- 06129, at 0490 and 0493, EVD-PT-OTP-06130, at 0567-0568. Transcript of testimony of witness P-0038, EVD-PT-OTP-06181, at 4734-4735; Transcript of interview of witness P-0017, EVD-PT-OTP-04144, at 0079-0084; Transcript of interview of witness P-0055, EVD- PT-OTP-04627, at 0443-0446; Diagram by witness P-0005, “Armée de l’UPC/FPLC”, EVD-PT-OTP- 04088; Statement of witness P-0005, EVD-PT-OTP-04084, at 0092, para. 184; Statement of witness P- 0290, EVD-PT-OTP-04028, at 0314, para. 47; Logbook messages, EVD-PT-OTP-03975, at 1076 and 1078. Transcript of interview of witness P-0017, EVD-PT-OTP-04133, at 1542 and EVD-PT-OTP-04144, at 0079-0084; Statement of witness P-0016, EVD-PT-OTP-02701, at 0435-0436, para. 76; Transcript of interview of witness P-0055, EVD-PT-OTP-04627, at 0440-0442, at 0448-0449. The evidence refers to these staff members as G staff, T staff (at the level of brigades) and S staff (at the battalion level). See Statement of witness P-0005, EVD-PT-OTP-04084, at 0092, paras 185-186; Transcript of testimony of witness P-0017, EVD-PT-OTP-06147, at 1941, 1943-1945; Transcript of testimony of witness P-0038, EVD-PT-OTP-06181, at 4733-4734; Transcript of interview of witness P- 0055, EVD-PT-OTP-04623, at 0335-0340. Transcript of interview of witness P-0055, EVD-PT-OTP-04626, at 0413-0415, EVD-PT-OTP-04642, at 0767-0772; Transcript of interview of witness P-0768, EVD-PT-OTP-06482, at 0469, EVD-PT-OTP- 06489, at 0622-0623.

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Transcript of testimony of witness P-0017, EVD-PT-OTP-06151, at 2357-2361; Statement of witness P-0016, EVD-PT-OTP-02701, at 0432, para. 55; Transcript of interview of witness P-0768, EVD-PT- OTP-06484, at 0519-0522,EVD-PT-OTP-06485, at 0547-0548; Statement of witness P-0290, EVD-PT- OTP-04357, at 0425 commenting on the logbook message, EVD-PT-OTP-00263, at 0058; Logbook message, EVD-PT-OTP-03975, at 1070, third message. Transcript of testimony of witness P-0038, EVD-PT-OTP-06181, at 4747; Statement of witness P- 0805, EVD-PT-OTP-06380, at 1097, para. 16; Transcript of interview of witness P-0290, EVD-PT-OTP- 06408, at 1252, commenting on the logbook message EVD-PT-OTP-03975, at 1107. Statement of witness P-0290, EVD-PT-OTP-04028, at 0315, para. 53; Transcript of interview of witness P-768, EVD-PT-OTP-06483, at 0488-0491; Statement of witness P-0016, EVD-PT-OTP-02701, at 0463, para. 236; Transcript of interview of witness P-0055, EVD-PT-OTP-04627, at 0453-0455. Statement of witness P-0014, EVD-PT-OTP-03854, at 1057, paras 257-258; Transcript of interview of witness P-0017, EVD-PT-OTP-04144, at 0084 and 0096, EVD-PT-OTP-04133, at 1557; Transcript of testimony of witness P-0017, EVD-PT-OTP-06149, at 2172; Statement of witness P-0016, EVD-PT-OTP- 02701, at 0452, para. 173, at 0467, paras 260 and 264; Transcript of interview of witness P-0055, EVD- PT-OTP-04627, at 0450; Transcript of interview of witness P-768, EVD-PT-OTP-06493, at 0710-0711; Statement of witness P-0758, EVD-PT-OTP-06335, at 0206-0207, paras 75, 78; Transcript of testimony of witness P-0038, EVD-PT-OTP-06181, at 4747-4748. Transcript of testimony of witness P-0017, EVD-PT-OTP-06151, at 2361-2365, EVD-PT-OTP-04144, at 0084; Statement of witness P-0016, EVD-PT-OTP-02701, at 0467, para. 264; Transcript of interview of witness P-0055, EVD-PT-OTP-06505, at 1052-1056; Transcript of testimony of witness P-0055, EVD-PT- OTP-06213, at 7471-7472. Logbook, EVD-PT-OTP-00263 and EVD-PT-OTP-03975 (translation); Transcript of testimony of witness P-0017, EVD-PT-OTP-06151, at 2361-2365; Transcript of interview of witness P-0055, EVD-PT- OTP-06505, at 1052-1056, EVD-PT-OTP-04627, at 0455-0457; Transcript of testimony of witness P-0055, EVD-PT-OTP-06213, at 7475-7476. Transcript of interview of witness P-0038, EVD-PT-OTP-03732, at 2722-2723; Statement of witness P- 0016, EVD-PT-OTP-02701, at 0452, para. 173; Transcript of interview of witness P-0017, EVD-PT-OTP- 04137, at 1671-1673. With the expression “north Hema”, the Chamber refers to Gegere individuals, who represent the northern branch of the Hema ethnic group, a sub-clan of the Hema. See in this regard Human Rights Watch Report, “The Curse of Gold Democratic Republic of Congo”, 2005, EVD-PT-OTP-00781, at 0650, footnote 2. Statement of witness P-0014, EVD-PT-OTP-03854, at 1003, para. 15; Human Rights Watch Report, “Ituri: ‘Covered in blood’, Ethnically Targeted Violence in Northeastern DR Congo”, July 2003, EVD- PT-OTP-00782, at 0825; Statement of witness P-0016, EVD-PT-OTP-02701, at 0439, para. 97; Statement of witness P-0041, EVD-PT-OTP-03268, at 0017, para. 89, at 0018, para. 94, at 0021, para. 111; Transcript of interview of witness P-0055, EVD-PT-OTP-04624, at 0379; Statement of witness P-0012, EVD-PT-OTP-01890, at 0112, para. 151; Statement of witness P-0043, EVD-PT-OTP-02686, at 0092, para. 35. Statement of witness P-0041, EVD-PT-OTP-03268, at 0024, para. 132; Statement of witness P-0005, EVD-PT-OTP-04084, at 0116-0117, paras 325 and 329; Statement of witness P-0016, EVD-PT-OTP- 02701, at 0454-0455, paras 187-193. Statement of witness P-0012, EVD-PT-OTP-01890, at 0110-0111, paras 141 and 147; Transcript of interview of witness P-0055, EVD-PT-OTP-04625, at 0387-0388; Statement of witness P-0024, EVD-PT- OTP-02698, at 0197, para. 40; Statement of witness P-0005, EVD-PT-OTP-04084, at 0118, para. 334. Handwritten notes by witness P-0017, EVD-PT-OTP-03936; Transcript of interview of witness P- 0017, EVD-PT-OTP-04144, at 0083-0084; Transcript of interview of witness P-0768, EVD-PT-OTP- 06483, at 0478-0479; MONUC document, 9 October 2003, EVD-PT-OTP-04792, at 1666; Transcript of testimony of witness P-0038, EVD-PT-OTP-06181, at 4742-4743; Transcript of interview of witness P-

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0290, EVD-PT-OTP-06417, at 1477-1478; Human Rights Watch Report, “Ituri: ‘Covered in blood’, Ethnically Targeted Violence in Northeastern DR Congo”, July 2003, EVD-PT-OTP-00782, at 0851; Statement of witness P-0005, EVD-PT-OTP-04084, at 0092, para. 185. Transcript of testimony of witness P-0038, EVD-PT-OTP-06181, at 4742, EVD-PT-OTP-06182, at 4832, EVD-PT-OTP-06183, at 4856; Transcript of testimony of witness P-0017, EVD-PT-OTP-06147, at 1964; Transcript of interview of witness P-0017, EVD-PT-OTP-04140, at 0015; Transcript of interview of witness P-0055, EVD-PT-OTP-04633, at 0581-0585; Statement of witness P-0005, EVD-PT-OTP- 04084, at 0095, para. 201; Statement of witness P-0014, EVD-PT-OTP-03854, at 1039, para. 173. Statement of witness P-0005, EVD-PT-OTP-04084, at 0093, para. 191; Notes of witness P-0017, EVD- PT-OTP-06115, at 0030-0036; Transcript of interview of witness P-0017, EVD-PT-OTP-06285, at 0751- 0761; Statement of witness P-0012, EVD-PT-OTP-01890, at 1006, paras 118 and 120; Statement of witness P-0758, EVD-PT-OTP-06335, at 0207, para. 80; Statement of witness P-0016, EVD-PT-OTP- 02701, at 0455, para. 195; Transcript of interview of witness P-0768, EVD-PT-OTP-06485, at 0531, EVD- PT-OTP-06492, at 0692-0694, EVD-PT-OTP-06489, at 0610-0614. Transcript of interview of witness P-0017, EVD-PT-OTP-04135, at 1615; Transcript of testimony of witness P-0012, EVD-PT-OTP-06125, at 0116; Statement of witness P-0014, EVD-PT-OTP-03854, at 1052, para. 233; Statement of witness P-0016, EVD-PT-OTP-02701, at 0446, para. 130; Transcript of interview of witness P-0055, EVD-PT-OTP-06503, at 0976-0978; Human Rights Watch Report, “The Curse of Gold Democratic Republic of Congo”, 2005, EVD-PT-OTP-00781, at 0662. Transcript of interview of witness P-0055, EVD-PT-OTP-06506, at 1072. Transcript of interview of witness P-0055, EVD-PT-OTP-06506, at 1078. Transcript of interview of witness P-0055, EVD-PT-OTP-06506, at 1072, 1075-1077; Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0517-0519, EVD-PT-OTP-06483, at 0499. Trial Chamber I, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06- 2842, para. 89; Transcript of testimony of witness P-0014, EVD-PT-OTP-06130, at 0561-0563. Transcript of testimony of witness P-0014, EVD-PT-OTP-06130, at 0570-0571. Statement of witness P-0014, EVD-PT-OTP-00702, at 0023, para. 103; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0436-0437, para. 37. Transcript of testimony of witness P-0014, EVD-PT-OTP-06132, at 0752; Summary of statement of witness P-0800, EVD-PT-OTP-06476, at 0644. Pre-Trial Chamber II, Transcript of Hearing, 12 February 2014, ICC-01/04-02/06-T-9-Red-ENG, pp. 75-77. Statement of witness P-0014, EVD-PT-OTP-03854, at 1003, para. 12. Statement of witness P-0014, EVD-PT-OTP-03854, at 1003, para. 12; Statement of witness P-0012, EVD-PT-OTP-01890, at 0116, para. 169; Statement of witness P-0043, EVD-PT-OTP-02686, at 0090- 0091, para. 26; Statement of witness P-0005, EVD-PT-OTP-04084, at 0085, para. 132. Statement of witness P-0016, EVD-PT-OTP-02701, at 0436, paras 80-83; Transcript of interview of witness P-0038, EVD-PT-OTP-03734, at 2764-2765, EVD-PT-OTP-06236, at 0143; Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0519, EVD-PT-OTP-06483, at 0499; Transcript of interview of witness P-0055, EVD-PT-OTP-06506, at 1071; Amnesty International Report, “Democratic Republic of Congo, Ituri: A need for protection, a thirst for justice”, 21 October 2003, EVD-PT-OTP- 00301, at 0159-0160. Statement of witness P-0758, EVD-PT-OTP-06335, at 0210, para. 101. Transcript of interview of witness P-0768, EVD-PT-OTP-06483, at 0498-0501, EVD-PT-OTP-06486, at 0564-0567, EVD-PT-OTP-06422, at 1633, EVD-PT-OTP-06484, at 0517-0518, EVD-PT-OTP-06423, at 1642. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0093-0094.

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Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0093-0094; Transcript of interview of witness P-0055, EVD-PT-OTP-06505, at 1026-1028; Transcript of interview of witness P-0017, EVD- PT-OTP-06107, at 0502-0504. Transcript of interview of witness P-0017, EVD-PT-OTP-06107, at 0502-0504; Transcript of interview of witness P-0055, EVD-PT-OTP-06505, at 1028. From an overall assessment of the evidence, the Chamber understands the order to pillage everything, including women, as applying exclusively to the property and women perceived to belong to the non-Hema population. Transcript of interview of witness P-0017, EVD-PT-OTP-06107, at 0504-0505. “Compte rendu des entretiens avec Camp Ndoromo, Bunia, RDC, les 14, 15 et 16 avril 2004”, EVD- PT-OTP-04905, at 0313. Pre-Trial Chamber II, Transcript of Hearing, 12 February 2014, ICC-01/04-02/06-T-9-Red-ENG, p. 73, lines 10-13. See paras 25-30. Statement of witness P-0012, EVD-PT-OTP-01890, at 0107, paras 125-126; Statement of witness P- 0014, EVD-PT-OTP-00702, at 0020, para. 92. Statement of witness P-0012, EVD-PT-OTP-01890, at 0107, paras 123-126; Statement of witness P- 0014, EVD-PT-OTP-00702, at 0019-0020, paras 87-88, 90. The APC was the armed wing of the Rassemblement Congolais pour la Démocratie- Kisangani/Mouvement de Libération (which was already known as RCD/ML). For the purpose of this decision the Chamber refers to the APC as the armed wing of this political party, although in some sources of evidence it is referred to as RCD-K/ML or RCD/ML. See Statement of witness P-0031, EVD- PT-OTP-03746, at 0013, para. 42; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0439, paras 46, 49; “En Ituri, les affrontements ne sont pas interethniques”, EVD-PT-OTP-00992, at 0444; Amnesty International, Democratic Republic of Congo, “On the precipice: the deepening human rights and humanitarian crisis in Ituri”, March 2003, EVD- PT-OTP-03498, at 1315. Statement of witness P-0014, EVD-PT-OTP-00702, at 0023-0024, paras 103, 105; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0436, para. 37, at 0455, para. 119; UN Joint Mission Analysis Center Profile of Bosco Tanganda, EVD-PT- OTP-03304, at 0437-0438; Human Rights Watch Report, “UPC Crimes in Ituri (2002 2003)”, 8 November 2006, EVD-PT-OTP-04498, at 1313; Human Rights Watch Report, “Ituri: ’Covered in Blood’, Ethnically Targeted Violence in Northeastern DR Congo”, July 2003, EVD-PT-OTP-00782, at 0823-0825; Final Report of the MONUC Special Investigation Team on the Abuses Committed in Ituri from January to March 2003, 20 June 2003, EVD-PT-OTP-03424, at 0296, para. 25; Rapport du Projet Mapping concernant les violations les plus graves des droits de l’homme et du droit international humanitaire commises entre mars 1993 et juin 2003 sur le territoire de la République démocratique du Congo, August 2010, EVD-PT-OTP-06057, at 0449-0450, para. 411. UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT- OTP-00779, at 0439, para. 49. UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT- OTP-00779, at 0439, para. 47, at 0455, para. 119. UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT- OTP-00779, at 0455, para. 119. Statement of witness P-0014, EVD-PT-OTP-00702, at 0028, para. 127; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0436-0437, para. 37. Statement of witness P-0014, EVD-PT-OTP-00702, at 0023, paras 103-104; Human Rights Watch Report, “Ituri: ’Covered in Blood’ Ethnically Targeted Violence in Northeastern DR Congo”, July 2003, EVD-PT-OTP-00782, at 0823-0824; Human Rights Watch Report, “UPC Crimes in Ituri (2002 2003)”, 8 November 2006, EVD-PT-OTP-04498, at 1313; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0439-0440, paras 47, 49.

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Statement of witness P-0056, EVD-PT-OTP-03530, at 0419, para. 58; UN Ntaganda Profile, EVD-PT- OTP-00064, at 0079, paras 13-14; “Compte rendu des entretiens avec Camp Ndoromo, Bunia, RDC, les 14, 15 et 16 avril 2004”, EVD-PT-OTP-04905, at 0311. Rapport du Projet Mapping concernant les violations les plus graves des droits de l’homme et du droit international humanitaire commises entre mars 1993 et juin 2003 sur le territoire de la République démocratique du Congo, August 2010, EVD-PT-OTP-06057, at 0451. “Compte rendu des entretiens avec Camp Ndoromo, Bunia, RDC, les 14, 15 et 16 avril 2004”, EVD- PT-OTP-04905, at 0311; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0440, para. 51; Human Rights Watch Report, “Ituri: ‘Covered in Blood’, Ethnically Targeted Violence in Northeastern DR Congo”, July 2003, EVD-PT-OTP-00782, at 0827. UN Joint Mission Analysis Center Profile of Bosco Tanganda, EVD-PT-OTP-03304, at 0437; “Compte rendu des entretiens avec Camp Ndoromo, Bunia, RDC, les 14, 15 et 16 avril 2004”, EVD- PT-OTP-04905, at 0311; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0440, para. 51; Human Rights Watch Report, “Ituri: ‘Covered in Blood’, Ethnically Targeted Violence in Northeastern DR Congo”, July 2003, EVD-PT-OTP-00782, at 0827. Statement of witness P-0012, EVD-PT-OTP-01890, at 0148-0149, para. 347. Rapport du Projet Mapping concernant les violations les plus graves des droits de l’homme et du droit international humanitaire commises entre mars 1993 et juin 2003 sur le territoire de la République démocratique du Congo, August 2010, EVD-PT-OTP-06057, at 0539, para. 605. “Compte rendu des entretiens avec Camp Ndoromo, Bunia, RDC, les 14, 15 et 16 avril 2004”, EVD- PT-OTP-04905, at 0311; Human Rights Watch Report, “Ituri: ‘Covered in Blood’, Ethnically Targeted Violence in Northeastern DR Congo”, July 2003, EVD-PT-OTP-00782, at 0827; Rapport du Projet Mapping concernant les violations les plus graves des droits de l’homme et du droit international humanitaire commises entre mars 1993 et juin 2003 sur le territoire de la République démocratique du Congo, August 2010, EVD-PT-OTP-06057, at 0451; Letter to the President of RCD-K/ML, 15 November 2002, EVD-PT-OTP-04760, at 0350. Rapport du Projet Mapping concernant les violations les plus graves des droits de l’homme et du droit international humanitaire commises entre mars 1993 et juin 2003 sur le territoire de la République démocratique du Congo, August 2010, EVD-PT-OTP-06057, at 0451; “Compte rendu des entretiens avec Camp Ndoromo, Bunia, RDC, les 14, 15 et 16 avril 2004”, EVD-PT-OTP-04905, at 0311. Human Rights Watch Report, “Ituri: ‘Covered in Blood’, Ethnically Targeted Violence in Northeastern DR Congo”, July 2003, EVD-PT-OTP-00782, at 0827. Statement of witness P-0046, EVD-PT-OTP-06242, at 0243, para. 80, at 0246, para. 1140; MONUC Report, “Individual Case Story – Bunia (Ituri)”, 26 March 2003, EVD-PT-OTP-05006, at 0286; Rapport du Projet Mapping concernant les violations les plus graves des droits de l’homme et du droit international humanitaire commises entre mars 1993 et juin 2003 sur le territoire de la République démocratique du Congo, August 2010, EVD-PT-OTP-06057, at 0452, para. 414; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0442-0443, paras 62-63. UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT- OTP-00779, at 0442-0443, paras 62-63 (125 civilians reported as killed); Rapport du Projet Mapping concernant les violations les plus graves des droits de l’homme et du droit international humanitaire commises entre mars 1993 et juin 2003 sur le territoire de la République démocratique du Congo, August 2010, EVD-PT-OTP-06057, at 0452, para. 414 (180 people, including civilians reported killed); International Crisis Group Report, “Congo: Quatre priorités pour une paix durable en Ituri”, 13 May 2008, EVD-PT-OTP-06059, at 0062. Rapport du Projet Mapping concernant les violations les plus graves des droits de l’homme et du droit international humanitaire commises entre mars 1993 et juin 2003 sur le territoire de la

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République démocratique du Congo, August 2010, EVD-PT-OTP-06057, at 0452, para. 414; Letter to the President of RCD-K/ML, 15 November 2002, EVD-PT-OTP-04760, at 0351. Rapport du Projet Mapping concernant les violations les plus graves des droits de l’homme et du droit international humanitaire commises entre mars 1993 et juin 2003 sur le territoire de la République démocratique du Congo, August 2010, EVD-PT-OTP-06057, at 0452, para. 414; Letter to the President of RCD-K/ML, 15 November 2002, EVD-PT-OTP-04760, at 0351. Rapport du Projet Mapping concernant les violations les plus graves des droits de l’homme et du droit international humanitaire commises entre mars 1993 et juin 2003 sur le territoire de la République démocratique du Congo, August 2010, EVD-PT-OTP-06057, at 0452, para. 414. UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT- OTP-00779, at 0442-0443, paras 62-63; List of victims from Bedu-Ezekere groupement, EVD-PT-OTP- 00022, at 0004. Statement of witness P-0046, EVD-PT-OTP-06242, at 0240, para. 112, at 0242, para. 123, at 0246, para. 140; MONUC Report, “Individual Case Story – Bunia (Ituri)”, 26 March 2003, EVD-PT-OTP- 05006, at 0314, at 0316, at 0346; UN MONUC, Final Report of the Special Investigation Team on the Events of Mambasa 31 December 2002 to 20 January 2003, EVD-PT-OTP-01844, at 0317, para. 6; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP- 00779, at 0452-0454, paras 105-112. UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT- OTP-00779, at 0452-0453, paras 105-106. UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT- OTP-00779, at 0452-0453, para. 106. Statement of witness P-0046, EVD-PT-OTP-06242, at 0233-0234, paras 77, 79; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0453, para. 108-109; UN MONUC, Final Report of the Special Investigation Team on the Events of Mambasa 31 December 2002 to 20 January 2003, EVD-PT-OTP-01844, at 0318, paras 9-10, at 0324, para. 43, at 0326- 0327, paras 56-61, at 0332, para. 96. UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT- OTP-00779, at 0452, para. 102; Letter from Abbé Roger Tsorovesorov “De la disparition de l’Abbé Boniface Bwanalongba à la paroisse de Mongbwalu du diocèese de Bunia en République Démocratique au Congo”, 18 January 2003, EVD-PT-OTP-02721, at 0118; Human Rights Watch Report, “The Curse of Gold Democratic Republic of Congo”, 2005, EVD-PT-OTP-00781, at 0666. See Transcript of testimony of witness P-0038, EVD-PT-OTP-06181, at 4750; Transcript of interview of witness P-0768, EVD-PT-OTP-06486, at 0559-0561, EVD-PT-OTP-06483, at 0492; Transcript of testimony of witness P-0017, EVD-PT-OTP-06147, at 1999, line 22; Summary of statement of witness P- 0800, EVD-PT-OTP-06476, at 0642; MONUC, Daily Report 22-24 November 2002, 25 November 2002, EVD-PT-OTP-00635, at 0333, para. 11; “En Ituri, les affrontements ne sont pas interethniques”, EVD- PT-OTP-00992, at 0444. Statement of witness P-0018, EVD-PT-OTP-01816, at 0119-0124, paras 16-38, EVD-PT-OTP-06083, at 0178, para. 14; Statement of witness P-0019, EVD-PT-OTP-03978, at 1518-1520, paras 22-37; Rapport final d’investigation sur les événements de Drodro du 03 avril 2003, EVD-PT-OTP-05000, at 0252. See Statement of witness P-0127, EVD-PT-OTP-02687, at 0114, para. 39; Rapport du Projet Mapping concernant les violations les plus graves des droits de l’homme et du droit international humanitaire commises entre mars 1993 et juin 2003 sur le territoire de la République démocratique du Congo, August 2010, EVD-PT-OTP-06057, at 0454-0455, para. 418. UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT- OTP-00779, at 0445, para. 73; “Compte rendu des entretiens avec Camp Ndoromo, Bunia, RDC, les 14, 15 et 16 avril 2004”, EVD-PT-OTP-04905, at 0312; Transcript of testimony of witness P-0017, EVD-PT- OTP-06151, at 2307.

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The UPC/FPLC was sided by the Parti pour l’unité et la sauvegarde de l’integrité du Congo (the “PUSIC”). See Video Material, EVD-PT-OTP-02634, at 0007; Transcript of Video Material, EVD-PT- OTP-04155, at 0348, lines 3-4; MONUC, Weekly Report 12-18 May 2003, 18 May 2003, EVD-PT-OTP- 00633, at 0180. UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT- OTP-00779, at 0446, para. 77; Rapport du Projet Mapping concernant les violations les plus graves des droits de l’homme et du droit international humanitaire commises entre mars 1993 et juin 2003 sur le territoire de la République démocratique du Congo, August 2010, EVD-PT-OTP-06057, at 0458, para. 423. “Compte rendu des entretiens avec Camp Ndoromo, Bunia, RDC, les 14, 15 et 16 avril 2004”, EVD- PT-OTP-04905, at 0313. UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT- OTP-00779, at 0446, para. 77. UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT- OTP-00779, at 0436, para. 37 UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT- OTP-00779, at 0447, para. 78 (killing of 260 civilians by the UPC reported “UPC killed at random, although possibly targeting non-natives and some professionals like police officers and taxi drivers”); Rapport du Projet Mapping concernant les violations les plus graves des droits de l’homme et du droit international humanitaire commises entre mars 1993 et juin 2003 sur le territoire de la République démocratique du Congo, August 2010, EVD-PT-OTP-06057, at 0458-0459, paras 423-424 (“les miliciens de l’UPC ont tué plusieurs centaines de civils, pour la plupart des Lendu de Ngiti et des Jajambo originaires d’autres districts, notamment des Nande”); Mission History of MONUC, EVD-PT-OTP-00074, at 0005 (on 15 May 2003 – 14 people reportedly killed); “L’UPC de Lubanga se livre aux actes de cannibalisme à Bunia! Congo : Actes de cannibalisme (22/05/2003), Près de 300 corps mutilés découverts dans le nord-est”, EVD-PT-OTP-00391, at 0077; Justice Plus Report, “Ituri: La violence au-dela du clivage ethnique”, July 2003, EVD-PT-OTP-00568, at 0008 (“the victims were majority Lendu, Bira and people coming from other regions in Congo”); Amnesty International Report, “Democratique Republic of Congo, Ituri: A need for protection, a thirst for justice”, 21 October 2003, EVD-PT-OTP-00301, at 0159-0161. UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT- OTP-00779, at 0436-0437, para. 37. Looting took place in particular in “Mudzipela or Nyankazansa”. See Statement of witness P-0046, EVD-PT-OTP-06242, at 0238, para. 99. Human Rights Watch Report, “Seeking Justice: The Prosecution of Sexual Violence in the Congo War”, March 2005, EVD-PT-OTP-06064, at 0517-0518; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0447, para. 80. For the notion of organised armed group, see Pre-Trial Chamber II, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo”, 15 June 2009, ICC-01/05-01/08-424, paras 232-236; Pre-Trial Chamber I, “Decision on the confirmation of charges”, 29 January 2007, ICC-01/04-01/06-803-tEN, paras 232-234; Pre-Trial Chamber I, “Decision on the confirmation of charges”, 30 September 2008, ICC-01/04-01/07-717, para. 239; Trial Chamber I, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04- 01/06-2842, paras 536-537; Trial Chamber II, “Jugement rendu en application de l’article 74 du Statut”, 7 March 2014, ICC-01/04-01/07-3436, para. 1186. For the notion of non-international armed conflict, see Pre-Trial Chamber II, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo”, 15 June 2009, ICC-01/05-01/08-424, para. 231; Pre-Trial Chamber I, “Decision on the confirmation of charges”, 29 January 2007, ICC-01/04-01/06-803-tEN, paras 231-232; Trial Chamber I, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06-2842, para. 538 ;

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Trial Chamber II, “Jugement rendu en application de l’article 74 du Statut”, 7 March 2014, ICC-01/04- 01/07-3436, para. 1187. For a description of the occupation by Uganda, see Trial Chamber II, “Jugement rendu en application de l’article 74 du Statut”, 7 March 2014, ICC-01/04-01/07-3436, paras 1198-1205. See also Statement of witness P-0012, EVD-PT-OTP-01890, at 0107, para. 125; Statement of witness P-0014, EVD-PT-OTP-00702, at 0020, para. 92. The Chamber recalls its findings in Section A of the decision in order to find substantial grounds to believe that the UPC/FPLC qualified, at the time of the armed conflict, as an armed group within the meaning of article 8(2)(f) of the Statute. See findings in Section A of the present decision. See also Transcript of testimony of witness P- 0017, EVD-PT-OTP-06151, at 2307; Statement of witness P-0014, EVD-PT-OTP-00702, at 0019; Transcript of interview of witness P-0017, EVD-PT-OTP-06111, at 0609 (referring to the foreseeable difficulties of the operation in Kobu); Transcript of interview of witness P-0768, EVD-PT-OTP-06483, at 0499 (mentioning the operational strategy to conquer the hills surrounding Mongbwalu in order to defeat the RDC/K-ML); “Compte rendu des entretiens avec Camp Ndoromo, Bunia, RDC, les 14, 15 et 16 avril 2004”, EVD-PT-OTP-04905, at 0312; Rapport du Projet Mapping concernant les violations les plus graves des droits de l’homme et du droit international humanitaire commises entre mars 1993 et juin 2003 sur le territoire de la République démocratique du Congo, August 2010, EVD-PT-OTP- 06057, at 0457, para. 421; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0425-0427, at 0429-0433, 0445; Interim report of the Special Rapporteur on the situation of human rights in the Democratic Republic of the Congo, 24 October 2003, EVD-PT-OTP-02800, at 0260-0263; Human Rights Watch Report, “Ituri: ‘Covered in blood’, Ethnically Targeted Violence in Northeastern DR Congo”, July 2003, EVD-PT-OTP-00782, at 0823- 0825. Statement of witness P-0017, EVD-PT-OTP-01890, at 0155, para. 384; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0449, paras 89-90; Final Report of the MONUC Special Investigation Team on Abuses Committed in Ituri territories of Irumu, Mahagi and Aru from May to August 2003, EVD-PT-OTP-04874, at 330, para. 6; Communiqué de presse no 013/003 (PUSIC), 6 November 2003, EVD-PT-OTP-02162, at 0286. Statement of witness P-0012, EVD-PT-OTP-01890, at 0149-0150, paras 349-354, at 0154-0155, paras 378-381; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD- PT-OTP-00779, at 0449, para. 87; Final Report of the MONUC Special Investigation Team on Abuses Committed in Ituri territories of Irumu, Mahagi and Aru from May to August 2003, EVD-PT-OTP- 04874, at 0329-0330, para. 6; Fourteenth Report of the Secretary-General of the United Nations Organization Mission in the Democratic Republic of the Congo, 17 November 2003, EVD-PT-OTP- 00776, at 0217, para. 9; Communiqué de presse no 013/003 (PUSIC), 6 November 2003, EVD-PT-OTP- 02162, at 0286 ; Rapport sur la situation générale en Ituri présenté par l’organe exécutif intérimaire à ème l’Assemblée Spéciale Intérimaire de l’Ituri lors de sa 5 session, November 2003, EVD-PT-OTP- 01554, at 0241; Rapport d’opération sur Tchomia “Opération EFFACER PUSIC”, EVD-PT-OTP-00254; Diary of events under Chapter VII AUG 2003 – JAN 2004, EVD-PT-OTP-04791, at 1654-1655. UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT- OTP-00779, at 0452, paras 103-104. UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT- OTP-00779, at 0449-0450, paras 91-92; “The Ituri Conflict: A Background Study”, June 2008, EVD-PT- OTP-04866, at 0112. Diary of events under Chapter VII AUG 2003 – JAN 2004, EVD-PT-OTP-04791, at 1652; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0450, para. 93. Diary of events under Chapter VII AUG 2003 – JAN 2004, EVD-PT-OTP-04791, at 1658.

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Transcript of interview of witness P-0017, EVD-PT-OTP-06111, at 0609 (referring to the foreseeable difficulties of the operation in Kobu); UN Special Report on the events in Ituri, January 2002- December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0445, para. 73; “Compte rendu des entretiens avec Camp Ndoromo, Bunia, RDC, les 14, 15 et 16 avril 2004”, EVD-PT-OTP-04905, at 0312; Transcript of interview of witness P-0017, EVD-PT-OTP-06110, at 0570. UN SC Resolution 1484 (2003), EVD-PT-OTP-03483, 30 May 2003, at 0671-0672; UN SC Resolution 1493 (2003), EVD-PT-OTP-02813, 28 July 2003, at 0162-0163. For the factors concerning the determination of the existence of an armed conflict, see Trial Chamber II, “Jugement rendu en application de l’article 74 du Statut”, 7 March 2014, ICC-01/04-01/07- 3436, para. 1187; UN Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0446-0447, para. 77; The Kampala understanding between RCD-ML and UPC, 15 November 2002, EVD-PT-OTP-02124, at 0187-0188; “RDC: L’UPC refuse de signer un accord de cessez-le-feu”, 19 March 2003, EVD-PT-OTP-00746, at 0024; Agreement on Re-Engagement of Ituri Peace Process, 16 May 2003, EVD-PT-OTP-00607, at 0021-0024. There is no evidence to establish substantial grounds to believe that sexual slavery was committed by the UPC/FPLC soldiers in the First Attack. DCC, ICC-01/04-02/06-203-AnxA, pp. 56-57. Human Rights Watch Report, “Ituri: ’Covered in blood’, Ethnically Targeted Violence in Northeastern DR Congo”, July 2003, EVD-PT-OTP-00782, at 0829; Human Rights Watch Report, “UPC Crimes in Ituri (2002 2003)”, 8 November 2006, EVD-PT-OTP-04498, at 1314; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0452, para. 102. For the elements of the crime of murder as a crime against humanity and a war crime, see Pre-Trial Chamber II, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo”, 15 June 2009, ICC-01/05-01/08-424, paras 131-134, 273-274; Trial Chamber II, “Jugement rendu en application de l’article 74 du Statut”, 7 March 2014, ICC-01/04-01/07-3436, paras 767-769, 786-791. Transcript of interview of witness P-0768, EVDD-PT-OTP-06423, at 1652; Statement of witness P- 0315, EVD-PT-OTP-06363, at 1013, para. 129; Transcript of interview of witness P-0038, EVD-PT-OTP- 06235, at 0115; Summary of statement of witness P-0800, EVD-PT-OTP-06476, at 0644; Transcript of interview of witness P-0768, EVD-PT-OTP-06486, at 0573; Human Rights Watch Report, “Ituri: ’Covered in blood’, Ethnically Targeted Violence in Northeastern DR Congo”, July 2003, EVD-PT- OTP-00782, at 0829; Human Rights Watch Report, “The Curse of Gold Democratic Republic of Congo”, 2005, EVD-PT-OTP-00781, at 0665. Human Rights Watch Report, “Ituri: ’Covered in blood’, Ethnically Targeted Violence in Northeastern DR Congo”, July 2003, EVD-PT-OTP-00782, at 0828. Statement of witness P-804, EVD-PT-OTP-06391, at 1132, paras 19-20; UN Joint Mission Analysis Center Profile of Bosco Tanganda, EVD-PT-OTP-03304, at 0437. Statement of witness P-0804, EVD-PT-OTP-06391, at 1132, para. 20 (these civilian victims were workers of the Kilo Moto company). Transcript of interview of witness P-0768, EVD-PT-OTP-06424, at 1671-1672 (the witness speaks about “l’appartement de BOSCO”); Transcript of interview of witness P-0017, EVD-PT-OTP-06109, at 0538 (mentioning “le camp de BOSCO”); Transcript of interview of witness P-0038, EVD-PT-OTP- 06235, at 0111-0113 (speaking of “au camp de BOSCO”); Transcript of interview of witness P-0055, EVD-PT-OTP-06507, at 1116; Statement of witness P-0315, EVD-PT-OTP-06363, at 1014, para. 132 (mentioning other sources, who referred to “les appartments”). For the sake of clarity, the Chamber will refer to “Mr Ntaganda’s camp”. Transcript of interview of witness P-0768, EVD-PT-OTP-06422, at 1635-1636, EVD-PT-OTP-06423, at 1638-1640; Statement of witness P-0041, EVD-PT-OTP-03268, at 0015, para. 80; Statement of witness

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P-0315, EVD-PT-OTP-06363, at 1015, para. 135; Transcript of interview of witness P-0038, EVD-PT- OTP-06235, at 0112-0113; Statement of witness P-804, EVD-PT-OTP-06391, at 1132, para. 20. Statement of witness P-0768, EVD-PT-OTP-06422, at 1635-1636,EVD-PT-OTP-06423, at 1638-1640. Human Rights Watch Report, “Ituri: ’Covered in blood’, Ethnically Targeted Violence in Northeastern DR Congo”, July 2003, EVD-PT-OTP-00782, at 0828. Transcript of interview of witness P-0768, EVD-PT-OTP-06425, at 1706, EVD-PT-OTP-06486, at 0574. Transcript of interview of witness P-0768, EVD-PT-OTP-06425, at 1701, at 1703-1704; Transcript of interview of witness P-0038, EVD-PT-OTP-06240, at 0198-0199; Transcript of testimony of witness P- 0017, EVD-PT-OTP-06149, at 2166; Summary of statement of witness P-0800, EVD-PT-OTP-06476, at 0644; Human Rights Watch Report, “The Curse of Gold Democratic Republic of Congo”, 2005, EVD- PT-OTP-00781, at 0665-0666; Statement of witness P-0315, EVD-PT-OTP-06363, at 1015, para. 136. Transcript of testimony of witness P-0017, EVD-PT-OTP-06149, at 2168-2169; Transcript of interview of witness P-0017, EVD-PT-OTP-06110, at 0580-0584; Human Rights Watch Report, “Ituri: ’Covered in blood’, Ethnically Targeted Violence in Northeastern DR Congo”, July 2003, EVD-PT- OTP-00782, at 0829; Statement of witness P-0315, EVD-PT-OTP-06363, para. 136; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0452, para. 102. Summary of statement of witness P-0800, EVD-PT-OTP-06476, at 0643-0644; Transcript of interview of witness P-0017, EVD-PT-OTP-06110, at 0586; Transcript of testimony of witness P-0017, EVD-PT- OTP-06149, at 2166. Summary of statement of witness P-0800, EVD-PT-OTP-06476, at 0643. Human Rights Watch Report, “The Curse of Gold Democratic Republic of Congo”, 2005, EVD-PT- OTP-00781, at 0666. Human Rights Watch Report, “The Curse of Gold Democratic Republic of Congo”, 2005, EVD-PT- OTP-00781, at 0666; Statement of witness P-0022, EVD-PT-OTP-01862, at 0033-0034, paras 37-41. Human Rights Watch Report, “The Curse of Gold Democratic Republic of Congo”, 2005, EVD-PT- OTP-00781, at 0666-0667. Human Rights Watch Report, “The Curse of Gold Democratic Republic of Congo”, 2005, EVD-PT- OTP-00781, at 0666. Statement of witness P-0022, EVD-PT-OTP-01862, at 0034, paras 41-42; Forensic report concerning witness P-0022, EVD-PT-OTP-00867. Transcript of interview of witness P-0038, EVD-PT-OTP-03732, at 2726-2727, EVD-PT-OTP-03733, at 2731-2732. Transcript of interview of witness P-0017, EVD-PT-OTP-06285, at 0772-0778, EVD-PT-OTP-06286, at 0781-0783. Statement of witness P-0019, EVD-PT-OTP-06123, at 0064, para. 16. Statement of witness P-0019, EVD-PT-OTP-02447, at 0149, paras 36-37. “Rapport des attaques de l’UPC dans les villages Lendu”, February-March 2003, EVD-PT-OTP- 00691 (Translation: EVD-PT-OTP-06248); Statement of witness P-0127, EVD-PT-OTP-02687, at 0113- 0114, paras 36-39; Statement of witness P-0792, EVD-PT-OTP-06327, at 0146-0147, paras 60-63; Statement of witness P-0105, EVD-PT-OTP-00736, at 0388, para. 33; Statement of witness P-0019, EVD- PT-OTP-02447, at 0145, para. 20; Statement of witness P-0106, EVD-PT-OTP-01801, at 0078-0080, paras 21-27; Transcript of interview of witness P-0055, EVD-PT-OTP-04642, at 0776-0778; Statement of witness P-0768, EVD-PT-OTP-06494, at 0724; Statement of witness P-0317, EVD-PT-OTP-06473, at 0294-0295, paras 51 and 68. Statement of witness P-0105, EVD-PT-OTP-00736, at 0389, para. 37. Statement of witness P-0019, EVD-PT-OTP-02447, at 0146, para. 25. Transcript of interview of witness P-0038, EVD-PT-OTP-06237, at 0149-0152, EVD-PT-OTP-06239, at 0190, EVD-PT-OTP-06241, at 0208-0209, EVD-PT-OTP-03733, at 2750-2758, EVD-PT-OTP-03734, at

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2763-2770; Transcript of interview of witness P-0017, EVD-PT-OTP-04139, at 1713-1722, EVD-PT-OTP- 06287, at 0815-0817, EVD-PT-OTP-06151, at 2300-2301, EVD-PT-OTP-06237, at 0149-0152; Statement of witness P-0046, EVD-PT-OTP-06242, at 0225, paras 27-31. Statement of witness P-0018, EVD-PT-OTP-06083, at 0185, para. 90, EVD-PT-OTP-01816, at 0123- 0124, para. 38. Statement of witness P-0105, EVD-PT-OTP-00736, at 0388, paras 31-32. Statement of witness P-0127, EVD-PT-OTP-02687, at 0113, para. 34. Statement of witness P-0046, EVD-PT-OTP-06242, at 0229, para. 57. Statement of witness P-0804, EVD-PT-OTP-06391, at 1133, paras 24-25. Statement of witness P-0107, EVD-PT-OTP-01814, at 0106, para. 31; Statement of witness P-0046, EVD-PT-OTP-06242, at 0229, para. 53; Final Report of the MONUC Special Investigation Team on the Abuses Committed in Ituri from January to March 2003, 20 June 2003, EVD-PT-OTP-03424, at 0303, para. 63. DCC, ICC-01/04-02/06-203-AnxA, p. 57. For the notion of war crimes committed in the conduct of hostilities, see Pre-Trial Chamber I, “Decision on the confirmation of charges”, 30 September 2008, ICC-01/04-01/07-717, para. 267. See also G. Werle, Principles of International Criminal Law, The Hague, Asser (2009), at 426-428; A. Cassese, International Criminal Law, Oxford, Oxford University Press (2013), at 73; See A. Cassese, G. Acquaviva, M. Fan, A. Whiting, International Criminal Law. Cases and Commentary, Oxford, Oxford University Press (2011), at 138. For the elements of the war crime of attacking civilians, see Pre-Trial Chamber I, “Decision on the confirmation of charges”, 30 September 2008, ICC-01/04-01/07-717, para. 265; Trial Chamber II, “Jugement rendu en application de l’article 74 du Statut”, 7 March 2014, ICC-01/04-01/07-3436, paras 799-802. Element 1 of the Elements of Crime for the war crime of attacking civilians reads: “[t]he perpetrator directed an attack” (emphasis added). Article 13(2) APII states that “the civilian population as such, as well as individual civilians, shall not be the object of attack”; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (1977) 1125 UNTS 609. See also Trial Chamber II, “Jugement rendu en application de l’article 74 du Statut”, 7 March 2014, ICC-01/04-01/07-3436, paras 797-798. See C. Pilloud et al., Commentary of the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, Martinus Nijhoff (1987), commentary to article 13(2) APII, p. 1453, at 4783. According to the commentary “[P]rotocol I defines attacks. This term has the same meaning in Protocol II”. In support of the view that conduct other than the classic methods of warfare (shelling, bombarding, sniping) may constitute methods of warfare see for example: France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 85; Russian Federation, Regulations on the Application of the Rules of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, para. 7; Ukraine, Manual on the Application of IHL Rules, Ministry of Defense, 11 September 2004, paras 1.3.2 and 1.8.6; Cameroon, Droits des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 183, para. 493.A.; Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, p. 23; UN SC Resolution 1820 (2008), S/RES/1820, 19 June 2008; UN SC Resolution 1590 (2005), S/RES/1590, 24 March 2005; UN SC Resolution 1468 (2003), S/RES/1468, 20 March 2003; Germany, Statement before the UN Security

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Council, UN Doc. S/PV.5100, 14 December 2004, pp. 18-19. See the ICRC database, available at: http://www.icrc.org/customary-ihl/eng/docs/v2_rul. See for examples the findings of the Chamber in counts 1 and 2 (murder and attempted murder) concerning the killings of civilians held prisoners at Mr. Ntaganda’s camp and the killings that took place after the UPC/FPLC took control of Kobu. See also for example the findings in counts 4 and 5 (rape) on rapes committed after the takeover of Mongbwalu. Pre-Trial Chamber I, “Decision on the confirmation of charges”, 30 September 2008, ICC-01/04- 01/07-717, para. 269. See for example the findings of the Chamber in respect of counts 1 and 2 (murder and attempted murder) in connection to the First Attack, in particular the killings at Mongbwalu airfield, the hospital and in the Gangala area; in the Second Attack see the killings of 7 persons by a bomb fired from the village of Mabanga. With regard to count 5 (rape), see the findings on the rapes committed during the takeover of Mongbwalu. As for count 11 (pillaging), see the findings in the First Attack and Second Attack. With regard to count 17 (attacking protected objects), see the findings in the First Attack and the Second Attack. As for count 18 (destroying the enemy’s property), see the findings in the First Attack and the Second Attack. See for example the findings of the Chamber in connection to count 18 concerning the orders received by the UPC/FPLC soldiers in the field to flatten the villages of Kobu, Bambu, Lipri and surrounding villages and on the execution of this order by the troops, which set fire to the straw houses and destroyed infrastructures. See also the findings made in respect of the mode of liability of ordering and inducing under article 25(3)(b) of the Statute. DCC, ICC-01/04-02/06-203-AnxA, p. 57. Transcript of interview of witness P-0017, EVD-PT-OTP-06107, at 0508, line 466 to 0509, line 503, at 0512, line 620 to 0514, line 716. See also EVD-PT-OTP-06107, at 0517, line 835 to 0518 line 847, where the witness explains that when speaking about rape he refers to the following act: “vous allez jusqu’à obliger à une personne à partager cet acte sexuel sans la volonté de la personne, contre sa volonté”. For the elements of the crime of rape as a crime against humanity and a war crime, see Trial Chamber II, “Jugement rendu en application de l’article 74 du Statut”, 7 March 2014, ICC-01/04-01/07- 3436, paras 961-968; Pre-Trial Chamber II, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo”, 15 June 2009, ICC- 01/05-01/08-424, para. 162; Pre-Trial Chamber I, “Decision on the confirmation of charges”, 30 September 2008, Pre-Trial Chamber I, “Decision on the confirmation of charges”, 30 September 2008, ICC-01/04-01/07-717, para. 440. Transcript of interview of witness P-0017, EVD-PT-OTP-06107, at 0514, line 717 to 0515, line 745, at 0516, lines 767-783; Transcript of interview of witness P-0038, EVD-PT-OTP-06235, at 0121, lines 447- 460. Transcript of interview of witness P-0017, EVD-PT-OTP-06107, at 0516, line 784 to 0518, line 847, EVD-PT-OTP-06108, at 0526, line 9 to 0528, line 102. Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0505, lines 58-61, at 0506, line 112 to 0507, line 124. Transcript of interview of witness P-0768, EVD-PT-OTP-06422, at 1636, lines 944-948, EVD-PT- OTP-06484, at 0508, line 187 to 0510, line 252 Transcript of interview of witness P-0017, EVD-PT-OTP-06108, at 0530, line 184 to 0532, line 272, EVD-PT-OTP-06112, at 0614, line 9 to 0615, line 68, at 0616, lines 106-116, at 0618, lines 170-176. Statement of witness P-0022, EVD-PT-OTP-01862, at 0031-0032, paras 29-31. Statement of witness P-0022, EVD-PT-OTP-01862, at 0032-0033, para. 34. Statement of witness P-0022, EVD-PT-OTP-01862, at 0033, para. 35. See Trial Chamber II, “Jugement rendu en application de l’article 74 du Statut”, 7 March 2014, ICC-01/04-01/07-3436, para. 963.

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Transcript of interview of witness P-0055, EVD-PT-OTP-06505, at 1029, lines 356-368; Rapport du Projet Mapping concernant les violations les plus graves des droits de l’homme et du droit international humanitaire commises entre mars 1993 et juin 2003 sur le territoire de la République démocratique du Congo, August 2010, EVD-PT-OTP-06057, at 0588, para. 756. Transcript of interview of witness P-0055, EVD-PT-OTP-06504, at 1008, line 605 to 1011, line 712. Statement of witness P-0804, EVD-PT-OTP-06391, at 1133, para. 25. Statement of witness P-0019, EVD-PT-OTP-03978, at 1518, paras 27-28. Statement of witness P-0018, EVD-PT-OTP-06083, at 0185, para. 90. Statement of witness P-0018, EVD-PT-OTP-01816, at 0122-0123, paras 32-34, EVD-PT-OTP-06083, at 0183-0184, paras 75-79. Statement of witness P-0113, EVD-PT-OTP-06378, at 1079-1080, paras 29-31. Statement of witness P-0113, EVD-PT-OTP-06378, at 1081, para. 42. Statement of witness P-0113, EVD-PT-OTP-06378, at 1083, para. 51. Statement of witness P-0019, EVD-PT-OTP-06123, at 0063, paras 12-13. Statement of witness P-0019, EVD-PT-OTP-06123, at 0063, para. 13. Statement of witness P-0019, EVD-PT-OTP-06123, at 0064, para. 16. See para. 43. Transcript of interview of witness P-0038, EVD-PT-OTP-06241, at 0204, line 73 to 0205, line 79, at 0205, line 109 to 0209, line 235. Transcript of interview of witness P-0038, EVD-PT-OTP-06241, at 0207, lines 155-160. See Elements of Crimes, footnotes 16 and 64. Transcript of interview of witness P-0017, EVD-PT-OTP-06286, at 0798, line 741 to 0800, line 799. DCC, ICC-01/04-02/06-203-AnxA, p. 58. For the nature of the relationship of ownership between the perpetrator and the victim, see ICTY, Prosecutor v. Kunarac et al., Case No. IT-96-23 & IT-96-23/1-A, “Judgment”, 12 June 2002, para. 121. The Chamber has taken into account the existence of a combination of factors such as, the detention or captivity in which the victim was held and its duration, the limitations to the victim’s free movement, measures taken to prevent or deter escape, the use of force, threat of force or coercion, and the personal circumstances of the victim, including his/her vulnerability. See Trial Chamber II, “Jugement rendu en application de l’article 74 du Statut”, 7 March 2014, ICC-01/04-01/07-3436, paras 973-980; Pre-Trial Chamber I, “Decision on the confirmation of charges”, 30 September 2008, ICC- 01/04-01/07-717, paras 430-432. Statement of witness P-0019, EVD-PT-OTP-03978, at 1516-1517, paras 22-23. Statement of witness P-0019, EVD-PT-OTP-03978, at 1517-1518, paras 24-25, 29. Statement of witness P-0019, EVD-PT-OTP-03978, at 1518-1519, para. 30. Statement of witness P-0019, EVD-PT-OTP-03978, at 1519, para. 32. See also para. 52 of the present decision. Statement of witness P-0019, EVD-PT-OTP-03978, at 1518-1520, paras 22-37. Statement of witness P-0018, EVD-PT-OTP-01816, at 0121, para. 26, at 0123-0124, paras 37-39, EVD- PT-OTP-06083, at 0185, para. 90. Statement of witness P-0018, EVD-PT-OTP-01816, at 0121, para. 27, EVD-PT-OTP-06083, at 0181, para. 54. Statement of witness P-0018, EVD-PT-OTP-06083, at 0185, para. 90, EVD-PT-OTP-01816, at 0122, para. 30, at 0123, para. 36. Statement of witness P-0113, EVD-PT-OTP-01793, at 0041-0042, paras 25-27,31. Statement of witness P-0113, EVD-PT-OTP-06378, at 1079, para. 28. Statement of witness P-0113, EVD-PT-OTP-01793, at 0043, para. 33. Statement of witness P-0113, EVD-PT-OTP-01793, at 0044-0045, para. 40, EVD-PT-OTP-06378, at 0183, para. 53. See para. 51.

No. ICC-01/04-02/06 78 9 June 2014

Statement of witness P-0113, EVD-PT-OTP-01793, at 0046, para. 44, EVD-PT-OTP-06378, at 0183, para. 54. Transcript of interview of witness P-0017, EVD-PT-OTP-06286, at 0798, line 741 to 0800, line 799, at 0800, line 798, at 0801, line 863. Transcript of interview of witness P-0017, EVD-PT-OTP-06286, at 0800, lines 789-814. Transcript of interview of witness P-0017, EVD-PT-OTP-06286, at 0801, line 859 to 0802, line 874. Transcript of interview of witness P-0017, EVD-PT-OTP-06286, at 0802, lines 876-882. DCC, ICC-01/04-02/06-203-AnxA, pp. 58-59. DCC, ICC-01/04-02/06-203-AnxA, pp. 56-60. See articles 6(1), 7 and 8 of the International Covenant on Civil and Political Rights. See the findings of the Chamber in Section C concerning the specific crimes charged. DCC, ICC-01/04-02/06-203-AnxA, p. 59. For the elements of the war crime of pillaging, see Pre-Trial Chamber II, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo”, 15 June 2009, ICC-01/05-01/08-424, paras 316-318; Pre-Trial Chamber I, “Decision on the confirmation of charges”, 30 September 2008, ICC-01/04-01/07-717, paras 328-330; Trial Chamber II, “Jugement rendu en application de l’article 74 du Statut”, 7 March 2014, ICC-01/04-01/07-3436, paras 904-910. See Elements of Crimes, footnote 62. UPC/FPLC commanders, including Mr. Ntaganda, often used the expression "piga na kuchaji" or "kupiga na kuchaji", which meant that troops should fight and pillage everything, including women (Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0093-0094; Transcript of interview of witness P-0055, EVD-PT-OTP-06505, at 1026-1028; Transcript of interview of witness P-0017, EVD- PT-OTP-06107, at 0502-0505; Transcript of interview of witness P-0768, EVD-PT-OTP-06485, at 0532- 0533). Statement of witness P-0100, EVD-PT-OTP-01792, at 0024-0025, paras 20-25; Transcript of interview of witness P-0055, EVD-PT-OTP-06506, at 1071; Statement of witness P-0127, EVD-PT-OTP-02687, at 0112-0113, para. 31; Transcript of interview of witness P-0768, EVD-PT-OTP-06485, at 0532-0535, EVD- PT-OTP-06487, at 0581-0583; Statement of witness P-0018, EVD-PT-OTP-01816, at 0121, para. 27, EVD-PT-OTP-06083, at 0181, para. 54; Statement of witness P-0107, EVD-PT-OTP-01814, at 0106, para. 30; Statement of witness P- 0016, EVD-PT-OTP-02701, at 446, para. 132; Transcript of interview of witness P-0768, EVD-PT-OTP- 06487, at 0587. Transcript of testimony of witness P-0017, EVD-PT-OTP-06149, at 2172; Transcript of interview of witness P-0017, EVD-PT-OTP-06107, at 0496-0500 (mentioning the acts of appropriation carried out by the population); Transcript of interview of witness P-0768, EVD-PT-OTP-06485, at 0532-0535; Transcript of interview of the witness P-0038, EVD-PT-OTP-06235, at 0121 (referring to civilians carrying out acts of appropriation); Statement of witness P-0804, EVD-PT-OTP-06391, at 1132, para. 20. Statement of witness P-0016, EVD-PT-OTP-02701, at 446, para. 132; Transcript of interview of witness P-0768, EVD-PT-OTP-06487, at 0587. Transcript of interview of witness P-0017, EVD-PT-OTP-06110, at 0561. Transcript of interview of witness P-0038, EVD-PT-OTP-06241, at 0216-0217. Transcript of interview of witness P-0768, EVD-PT-OTP-06485, at 0532-0535. Transcript of interview of witness P-0768, EVD-PT-OTP-06483, at 0502, EVD-PT-OTP-06485, at 0535, EVD-PT-OTP-06491, at 0670-0671, EVD-PT-OTP-06484, at 0515-0517; Statement of witness P- 0017, EVD-PT-OTP-06110, at 0558-0559. Transcript of interview of witness P-0768, EVD-PT-OTP-06487, at 0583; Summary of statement of witness P-0800, EVD-PT-OTP-06476, at 0644; Transcript of interview of witness P-0038, EVD-PT-OTP- 03731, at 2657.

No. ICC-01/04-02/06 79 9 June 2014

Transcript of interview of witness P-0768, EVD-PT-OTP-06487, at 0581-0582. Statement of witness P-0317, EVD-PT-OTP-06473, at 0294, para. 48; Statement of witness P-0046, EVD-PT-OTP-06242, at 0225, para. 32, at 0229, paras 54-55; Department of State, Report on Human Rights Practices, 25 February 2004, EVD-PT-OTP-00299, at 0121; Final Report of the MONUC Special Investigation Team on the Abuses Committed in Ituri from January to March 2003, 20 June 2003, EVD-PT-OTP-03424, at 0287, para. 6; UN SC Special Report on the events in Ituri, January 2002- December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0444, para. 69; UN Joint Mission Analysis Center Profile of Bosco Tanganda, EVD-PT-OTP-03304, at 0438. Transcript of interview of witness P-0055, EVD-PT-OTP-06506, at 1071-1072. Statement of witness P-0805, EVD-PT-OTP-06380, at 1102, para. 44. Statement of witness P-0105, EVD-PT-OTP-00736, at 0392, para. 52. Transcript of interview of witness P-0055, EVD-PT-OTP-06506, at 1072-1079. Statement of witness P-0018, EVD-PT-OTP-01816, at 0121, para. 27, EVD-PT-OTP-06083, at 0181, para. 54; Statement of witness P-0107, EVD-PT-OTP-01814, at 0106, para. 30. Statement of witness P-0018, EVD-PT-OTP-01816, at 0121, para. 27; Statement of witness P-0107, EVD-PT-OTP-01814, at 0106, para. 30. In its findings on counts 12 and 13, the Chamber retains the discretion to use the expressions “forcible transfer” or “displacement” interchangeably, in order to refer to the same conduct put in place by the UPC/FPLC to drive civilians out of certain areas. This does not affect the legal characterization of this conduct as either the crime against humanity of forcible transfer or the war crime of displacement of civilians or both, should all respective elements of crimes be met. DCC, ICC-01/04-02/06-203-AnxA, p. 59. ICC-01/04-02/06-292-Red2, paras 267-268. See Elements of Crimes of the war crime of displacing civilians (article 8(2)(e)(viii) of the Statute), p. 39. Transcript of testimony of witness P-0016, EVD-PT-OTP-06143, at 1641. Statement of witness P-0019, EVD-PT-OTP-02447, at 0144, para. 16; Statement of witness P-0805, EVD-PT-OTP-06380, at 1096-1097, paras 12-15; Screening of witness P-0300, EVD-PT-OTP-03362, at 0289, para. 7; Statement of witness P-0019, EVD-PT-OTP-02447, at 0144, para. 16. Statement of witness P-0022, EVD-PT-OTP-01862, at 0030, paras 22-23. Transcript of interview of witness P-0768, EVD-PT-OTP-06486, at 0573. Transcript of interview of witness P-0768, EVD-PT-OTP-06425, at 1706. Statement of witness P-0127, EVD-PT-OTP-02687, at 0112, para. 28; Transcript of testimony of witness P-0017, EVD-PT-OTP-06149, at 2187-2188; Statement of witness P-0105, EVD-PT-OTP-00736, at 0386-0387, paras 24-29. Transcript of testimony of witness P-0017, EVD-PT-OTP-06149, at 2187-2188; Statement of witness P-0804, EVD-PT-OTP-06391, at 1133-1135, paras 26-35; Statement of witness P-0300, EVD-PT-OTP- 06265, at 1322, para. 41. Transcript of testimony of witness P-0017, EVD-PT-OTP-06149, at 2187-2188. Transcript of interview of witness P-0017, EVD-PT-OTP-06284, at 0747-0748, EVD-PT-OTP-06285, at 0770-0771. Transcript of interview of witness P-0055, EVD-PT-OTP-06357, at 0858-0859. Statement of witness P-0105, EVD-PT-OTP-00736, at 0385-0386, paras 23-24. Statement of witness P-0127, EVD-PT-OTP-02687, at 0112, para. 28. Statement of witness P-0300, EVD-PT-OTP-06265, at 1323, para. 48; Statement of witness P-0018, EVD-PT-OTP-01816, at 0120-0121, para. 24 (mentioning that the population of Jitchu had already left when she arrived there and that only young Lendu were present to defend the village). DCC, ICC-01/04-02/06-203-AnxA, p. 60.

No. ICC-01/04-02/06 80 9 June 2014

See para. 60. See also Transcript of interview of witness P-0768, EVD-PT-OTP-06491, at 0670-0671, EVD-PT-OTP-06484, at 0515-0517, EVD-PT-OTP-06483, at 0502; Transcript of interview of witness P- 0017, EVD-PT-OTP-06110, at 0558, 0560, 0562. Transcript of interview of witness P-0768, EVD-PT-OTP-06487, at 0581-0582. Summary of statement of witness P-0800, EVD-PT-OTP-06476, at 0643-0644; Transcript of interview of witness P-0017, EVD-PT-OTP-06110, at 0586, EVD-PT-OTP-06149, at 2166-2167. Summary of statement of witness P-0800, EVD-PT-OTP-06476, at 0644. Statement of witness P-0046, EVD-PT-OTP-06242, at 0225, para. 32, at 0229, paras 54-55; Final Report of the MONUC Special Investigation Team on the Abuses Committed in Ituri from January to March 2003, 20 June 2003, EVD-PT-OTP-03424, at 0287, para. 6, at 0303-0304, para. 64. Statement of witness P-0046, EVD-PT-OTP-06242, at 0225, para. 32, at 0229, paras 54-55. See also Statement of witness P-0317, EVD-PT-OTP-06473, at 0294, para. 48; Final Report of the MONUC Special Investigation Team on the Abuses Committed in Ituri from January to March 2003, 20 June 2003, EVD-PT-OTP-03424, at 0303-0304, para. 64; UN Joint Mission Analysis Center Profile of Bosco Tanganda, EVD-PT-OTP-03304, at 0438. Final Report of the MONUC Special Investigation Team on the Abuses Committed in Ituri from January to March 2003, 20 June 2003, EVD-PT-OTP-03424, at 0303-0304, para. 64. DCC, ICC-01/04-02/06-203-AnxA, p. 60. For the elements of the war crime of destroying the enemy’s property, see Pre-Trial Chamber I, “Decision on the confirmation of charges”, 30 September 2008, ICC-01/04-01/07-717, paras 310-314. Transcript of interview of witness P-0768, EVD-PT-OTP-06485, at 0531; Statement of witness P- 0103, EVD-PT-OTP-01884, at 0173-0174, para. 19; Statement of witness P-0804, EVD-PT-OTP-06391, at 1132, para. 18; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0452, para. 102. Human Rights Watch Report, “The Curse of Gold Democratic Republic of Congo”, 2005, EVD-PT- OTP-00781, at 0660. UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT- OTP-00779, at 0452, para. 102; UN Joint Mission Analysis Center Profile of Tanganda, EVD-PT-OTP- 03304, at 0437. Transcript of interview of witness P-0768, EVD-PT-OTP-06486, at 0568-0569; Statement of witness P-0315, EVD-PT-OTP-06363, at 1015, para. 136. Transcript of testimony of witness P-0017, EVD-PT-OTP-06149, at 2166-2167; Transcript of interview of witness P-0768, EVD-PT-OTP-06486, at 0569, at 0578; Statement of witness P-0315, EVD- PT-OTP-06363, at 1015, para. 136. Human Rights Watch Report, “The Curse of Gold Democratic Republic of Congo”, 2005, EVD-PT- OTP-00781, at 0665-0666. Transcript of interview of witness P-0768, EVD-PT-OTP-06486, at 0578; Transcript of interview of witness P-0038, EVD-PT-OTP-06236, at 0134; Summary of statement of witness P-0800, EVD-PT-OTP- 06476, at 0644. Transcript of interview of witness P-0038, EVD-PT-OTP-03728, at 2559. Transcript of testimony of witness P-0017, EVD-PT-OTP-06149, at 2187. Transcript of interview of witness P-0055, EVD-PT-OTP-06506, at 1071-1072. Transcript of interview of witness P-0038, EVD-PT-OTP-03730, at 2635; Statement of witness P- 0105, EVD-PT-OTP-00736, at 0392, para. 52; Statement of witness P-0113, EVD-PT-OTP-01793, at 0043- 0044, para. 36; Investigator’s note on witness P-0121, EVD-PT-OTP-03358, at 0259-0260, para. 10; Statement of witness P-0103, EVD-PT-OTP-01884, at 0179, para. 46. Statement of witness P-0105, EVD-PT-OTP-00736, at 0392, para. 52; Statement of witness P-0113, EVD-PT-OTP-01793, at 0045, para. 41; Statement of witness P-0127, EVD-PT-OTP-02687, at 0112, para. 29; “Rapport des attaques de l’UPC dans les villages Lendu", February-March 2003, EVD-PT-OTP- 00691, at 0003.

No. ICC-01/04-02/06 81 9 June 2014

Analysis of Satellite Imagery for Democratic Republic of Congo: Preliminary Report, EVD-PT-OTP- 06478, at 0340; Transcript of interview of witness P-0055, EVD-PT-OTP-06506, at 1071-1072; Statement of witness P-0113, EVD-PT-OTP-01793, at 0040, para. 22. Statement of witness P-0100, EVD-PT-OTP-01792, at 0024-0025, paras 20-26. Transcript of interview of witness P-0038, EVD-PT-OTP-03730, at 2635; Statement of witness P- 0105, EVD-PT-OTP-00736, at 0390, para. 44. Statement of witness P-0018, EVD-PT-OTP-01816, at 0121, paras 25-27, EVD-PT-OTP-06083, at 0181, para. 51; Statement of witness P-0105, EVD-PT-OTP-00736, at 0390, para. 44. Statement of witness P-0105, EVD-PT-OTP-06325, at 0006, para. 25. Statement of witness P-0113, EVD-PT-OTP-06378, at 1081, para. 38; Statement of witness P-0018, EVD-PT-OTP-06083, at 0182, para. 60. Statement of witness P-0127, EVD-PT-OTP-02687, at 0115, para. 42, EVD-PT-OTP-06267, at 1339, para. 81; Statement of witness P-0105, EVD-PT-OTP-06325, at 0006, para. 25; “Rapport des attaques de l’UPC dans les villages Lendu” written by P-0127, February-March 2003, EVD-PT-OTP-00691, at 0003. Statement of witness P-0127, EVD-PT-OTP-06267, at 1335, para. 44, at 1339, para. 81; Statement of witness P-0105, EVD-PT-OTP-06325, at 0006, para. 25. Statement of witness P-0106, EVD-PT-OTP-01801, at 0081, para. 31. Statement of witness P-0105, EVD-PT-OTP-06325, at 0006, para. 25; Statement of witness P-0113, EVD-PT-OTP-01793, at 0040, para. 22. Statement of witness P-0105, EVD-PT-OTP-06325, at 0006, para. 25. Statement of witness P-0113, EVD-PT-OTP-01793, at 0040, para. 22. Statement of witness P-0105, EVD-PT-OTP-00736, at 0390, para. 44. Final Report of the MONUC Special Investigation Team on the Abuses Committed in Ituri from January to March 2003, 20 June 2003, EVD-PT-OTP-03424, at 0302, para. 59; “Rapport des attaques de l’UPC dans les villages Lendu”, February-March 2003, EVD-PT-OTP-00691, at 0003; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0444, para. 69. Final Report of the MONUC Special Investigation Team on the Abuses Committed in Ituri from January to March 2003, 20 June 2003, EVD-PT-OTP-03424, at 0302, para. 59; “Rapport des attaques de l’UPC dans les villages Lendu”, February-March 2003, EVD-PT-OTP-00691, at 0003; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0444, para. 69. Final Report of the MONUC Special Investigation Team on the Abuses Committed in Ituri from January to March 2003, 20 June 2003, EVD-PT-OTP-03424, at 0302, para. 59; “Rapport des attaques de l’UPC dans les villages Lendu”, February-March 2003, EVD-PT-OTP-00691, at 0003; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0444, para. 69. UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT- OTP-00779, at 0444, para. 69; Final Report of the MONUC Special Investigation Team on the Abuses Committed in Ituri from January to March 2003, 20 June 2003, EVD-PT-OTP-03424, at 0303, para. 63. Statement of witness P-0105, EVD-PT-OTP-00736, at 0392, para. 52; Investigator’s note on witness P-0121, EVD-PT-OTP-03358, at 0259-0260, para. 10. Statement of witness P-0100, EVD-PT-OTP-01792, at 0024-0025, paras 20-26. Statement of witness P-0105, EVD-PT-OTP-00736, at 0392, para. 52. UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT- OTP-00779, at 0428-0429, paras 13 and 15; Statement of witness P-0105, EVD-PT-OTP-00736, at 0387, paras 28-29; Transcript of testimony of witness P-0017, EVD-PT-OTP-06149, at 2186; Statement of witness P-0018, EVD-PT-OTP-01816, at 0119, para. 18. Statement of witness P-0127, EVD-PT-OTP-02687, at 0112, paras 26-29, EVD-PT-OTP-06267, at 1334, para. 39; Statement of witness P-0105, EVD-PT-OTP-00736, at 0387, para. 27.

No. ICC-01/04-02/06 82 9 June 2014

DCC, ICC-01/04-02/06-203-AnxA, para. 108. ICC-01/04-02/06-292-Red2, 14 April 2014, paras 251-263. Elements of Crimes, article 8(2)(e)(vi)-1, elements 1-2, pp 36-37; article 8(2)(e)(vi)-2, element 2, p. 37. For a similar assessment, see: SCSL, Prosecutor v. Charles Ghankay Taylor, Case No. (SCSL-03-01-T), “Judgment”, 30 May 2012, paras 1179, 1206(vii), 1207 and 1451. Statement of witness P-0758, EVD-PT-OTP-06335, at 0196, para. 7; Statement of witness P-0761, EVD-PT-OTP-06223, at 8284, para. 8; Statement of witness P-0773, EVD-PT-OTP-06309, at 0128, para. 9; Statement of witness P-0806, EVD-PT-OTP-06379, at 1089, para. 8; Birth certificates of witness P- 0758, EVD-PT-OTP-06074 and EVD-PT-OTP-06224. Witness P-0758 recalled that she was abducted in July 2002, “on a date and time that [she did] not remember”, Statement of witness P-0758, EVD-PT-OTP-06335, at 0196, para. 8. According to her father’s recollection, she was abducted on 5 August 2002, Statement of witness P-0761, EVD-PT-OTP- 06223, at 8285, para. 12. Statement of witness P-0758, EVD-PT-OTP-06335, at 0197-0198, paras 17-19, at 0200, para. 30, at 2011-2012, paras 106-111. Statement of witness P-0758, EVD-PT-OTP-06335, at 0203, paras 48-49. Statement of witness P-0758, EVD-PT-OTP-06335, at 0201, para. 34, at 0203, para. 51. Statement of witness P-0758, EVD-PT-OTP-06335, at 0203, para. 47. Statement of witness P-0758, EVD-PT-OTP-06335, at 0198, para. 21. Statement of witness P-0758, EVD-PT-OTP-06335, at 0204, para. 55. Transcript of testimony of witness P-0038, EVD-PT-OTP-06183, at 4867-4869; Transcript of interview of witness P-0017, EVD-PT-OTP-04140, at 0021. Transcript of testimony of witness P-0016, EVD-PT-OTP-06139, at 1348; Transcript of interview of witness P-0016, EVD-PT-OTP-06141, at 1449, at 1455-1459. Transcript of testimony of witness P-0016, EVD-PT-OTP-06141, at 1472-1474. Transcript of testimony of witness P-0016, EVD-PT-OTP-06145, at 1795-1797, at 1810. Transcript of testimony of witness P-0016, EVD-PT-OTP-06145, at 1795-1797. “Report on Children associated with armed groups in Ituri”, February 2004, EVD-PT-OTP-03422, at 0261-0262. Pre-Trial Chamber II, Transcript of Hearing, 13 February 2014, ICC-01/04-02/06-T-10-Red-ENG, p. 13, lines 11-24. For the notion of active participation in hostilities, see SCSL, Prosecutor v. Charles Ghankay Taylor, Case No. (SCSL-03-01-T), “Judgment”, 30 May 2012, paras 117-119 and 1357. The term “recruitment” captures both conscription and enlistment. Transcript of testimony of witness P-0055, EVD-PT-OTP-06213, at 7487, lines 9-23. Pre-Trial Chamber II, Transcript of Hearing, 13 February 2014, ICC-01/04-02/06-T-10-Red-ENG, p. 14, line 5 to p. 17, line 4. Pre-Trial Chamber II, Transcript of Hearing, 13 February 2014, ICC-01/04-02/06-T-10-Red-ENG, p. 17, lines 5-25. See Transcript of testimony of witness P-0017, EVD-PT-OTP-06147, at 1961, lines 14-25; Transcript of testimony of witness P-0016, EVD-PT-OTP-06141, at 1462, line 20 to 1463, line 8; Transcript of testimony of witness P-0014, EVD-PT-OTP-06129, at 0514, line 21 to 0515, line 21; Statement of witness P-0290, EVD-PT-OTP-04028, at 0309-0310, paras 18 and 21; Transcript of interview of witness P-0768, EVD-PT-OTP-06485, at 0541, lines 496-506. For the criteria governing the assessment of the age of child soldiers, see Trial Chamber I, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06-2842, para. 643; See also, SCSL, Prosecutor v. Charles Ghankay Taylor, Case No. (SCSL-03-01-T), “Judgment”, 30 May 2012, para. 1361; Prosecutor v. Sesay, Kallon and Ghao, Case No. (SCSL-04-15-T), “Judgment”, 2 March 2009, paras 1627-1628.

No. ICC-01/04-02/06 83 9 June 2014

See Trial Chamber I, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04- 01/06-2842, para. 644. DCC, ICC-01/04-02/06-203-AnxA, paras 92-97 and pp. 59-60. Transcript of interview of witness P-0768, EVD-PT-OTP-06485, at 0546, lines 659-669, EVD-PT- OTP-06491, at 0667, lines 479-484; Statement of witness P-0014, EVD-PT-OTP-03854, at 1036, para. 156; Transcript of testimony of witness P-0014, EVD-PT-OTP-06133, at 0833, line 16 to 0834, line 3, at 0852, lines 3-6. Trial Chamber I, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06- 2842, paras 607-608, and 618; Pre-Trial Chamber I, “Decision on the confirmation of charges”, 29 January 2007, ICC-01/04-01/06-803-tEN, paras 246-248. Transcript of interview of witness P-0055, EVD-PT-OTP-04632, at 0540, line 115 to 0542, line 193. Statement of witness P-0046, EVD-PT-OTP-03812, at 0075-0076, paras 95-98; Transcript of testimony of witness P-0031, EVD-PT-OTP-06171, at 3787, lines 15-22, EVD-PT-OTP-06177, at 4309, lines 16-23. Transcript of testimony of witness P-0014, EVD-PT-OTP-06129, at 0481, line 7 to 0482, line 6, at 0484, line 13 to 0489, line 19, EVD-PT-OTP-06133, at 0824, line 21 to 0829, line 4. Statement of witness P-0046, EVD-PT-OTP-03812, at 0075-0076, paras 98-99; Transcript of testimony of witness P-0031, EVD-PT-OTP-06171, at 3788, lines 13-20; Statement of witness P-0041, EVD-PT- OTP-03268, at 0028, paras 162-164; Statement of witness P-0014, EVD-PT-OTP-03854, at 1036, para. 156. Statement of witness P-0041, EVD-PT-OTP-03268, at 0028, para. 164. Transcript of testimony of witness P-0055, EVD-PT-OTP-06213, at 7487, line 23 to 7489, line 2; Transcript of interview of witness P-0055, EVD-PT-OTP-04636, at 0666, lines 739-742. Transcript of testimony of witness P-0031, EVD-PT-OTP-06171, at 3790, line 9 to 3791, line 16. Transcript of testimony of witness P-0031, EVD-PT-OTP-06171, at 3776, line 19 to 3777, line 21, at 3786, line 17 to 3787, line 14, at 3791, lines 14-16. Witness P-0758 recalled that she was abducted in July 2002, “on a date and time that [she did] not remember”, Statement of witness P-0758, EVD-PT-OTP-06335, at 0196, para. 8. According to her father’s recollection, she was abducted on 5 August 2002, Statement of witness P-0761, EVD-PT-OTP- 06223, at 8285, para. 12. Statement of witness P-0758, EVD-PT-OTP-06335, at 0196, para. 7; Statement of witness P-0761, EVD-PT-OTP-06223, at 8284, para. 8; Statement of witness P-0773, EVD-PT-OTP-06309, at 0128, para. 9; Statement of witness P-0806, EVD-PT-OTP-06379, at 1089, para. 8; Birth certificates of witness P-0758, EVD-PT-OTP-06074 and EVD-PT-OTP-06224. Statement of witness P-0758, EVD-PT-OTP-06335, at 0196, para. 8, at 0197, para. 14, at 0199, paras 25 and 28. Statement of witness P-0758, EVD-PT-OTP-06335, at 0213, paras 113-115. Witness P-0758 states that she remained with the UPC/FPLC until “the arrival of the French troops”. The Chamber understands this to refer to the arrival of the Operation Artemis contingent. According to “Report on Children associated with armed groups in Ituri”, February 2004, EVD-PT- OTP-03422, at 0262, the Artemis Operation began in July 2003. MONUC Report, “Histoires Individuelles – Bunia (Ituri) : Enfants – Soldats”, EVD-PT-OTP-03423, at 0282, para. 30. Human Rights Watch Report, “Ituri: ‘Covered in Blood’: Ethnically Targeted Violence in Northeastern DR Congo”, July 2003, EVD-PT-OTP-00782, at 0851. Transcript of testimony of witness P-0046, EVD-PT-OTP-06203, at 6768, lines 6-11. Statement of witness P-0046, EVD-PT-OTP-03812, at 0068, para. 68. Statement of witness P-0046, EVD-PT-OTP-03812, at 0069, para. 70. MONUC Report, “Investigation Mission – Ituri: Child soldiers issues”, EVD-PT-OTP-04854, at 0771-0772, reference 20. Transcript of testimony of witness P-0016, EVD-PT-OTP-06141, at 1461, line 17 to 1462, line 3.

No. ICC-01/04-02/06 84 9 June 2014

MONUC Report, “Individual Case Story – Bunia (Ituri)”, 26 March 2003, EVD-PT-OTP-05006, at 0297, reference 42. MONUC Report, “Histoires Individuelles – Bunia (Ituri): Enfants – Soldats”, EVD-PT-OTP-03423, at 0280, reference 26. MONUC Report, “Individual Case Story – Bunia (Ituri)”, 26 March 2003, EVD-PT-OTP-05006, at 0340-0341, reference 160. MONUC Report, “Individual Case Story – Bunia (Ituri)”, 26 March 2003, EVD-PT-OTP-05006, at 0340-0341, reference 160. See also Statement of witness P-0046, EVD-PT-OTP-06242, at 0240, para. 112. Transcript of testimony of witness P-0046, EVD-PT-OTP-06203, at 6725, line 22 to 6726, line 5. Transcript of interview of witness P-0768, EVD-PT-OTP-06430, at 1788, at 1793-1795; Photograph, EVD-PT-OTP-06344. Transcript of testimony of witness P-0016, EVD-PT-OTP-06141, at 1461, line 4 to 1463, line 8, at 1470, line 6 to 1471, line 15; Transcript of testimony of witness P-0017, EVD-PT-OTP-06147, at 1960, line 4 to 1961, line 25; Transcript of interview of witness P-0768, EVD-PT-OTP-06485, at 0541, line 487 to 0543, line 575; Statement of witness P-0046, EVD-PT-OTP-06242, at 0242-0243, paras 124-125; Human Rights Watch Report, “Ituri: ‘Covered in Blood’: Ethnically Targeted Violence in Northeastern DR Congo”, July 2003, EVD-PT-OTP-00782, at 0851; MONUC Report, “Individual Case Story – Bunia (Ituri)”, 26 March 2003, EVD-PT-OTP-05006, at 0303, reference 58, at 0307, reference 70, at 0313, reference 94; MONUC Report, “Report on Child Soldiers in Ituri: Notes on Training – Military Camps”, EVD-PT-OTP-03421, at 0251-0252. Transcript of interview of witness P-0055, EVD-PT-OTP-04632, at 0558, line 810 to 0559, line 848; Transcript of testimony of witness P-0031, EVD-PT-OTP-06173, at 3978, line 9 to 3982, line 12, EVD- PT-OTP-06175, at 4189, line 22 to 4192, line 16; Video Material, EVD-PT-OTP-02612, at 00:01:14- 00:01:17, 00:02:10-00:02:40, 00:02:50-00:02:55, 00:05:08-00:05:10, 00:09:09-00:09:11, 00:10:08-00:10:16, 00:11:33-00:12:03, 00:16:26 and 00:17:07-00:17:09; Statement of witness P-0030, EVD-PT-OTP-06161, at 2979, line 5 to 2981, line 20, at 2986, lines 4-11; Human Rights Watch Report, “Ituri: ‘Covered in Blood’: Ethnically Targeted Violence in Northeastern DR Congo”, July 2003, EVD-PT-OTP-00782, at 0851. Statement of witness P-0758, EVD-PT-OTP-06335, at 0199-0211, paras 23-104. Transcript of testimony of witness P-0017, EVD-PT-OTP-06147, at 1965, line 11 to 1966, line 3, at 1961, lines 12-13; Transcript of testimony of witness P-0038, EVD-PT-OTP-06183, at 4854, line 21 to 4855, line 14. Transcript of testimony of witness P-0038, EVD-PT-OTP-06183, at 4855, lines 6-14; Statement of witness P-0016, EVD-PT-OTP-02701, at 0465-0466, para. 253; Transcript of interview of witness P- 0768, EVD-PT-OTP-06485, at 0543, lines 575-576. Statement of witness P-0014, EVD-PT-OTP-03854, at 1037-1039, paras 163-172; Transcript of testimony of witness P-0014, EVD-PT-OTP-06129, at 0490, lines 21-25, at 0511, line 4 to 0512, line 7. Statement of witness P-0290, EVD-PT-OTP-04028, at 0308-0310, paras 12-13, 18, 21-24, at 0307-0308, paras 6 and 9. Transcript of interview of witness P-0055, EVD-PT-OTP-04633, at 0586, line 645 to 0589, line 751; Transcript of testimony of witness P-0016, EVD-PT-OTP-06141, at 1503, line 9 to 1506, line 13; Statement of witness P-0758, EVD-PT-OTP-06335, at 0205, para. 64, at 0206, para. 69. G5 represented the political commissioner of the UPC/FPLC concerned with relations between soldiers and civilians, and morale issues (Transcript of testimony of witness P-0017, EVD-PT-OTP- 06147, at 1944, lines 12-13; Transcript of interview of witness P-0055, EVD-PT-OTP-04623, at 0335. UPC/FPLC letter, dated 12 February 2003, EVD-PT-OTP-02545. According to certain witnesses, the term “kadogo” was used in the UPC/FPLC to refer to soldiers who were children; See Transcript of interview of witness P-0055, EVD-PT-OTP-04633, at 0569, lines 46-54; Transcript of interview of witness P-0768, EVD-PT-OTP-06430, at 1798, lines 480-490. With reference to the “Kadogo Unit” specifically, witness P-0017 stated that the persons in the unit “were

No. ICC-01/04-02/06 85 9 June 2014 kadogos. They were less than 15 years old”; Transcript of testimony of witness P-0017, EVD-PT-OTP- 06151, at 2313, line 6. Transcript of testimony of witness P-0017, EVD-PT-OTP-06151, at 2312, line 17 to 2314, line 5,at 2315, lines 23-24. UPC/FPLC order, dated 21 October 2002, EVD-PT-OTP-00344. UPC/FPLC order, dated 27 January 3003, EVD-PT-OTP-00345. UPC/FPLC decree, dated 1 June 2003, EVD-PT-OTP-03404. Transcript of testimony of witness P-0046, EVD-PT-OTP-06193, at 5847, line 15 to 5850, line 8; Transcript of testimony of witness P-0031, EVD-PT-OTP-06171, at 3801, lines 10-16. Transcript of testimony of witness P-0024, EVD-PT-OTP-06157, at 2650, line 15 to 2652, line 11. Transcript of testimony of witness P-0017, EVD-PT-OTP-06151, at 2342, line 13 to 2345, line 23. Statement of witness P-0046, EVD-PT-OTP-06193, at 5847, line 15 to 5850, line 8; Statement of witness P-0031, EVD-PT-OTP-06171, at 3801, lines 10-16; Transcript of testimony of witness P-0024, EVD-PT-OTP-06157, at 2650, line 15 to 2652, line 11. Transcript of testimony of witness P-0017, EVD-PT-OTP-06147, at 1999, line 19 to 2000, line 3, at 2001, line 7 to 2002, line 8; Transcript of testimony of witness P-0046, EVD-PT-OTP-06201, at 6639, line 2 to 6640, line 23, EVD-PT-OTP-06203, at 6724, line 22 to 6726, line 5; Statement of witness P-0041, EVD-PT-OTP-03268, at 0028, para. 167; Transcript of interview of witness P-0768, EVD-PT-OTP-06485, at 0541, line 487 to 0542, line 527; Photograph, EVD-PT-OTP-06344; Transcript of interview of witness P-0768, EVD-PT-OTP-06491, at 0658, lines 147-175, at 0662, lines 287-303, at 0663, line 324 to 0664, line 395; Video Material, EVD-PT-OTP-02612, at 00:06:56-00:07:01. Transcript of testimony of witness P-0031, EVD-PT-OTP-06171, at 3766, line 24 to 3767, line 3, EVD- PT-OTP-06175, at 4151-4163; Logbook, EVD-PT-OTP-03652. DCC, ICC-01/04-02/06-203-AnxA, paras 98-99 and p. 60. For the notion of using children under the age of 15 years to participate actively in hostilities, see Trial Chamber I, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06- 2842, paras 619-628; Trial Chamber II, “Jugement rendu en application de l’article 74 du Statut”, 7 March 2014, ICC-01/04-01/07-3436, paras 1043-1046. For the notion of using children under the age of 15 years as support for combatants, see Trial Chamber I, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06-2842, paras 621, 627-628. See also Pre-Trial Chamber I, “Decision on the confirmation of charges”, 29 January 2007, ICC-01/04-01/06-803-tEN, paras 261-263. For the notion of using children under the age of 15 years as military guards, see Trial Chamber I, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06-2842, paras 835-838, 915-916. For the notion of using children under the age of 15 years as informants, see Pre-Trial Chamber I, “Decision on the confirmation of charges”, 29 January 2007, ICC-01/04-01/06-803-tEN, para. 261. For the notion of using children under the age of 15 years as escorts or bodyguards, see Trial Chamber I, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06-2842, paras 839-869, 915-916. Statement of witness P-0046, EVD-PT-OTP-06242, at 0240-0241, para. 114. Transcript of testimony of witness P-0017, EVD-PT-OTP-06151, at 2307, line 14 to 2309, line 20; Statement of witness P-0290, EVD-PT-OTP-04028, at 0312, para. 33. Transcript of testimony of witness P-0012, EVD-PT-OTP-06125, at 0146, line 1 to 0150, line 11. Statement of witness P-0046, EVD-PT-OTP-06242, at 0245, para. 138. Statement of witness P-0046, EVD-PT-OTP-06242, at 0239, para. 110. P-0046 states that the child she interviewed said he had fought “at Zumbe in September 2002 against the FNI Lendu militia”. The Chamber understands this to refer to the 15-16 October 2002 attack on Zumbe.

No. ICC-01/04-02/06 86 9 June 2014

Statement of witness P-0046, EVD-PT-OTP-06242, at 0240, para. 112, at 0244, para. 131 (see also MONUC Report, “Individual Case Story – Bunia (Ituri)”, 26 March 2003, EVD-PT-OTP-05006, at 0316, reference 104). Transcript of testimony of witness P-0038, EVD-PT-OTP-06181, at 4753, line 13 to 4754, line 3; Transcript of interview of witness P-0768, EVD-PT-OTP-06491, at 665, line 408 to 666, line 446; Statement of witness P-0046, EVD-PT-OTP-06242, at 0241-0242, paras 119 and 121, at 0244, para. 131, at 0244-0245, para. 135. Statement of witness P-0046, EVD-PT-OTP-06242, at 0240, para. 113. Statement of witness P-0046, EVD-PT-OTP-06242, at 0242-0243, para. 124. Statement of witness P-0046, EVD-PT-OTP-06242, at 0235, para. 87. Statement of witness P-0014, EVD-PT-OTP-03854, at 1041, paras 183-184; Transcript of testimony of witness P-0014, EVD-PT-OTP-06129, at 0512, lines 5-18. Transcript of testimony of witness P-0024, EVD-PT-OTP-06157, at 2668, lines 16-17, at 2671, line 18 to 2675, line 8. Statement of witness P-0758, EVD-PT-OTP-06335, at 0211, para. 106. Statement of witness P-0758, EVD-PT-OTP-06335, at 0212, para. 112, at 0213, para. 113. Transcript of testimony of witness P-0038, EVD-PT-OTP-06181, at 4737, lines 5-20; Transcript of testimony of witness P-0041, EVD-PT-OTP-06187, at 5252, line 15 to 5254, line 25; Transcript of testimony of witness P-0046, EVD-PT-OTP-06193, at 5816, line 6 to 5817, line 22. Statement of witness P-0290, EVD-PT-OTP-04028, at 0311, para. 28, at 0318-0319, paras 76-77; Transcript of interview of witness P-0768, EVD-PT-OTP-06491, at 0665, lines 408-432; Transcript of testimony of witness P-0017, EVD-PT-OTP-06151, at 2307, line 14 to 2309, line 10; Statement of witness P-0041, EVD-PT-OTP-03268, at 0029, para. 173; Transcript of testimony of witness P-0030, EVD-PT- OTP-06161, at 2974, lines 1-12. Statement of witness P-0014, EVD-PT-OTP-03854, at 1040, para. 179. Statement of witness P-0290, EVD-PT-OTP-04028, at 0318-0319, paras 76-77, at 0308, para. 9, at 0313, para. 43. Transcript of interview of witness P-0768, EVD-PT-OTP-06491, at 0666, lines 434-446. Statement of witness P-0057, EVD-PT-OTP-03366, at 0365, para. 52; Transcript of testimony of witness P-0016, EVD-PT-OTP-06141, at 1481, line 22 to 1482, line 15; Statement of witness P-0041, EVD-PT-OTP-03268, at 0029, para. 173; Statement of witness P-0014, EVD-PT-OTP-03854, at 1039- 1040, paras 176-177; Transcript of testimony of witness P-0017, EVD-PT-OTP-06151, at 2312, line 17 to 2314, line 16; Statement of witness P-0041, EVD-PT-OTP-03268, at 0029, para. 173; Transcript of testimony of witness P-0041, EVD-PT-OTP-06187, at 5246, line 25 to 5248, line 21; Transcript of testimony of witness P-0030, EVD-PT-OTP-06161, at 2974, lines 1-12; Transcript of testimony of witness P-0031, EVD-PT-OTP-06171, at 3798, line 19 to 3800, line 22. Transcript of testimony of witness P-0031, EVD-PT-OTP-06171, at 3794, line 4 to 4796, line 20; Transcript of testimony of witness P-0046, EVD-PT-OTP-06193, at 5841, lines 8-18, at 5842, line 24 to 5844, line 5; Transcript of testimony of witness P-0030, EVD-PT-OTP-06161, at 2969, line 11 to 2972, line 18, at 2958, lines 6-15. DCC, ICC-01/04-02/06-203-AnxA, para. 109 and pp 56-60. DCC, ICC-01/04-02/06-203-AnxA, para. 110. ICC-01/04-02/06-292-Red2, paras 338-346; Pre-Trial Chamber II, Transcript of Hearing, 13 February 2014, ICC-01/04-02/06-T-10-Red-ENG, pp 34-36. Pre-Trial Chamber II, “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, 23 January 2012, ICC-01/09-01/11-373, paras 284-285; Pre-Trial Chamber II, "Decision on the Prosecutor's Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang", 8 March 2011, ICC-01/09-01/11-1, para. 36. DCC, ICC-01/04-02/06-203-AnxA, pp 56-60. See paras 40-43.

No. ICC-01/04-02/06 87 9 June 2014

ICC-01/04-02/06-292-Red2, paras 387-389. For the objective elements of indirect co-perpetration, see Pre-Trial Chamber II, “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, 23 January 2012, ICC-01/09-01/11-373, paras 292, 333. For the notion of element of criminality of the common plan, see Pre-Trial Chamber I, “Decision on the confirmation of charges”, 29 January 2007, ICC-01/04-01/06-803-tEN, para. 344; Pre-Trial Chamber II, “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, 23 January 2012, ICC-01/09-01/11-373, para. 301; Pre-Trial Chamber II, “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, 23 January 2012, ICC-01/09- 02/11-382-Red, para. 399. Statement of witness P-0012, EVD-PT-OTP-01890, at 0106, para. 118, at 0107, paras 123-124. MONUC Report, “Individual Case Story – Bunia (Ituri)”, 26 March 2003, EVD-PT-OTP-05006, at 0320 (the reference to “Commander Bosco” is to Bosco Ntaganda. See: Statement of witness P-0046, EVD-PT-OTP-06242, at 0238-0239, paras 104-105, at 0241, para. 117); “Compte rendu des entretiens avec camp Ndoromo, Bunia, RDC, les 14, 15 et 16 Avril 2004”, EVD-PT-OTP-04905, at 0310; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16 July 2004, EVD-PT-OTP-00779, at 0439, para. 47; UN Joint Mission Analysis Centre Profile of Bosco Tanganda, EVD-PT-OTP-03304, at 0437. Transcript of interview of witness P-0012, EVD-PT-OTP-06125, at 0118; Transcript of interview of witness P-0055, EVD-PT-OTP-04623, at 0336 – 0337. Statement of witness P-0005, EVD-PT-OTP-04084, at 0088, paras 148-152. Statement of witness P-0016, EVD-PT-OTP-02701, at 0441, para. 103; Transcript of testimony of witness P-0016, EVD-PT-OTP-06141, at 1530-1532; Statement of witness P-0290, EVD-PT-OTP-04028, at 0314, para. 50. Statement of witness P-0014, EVD-PT-OTP-03854, at 1028, para. 119. Transcript of interview of witness P-0055, EVD-PT-OTP-04642, at 0768-0770. Transcript of interview of witness P-0055, EVD-PT-OTP-04625, at 0397. Transcript of interview of witness P-0055, EVD-PT-OTP-04642, at 0768. Transcript of interview of witness P-0055, EVD-PT-OTP-06505, at 1046. Transcript of interview of witness P-0768, EVD-PT-OTP-06428, at 1753-1755, EVD-PT-OTP-06483, at 0493-0494; Transcript of interview of witness P-0017, EVD-PT-OTP-04144, at 0083, EVD-PT-OTP- 06111, at 0596-0597; Transcript of interview of witness P-0038, EVD-PT-OTP-06239, at 0173. Transcript of interview of witness P-0055, EVD-PT-OTP-06505, at 1051-1055, EVD-PT-OTP-06507, at 1099-1100; Transcript of interview of witness P-0290, EVD-PT-OTP-06413, at 1392; Logbook Message, EVD-PT-OTP-03975, at 1065 (first message on the page). For the notion of concerted action, see Pre-Trial Chamber I, “Decision on the confirmation of charges”, 29 January 2007, ICC-01/04-01/06-803-tEN, para. 345; Pre-Trial Chamber II, “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, 23 January 2012, ICC-01/09-01/11-373, para. 301; Pre-Trial Chamber II, “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, 23 January 2012, ICC-01/09-02/11-382-Red, para. 399. Pre-Trial Chamber II, Transcript of Hearing, 13 February 2014, ICC-01/04-02/06-T-10-Red-ENG, p. 38; Also: ICC-01/04-02/06-292-Red2, para. 356. For the notion of essential contribution, see Pre-Trial Chamber II, “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, 23 January 2012, ICC-01/09-01/11- 373, para. 308; Pre-Trial Chamber II, “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, 23 January 2012, ICC-01/09-02/11-382-Red, para. 404. Transcript of testimony of witness P-0016, EVD-PT-OTP-06141, at 1454. See para. 129. DCC, ICC-01/04-02/06-203-AnxA, pp 56-59.

No. ICC-01/04-02/06 88 9 June 2014

DCC, ICC-01/04-02/06-203-AnxA, pp 56-60. For the notion of coordinating role, see Pre-Trial Chamber I, “Decision on the confirmation of charges”, 30 September 2008, ICC-01/04-01/07-717, para. 526; Pre-Trial Chamber II, “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, 23 January 2012, ICC-01/09-01/11-373, para. 306; Pre-Trial Chamber II, “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, 23 January 2012, ICC-01/09-02/11-382-Red, para. 402. Transcript of interview of witness P-0768, EVD-PT-OTP-06482, at 0470-0471; Transcript of interview of witness P-0055, EVD-PT-OTP-06502, at 0947-0948. Transcript of interview of witness P-0768, EVD-PT-OTP-06483, at 0486-0488. Transcript of interview of witness P-0768, EVD-PT-OTP-06483, at 0487. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0100. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0093-0094. Transcript of interview of witness P-0055, EVD-PT-OTP-06505, at 1027. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0093-0094; Transcript of interview of witness P-0055, EVD-PT-OTP-06505, at 1027-1028; Transcript of interview of witness P- 0017, EVD-PT-OTP-06107, at 0502-0504. Transcript of interview of witness P-0017, EVD-PT-OTP-06107, at 0503-0504; Transcript of interview of witness P-0055, EVD-PT-OTP-06505, at 1028. Transcript of interview of witness P-0768, EVD-PT-OTP-06482, at 0469. Transcript of interview of witness P-0768, EVD-PT-OTP-06483, at 0480-0481; Transcript of interview of witness P-0017, EVD-PT-OTP-06111, at 0596-0597; Transcript of interview of witness P- 0038, EVD-PT-OTP-06239, at 0173. Transcript of interview of witness P-0017, EVD-PT-OTP-06106, at 0482; Transcript of interview of witness P-0038, EVD-PT-OTP-06239, at 0173-0174. Transcript of interview of witness P-0768, EVD-PT-OTP-06428, at 1753-1755; Transcript of interview of witness P-0017, EVD-PT-OTP-04144, at 0083; Transcript of interview of witness P-0038, EVD-PT-OTP-06239, at 0173. Transcript of interview of witness P-0768, EVD-PT-OTP-06483, at 0493-0494; Transcript of interview of witness P-0017, EVD-PT-OTP-06111, at 0596-0597. Transcript of interview of witness P-0768, EVD-PT-OTP-06425, at 1703-1704, EVD-PT-OTP-06483, at 0499, EVD-PT-OTP-06486, at 0565-0568. Transcript of interview of witness P-0768, EVD-PT-OTP-06423, at 1652-1653, EVD-PT-OTP-06484, at 0517. Transcript of interview of witness P-0768, EVD-PT-OTP-06485, at 0532. Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0515. Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0509-0510. Transcript of interview of witness P-0017, EVD-PT-OTP-06107, at 0522-0524. Transcript of interview of witness P-0768, EVD-PT-OTP-06486, at 0574. DCC, ICC-01/04-02/06-203-AnxA, pp 56-59. DCC, ICC-01/04-02/06-203-AnxA, pp 56-60. For the notion of coordinating role, see Pre-Trial Chamber I, “Decision on the confirmation of charges”, 30 September 2008, ICC-01/04-01/07-717, para. 526; Pre-Trial Chamber II, “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, 23 January 2012, ICC-01/09-01/11-373, para. 306; Pre-Trial Chamber II, “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, 23 January 2012, ICC-01/09-02/11-382-Red, para. 402. Transcript of interview of witness P-0055, EVD-PT-OTP-04642, at 0768-0769. Transcript of interview of witness P-0055, EVD-PT-OTP-06505, at 1051. Transcript of interview of witness P-0055, EVD-PT-OTP-06505, at 1051-1053.

No. ICC-01/04-02/06 89 9 June 2014

Transcript of interview of witness P-0055, EVD-PT-OTP-06505, at 1053-1055. Transcript of interview of witness P-0290, EVD-PT-OTP-06413, at 1392-1393; Logbook message, EVD-PT-OTP-03975, at 1065 (first message from the top). See para. 111. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0101. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0093. Transcript of interview of witness P-0038, EVD-PT-OTP-06236, at 0143; Transcript of interview of witness P-0055, EVD-PT-OTP-06356, at 0823-0824. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0093-0094; Transcript of interview of witness P-0055, EVD-PT-OTP-06505, at 1027-1028; Transcript of interview of witness P- 0017, EVD-PT-OTP-06107, at 0502-0504. DCC, ICC-01/04-02/06-203-AnxA, pp 57-60. See paras 83-96. See paras 81-82. Transcript of interview of witness P-0768, EVD-PT-OTP-06430, at 1792; Statement of witness P- 0041, EVD-PT-OTP-03268, at 0028, para. 166. Transcript of testimony of witness P-0014, EVD-PT-OTP-06129, at 0490-0491; Transcript of interview of witness P-0768, EVD-PT-OTP-06485, at 0544. See paras 89-90. Statement of witness P-0014, EVD-PT-OTP-03854, at 1037, paras 162-163, at 1038, para. 168. Transcript of testimony of witness P-0016, EVD-PT-OTP-06141, at 1455-1457, 1459, 1466. Statement of witness P-0758, EVD-PT-OTP-06335, at 0196, para. 8, at 0203, para. 48, at 0204, para. 59, at 0205, para. 63. Transcript of Video Material, EVD-PT-OTP-02615, at 0306-0307. Transcript of testimony of witness P-0031, EVD-PT-OTP-06175, at 4190-4191. Statement of witness P-0014, EVD-PT-OTP-03854, at 1038, para. 168. Statement of witness P-0758, EVD-PT-OTP-06335, at 0205, para. 63; Transcript of Video Material, EVD-PT-OTP-02615, at 0306-0307. Statement of witness P-0758, EVD-PT-OTP-06335, at 0205, para. 63. Statement of witness P-0758, EVD-PT-OTP-06335, at 0205, para. 63. Statement of witness P-0290, EVD-PT-OTP-04028, at 0308-0309, paras 8, 9, 12, 13. Transcript of interview of witness P-0055, EVD-PT-OTP-04633, at 0569-0570, 0586-0589. Transcript of interview of witness P-0055, EVD-PT-OTP-04633, at 0587-0588. See paras 14-18. Transcript of testimony of witness P-0038, EVD-PT-OTP-06183, at 4871-4872; Transcript of interview of witness P-0038, EVD-PT-OTP-06236, at 0138-0139; Transcript of testimony of witness P- 0055, EVD-PT-OTP-06213, at 7484-7485; Transcript of testimony of witness P-0017, EVD-PT-OTP- 06149, at 2174-2175; Transcript of testimony of witness P-0014, EVD-PT-OTP-06133, at 0830-0833; Transcript of interview of witness P-0768, EVD-PT-OTP-06485, at 0547. For the notion of fungible individuals capable of being replaced by others, see Pre-Trial Chamber I, “Decision on the confirmation of charges”, 30 September 2008, ICC-01/04-01/07-717, para. 516. Trial Chamber I, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06- 2842, para. 1214; Transcript of testimony of witness P-0012, EVD-PT-OTP-06125, at 0118; Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0092; Diagram by witness P-0005, “Structure et organisation de l’UPC” EVD-PT-OTP-04085. “Déclaration militaire des FPLC”, 6 December 2003, EVD-PT-OTP-00253, at 0136; MONUC, “L’UPC responsable des attaques contre la Brigade de l’Ituri”, 22 January 2004, EVD-PT-OTP-03477, at 0648.

No. ICC-01/04-02/06 90 9 June 2014

Statement of witness P-0315, EVD-PT-OTP-06363, at 1013, para. 128; Statement of witness P-0014, EVD-PT-OTP-03854, at 1028, para. 119; Statement of witness P-0016, EVD-PT-OTP-02701, at 0434, paras 63-65, at 0453-0454, para. 181. Transcript of interview of witness P-0055, EVD-PT-OTP-04623, at 0349; Transcript of interview of witness P-0017, EVD-PT-OTP-06106, at 0472; Statement of witness P-0016, EVD-PT-OTP-02701, at 0434, para. 65; Statement of witness P-0315, EVD-PT-OTP-06363, at 1013, para. 128. Transcript of testimony of witness P-0055, EVD-PT-OTP-06213, at 7493; Transcript of interview of witness P-0055, EVD-PT-OTP-06503, at 0976-0978; Statement of witness P-0012, EVD-PT-OTP-01890, at 0117-0118, para. 176; Statement of witness P-0016, EVD-PT-OTP-02701, at 0455-0456, paras 194-197. Transcript of interview of witness P-0055, EVD-PT-OTP-04624, at 0372; Logbook messages, EVD- PT-OTP-03975, at 1075 (first message on the page), at 1099 (third message on the page), at 1106 (first message on the page), at 1107 (second message on the page). Transcript of interview of witness P-0038, EVD-PT-OTP-03725, at 2489-2490; Logbook message, EVD-PT-OTP-03975, at 1070 (third message on the page). Logbook messages, EVD-PT-OTP-03975, at 1099 (first two messages on the page); Letter from Mr. Ntaganda, 6 August 2003, EVD-PT-OTP-04059, at 0518. Statement of witness P-0046, EVD-PT-OTP-06242, at 0239, para. 106; MONUC Report, “Individual Case Story – Bunia (Ituri)”, 26 March 2003, EVD-PT-OTP-05006, at 0290. Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0519-0522; Transcript of interview of witness P-0038, EVD-PT-OTP-06239, at 0165-0167. For the subjective elements of indirect co-perpetration, see Pre-Trial Chamber II, “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, 23 January 2012, ICC-01/09-01/11-373, paras 292, 333. See Section C. This subjective element concerns the discriminatory intent for the crime against humanity of persecution. For the notion of dolus directus in the first degree, see Pre-Trial Chamber II, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo”, 15 June 2009, ICC-01/05-01/08-424, paras 357-358. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0100; Transcript of interview of witness P-0768, EVD-PT-OTP-06425, at 1703-1704, EVD-PT-OTP-06483, at 0499, EVD-PT-OTP-06486, at 0565-0568, 0574; Transcript of interview of witness P-0017, EVD-PT-OTP-06107, at 0522-0524. Transcript of interview of witness P-0768, EVD-PT-OTP-06482, at 0469. Transcript of interview of witness P-0768, EVD-PT-OTP-06423, at 1652-1653, EVD-PT-OTP-06484, at 0517. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0093-0094. Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0509-0510. For the notion of dolus directus in the second degree, see Pre-Trial Chamber II, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo”, 15 June 2009, ICC-01/05-01/08-424, paras 357, 359. Transcript of interview of witness P-0055, EVD-PT-OTP-04625, at 0397, EVD-PT-OTP-04642, at 0768-0770, EVD-PT-OTP-06505, at 1046. Transcript of interview of witness P-0055, EVD-PT-OTP-06505, at 1051-1053, EVD-PT-OTP-06507, at 1100; Transcript of interview of witness P-0290, EVD-PT-OTP-06413, at 1392; Logbook message, EVD-PT-OTP-03975, at 1065 (first message on the page). Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0101, EVD-PT-OTP-06236, at 0143; Transcript of interview of witness P-0055, EVD-PT-OTP-06356, at 0823-0824. Transcript of interview of witness P-0055, EVD-PT-OTP-06506, at 1072; Statement of witness P- 0019, EVD-PT-OTP-02447, at 0144, para. 16; Statement of witness P-0105, EVD-PT-OTP-00736, at 0386- 0387, paras 24, 28-29; UN SC Special Report on the events in Ituri, January 2002-December 2003, 16

No. ICC-01/04-02/06 91 9 June 2014

July 2004, EVD-PT-OTP-00779, at 0428, para. 13; Human Rights Watch Report, “Ituri: ‘Covered in Blood’, Ethnically Targeted Violence in Northeastern DR Congo”, July 2003, EVD-PT-OTP-00782, at 0817, 0822; Human Rights Watch Report, “The Curse of Gold Democratic Republic of Congo”, 2005, EVD-PT-OTP-00781, at 0660. See para. 68. Transcript of interview of witness P-0768, EVD-PT-OTP-06483, at 0501; Transcript of interview of witness P-0017, EVD-PT-OTP-06110, at 0580-0582. See Section B. These crimes are: intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities (count 3); pillaging a town or place, even when taken by assault (count 11); and intentionally 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 (count 17). See paras. 111-112. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0100; Transcript of interview of witness P-0768, EVD-PT-OTP-06425, at 1703-1704, EVD-PT-OTP-06483, at 0499, EVD-PT-OTP-06484, at 0517, EVD-PT-OTP-06486, at 0565-0568, 0574; Transcript of interview of witness P-0017, EVD-PT- OTP-06107, at 0522-0524. Transcript of interview of witness P-0768, EVD-PT-OTP-06482, at 0469, EVD-PT-OTP-06484, at 0517. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0093-0094; Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0509-0510. Transcript of interview of witness P-0768, EVD-PT-OTP-06425, at 1703-1704, EVD-PT-OTP-06483, at 0499, EVD-PT-OTP-06486, at 0565-0568. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0093-0094; Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0515, EVD-PT-OTP-06485, at 0532. Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0515. Transcript of interview of witness P-0768, EVD-PT-OTP-06425, at 1703; Transcript of interview of witness P-0017, EVD-PT-OTP-06110, at 0572-0573. See para. 113-114. Transcript of interview of witness P-0768, EVD-PT-OTP-06423, at 1653, EVD-PT-OTP-06425, at 1703-1704, EVD-PT-OTP-06483, at 0499, EVD-PT-OTP-06484, at 0517, EVD-PT-OTP-06486, at 0565- 0568. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0093-0094. See para. 68. Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0515. See para. 58. See paras 72-73. See para. 112. See para. 114. Transcript of interview of witness P-0768, EVD-PT-OTP-06423, at 1653, EVD-PT-OTP-06425, at 1703-1704, EVD-PT-OTP-06483, at 0499, EVD-PT-OTP-06484, at 0517, EVD-PT-OTP-06486, at 0565- 0568. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0093-0094. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0093-0094. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0093-0094; Transcript of interview of witness P-0055, EVD-PT-OTP-06505, at 1026-1028; Transcript of interview of witness P- 0017, EVD-PT-OTP-06107, at 0502-0504. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0093-0094; Transcript of interview of witness P-0017, EVD-PT-OTP-06107, at 0502-0504.

No. ICC-01/04-02/06 92 9 June 2014

Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0515. See Section B. For the mens rea applicable to article 8(2)(e)(vii) of the Statute, see Pre-Trial Chamber I, “Decision on the confirmation of charges”, 29 January 2007, ICC-01/04-01/06-803-tEN, para. 359. Transcript of interview of witness P-0768, EVD-PT-OTP-06430, at 1792; Statement of witness P- 0041, EVD-PT-OTP-03268, at 0028, para. 166. Transcript of testimony of witness P-0014, EVD-PT-OTP-06129, at 0490-0491; Transcript of interview of witness P-0768, EVD-PT-OTP-06485, at 0544. Transcript of interview of witness P-0055, EVD-PT-OTP-04633, at 0569-0570, 0586-0587. See paras 85-96. For the mens rea applicable to article 8(2)(e)(vii) of the Statute, see Pre-Trial Chamber I, “Decision on the confirmation of charges”, 29 January 2007, ICC-01/04-01/06-803-tEN, para. 359. Statement of witness P-0014, EVD-PT-OTP-03854, at 1037, paras 162-163, at 1038, para. 168; Statement of witness P-0758, EVD-PT-OTP-06335, at 0196, para. 8, at 0203, para. 48, at 0204, para. 59, at 0205, para. 63; Transcript of testimony of witness P-0016, EVD-PT-OTP-06141, at 1466, 1469-1471; Transcript of testimony of witness P-0031, EVD-PT-OTP-06175, at 4190-4191; Transcript of Video Material, EVD-PT-OTP-02615, at 0306-0307. See paras 81-82. Transcript of interview of witness P-0038, EVD-PT-OTP-06241, at 0204-0205; Transcript of interview of witness P-0768, EVD-PT-OTP-06485, at 0548-0551. See paras 105-106. See para. 106. See paras 122-134. See para. 120. See paras 110-117. For the objective element of direct perpetration, see Pre-Trial Chamber I, “Decision on the confirmation of charges”, 29 January 2007, ICC-01/04-01/06-803-tEN, para. 332. See paras 122, 127. Pre-Trial Chamber II, Transcript of Hearing, 11 February 2014, ICC-01/04-02/06-T-8-Red-ENG, pp 4-17 (counts 1-3 and 12-13); Pre-Trial Chamber II, Transcript of Hearing, 11 February 2014, ICC-01/04- 02/06-T-8Bis-Red-ENG, pp 39-42 (count 10); Pre-Trial Chamber II, Transcript of Hearing, 11 February 2014, ICC-01/04-02/06-T-8-Red-ENG, pp 50-52 (counts 11, 17, 18); Pre-Trial Chamber II, Transcript of Hearing, 11 February 2014, ICC-01/04-02/06-T-8Bis-Red-ENG, pp 36-39 (direct perpetration). Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0505-0508. For the inference of intent for murder through the use of a firearm against an unarmed person, see Pre-Trial Chamber II, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo”, 15 June 2009, ICC-01/05-01/08-424, para. 138. Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0505, at 0512. Transcript of interview of witness P-0768, EVD-PT-OTP-06425, at 1703. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0100. Transcript of interview of witness P-0768, EVD-PT-OTP-06485, at 0535. Transcript of interview of witness P-0768, EVD-PT-OTP-06491, at 0670-0671. Transcript of interview of witness P-0017, EVD-PT-OTP-06110, at 0561. Transcript of interview of witness P-0768, EVD-PT-OTP-06487, at 0581-0582. For the mens rea for the war crime of pillaging, see Pre-Trial Chamber II, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo”, 15 June 2009, ICC-01/05-01/08-424, para. 320. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0093-0094.

No. ICC-01/04-02/06 93 9 June 2014

Transcript of interview of witness P-0768, EVD-PT-OTP-06487, at 0586-0587; Statement of witness P-0016, EVD-PT-OTP-02701, at 0446, para. 132. Transcript of interview of witness P-0768, EVD-PT-OTP-06485, at 0535, EVD-PT-OTP-06491, at 0670-0671. See paras 140-141. Transcript of interview of witness P-0768, EVD-PT-OTP-06483, at 0501; Transcript of interview of witness P-0017, EVD-PT-OTP-06110, at 0580-0582. Transcript of interview of witness P-0768, EVD-PT-OTP-06430, at 1788, at 1793; Photograph, EVD- PT-OTP-06344. Transcript of interview of witness P-0768, EVD-PT-OTP-06430, at 1788, at 1794-1795. Statement of witness P-0046, EVD-PT-OTP-06242, at 0240, para. 112, at 0241, para. 116, at 0243, para. 125. Statement of witness P-0290, EVD-PT-OTP-04028, at 0311, para. 28, at 0318-0319, paras 76, 78; Transcript of interview of witness P-0038, EVD-PT-OTP-03736, at 2823-2825; Transcript of interview of witness P-0768, EVD-PT-OTP-06491, at 0665-0666; Statement of witness P-0014, EVD-PT-OTP- 03854, at 1040, para. 179; Transcript of interview of witness P-0017, EVD-PT-OTP-04145, at 0110; Transcript of interview of witness P-0055, EVD-PT-OTP-04633, at 0570-0571; Statement of witness P- 0041, EVD-PT-OTP-03268, at 0029, para. 173. Statement of witness P-0290, EVD-PT-OTP-04028, at 0318, para. 76. Statement of witness P-0046, EVD-PT-OTP-06242, at 0239, para. 110. Transcript of interview of witness P-0768, EVD-PT-OTP-06491, at 0665-0666; Statement of witness P-0046, EVD-PT-OTP-06242, at 0240, para. 113. Transcript of testimony of witness P-0017, EVD-PT-OTP-06151, at 2307-2309. For the mens rea applicable to article 8(2)(e)(vii) of the Statute, see Pre-Trial Chamber I, “Decision on the confirmation of charges”, 29 January 2007, ICC-01/04-01/06-803-tEN, para. 359. DCC, ICC-01/04-02/06-203-AnxA, pp 57-58; Pre-Trial Chamber II, Transcript of Hearing, 11 February 2014, ICC-01/04-02/06-T-8Bis-Red-ENG, pp 36-39. Pre-Trial Chamber II, Transcript of Hearing, 10 February 2014, ICC-01/04-02/06-T-7Bis-ENG, p. 59 (counts 12 and 13); Pre-Trial Chamber II, Transcript of Hearing, 11 February 2014, ICC-01/04-02/06-T- 8-Red-ENG, pp 46-47 (count 18); Pre-Trial Chamber II, Transcript of Hearing, 11 February 2014, ICC- 01/04-02/06-T-8Bis-Red-ENG, pp 36-39 (direct perpetration). Pre-Trial Chamber II, Transcript of Hearing, 11 February 2014, ICC-01/04-02/06-T-8Bis-Red-ENG, pp 4-13 (count 14); Pre-Trial Chamber II, Transcript of Hearing, 11 February 2014, ICC-01/04-02/06-T- 8Bis-Red-ENG, pp 36-39 (direct perpetration). For the objective and subjective elements of the mode of liability of ordering, see Pre-Trial Chamber II, “Decision on the Prosecutor’s Application under Article 58”, 13 July 2012, ICC-01/04- 01/12-1-Red, para. 63 (footnotes omitted). In this regard, the Chamber finds that article 25(3)(b) of the Statute does not require a formal superior-subordinate relationship and concurs with the Appeals Chamber of the ad hoc tribunals that “[i]t is sufficient that there is proof of a position of authority […] that would compel another person to commit a crime in following the […] order”. See: ICTR, Appeals Chamber, Prosecutor v. Semanza, Case No. ICTR-97-20-A, “Judgement”, 20 May 2005, para. 361; ICTY, Appeals Chamber, Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-A, “Judgement”, 17 December 2004, para. 28; ICTY, Appeals Chamber, Prosecutor v. Boškoski and Tarčulovski, Case No. IT-04-82-A, “Judgement”, 19 May 2010, para. 164. See para. 120. Transcript of interview of witness P-0768, EVD-PT-OTP-06423, at 1652-1653. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0100; Transcript of interview of witness P-0768, EVD-PT-OTP-06425, at 1703-1704, EVD-PT-OTP-06486, at 0565-0568, at 0574; Transcript of interview of witness P-0017, EVD-PT-OTP-06107, at 0522-0524.

No. ICC-01/04-02/06 94 9 June 2014

Transcript of interview of witness P-0768, EVD-PT-OTP-06483, at 0499. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0093-0094; Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0509-0510. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0093-0094; Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0515, EVD-PT-OTP-06485, at 0532. Transcript of interview of witness P-0768, EVD-PT-OTP-06482, at 0469. Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0515. Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0517. Transcript of interview of witness P-0768, EVD-PT-OTP-06483, at 0501, EVD-PT-OTP-06486, at 0564-0567. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0093-0094, at 0100. Also see: Transcript of interview of witness P-0017, EVD-PT-OTP-06107, at 0503-0504. Transcript of interview of witness P-0038, EVD-PT-OTP-06234, at 0101, EVD-PT-OTP-06236, at 0143; Transcript of interview of witness P-0055, EVD-PT-OTP-06356, at 0823-0824. Transcript of interview of witness P-0768, EVD-PT-OTP-06491, at 0662-0665. See paras 14-18. Transcript of interview of witness P-0038, EVD-PT-OTP-03725, at 2489-2490; Statement of witness P-0046, EVD-PT-OTP-06242, at 0239, para. 106; MONUC Report, “Individual Case Story – Bunia (Ituri)”, 26 March 2003, EVD-PT-OTP-05006, at 0290; Logbook message, EVD-PT-OTP-03975, at 1070 (third message on the page). Transcript of interview of witness P-0038, EVD-PT-OTP-06239, at 0165-0167; Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0519-0522; Statement of witness P-0046, EVD-PT- OTP-06242, at 0239, para. 106; MONUC Report, “Individual Case Story – Bunia (Ituri)”, 26 March 2003, EVD-PT-OTP-05006, at 0290. See Section C and paras 93-96. See paras 40-43. See paras 111-112. See paras 40-43. DCC, ICC-01/04-02/06-203-AnxA, paras 63-91; Pre-Trial Chamber II, Transcript of Hearing, 11 February 2014, ICC-01/04-02/06-T-8-Red-ENG, pp 46-47, 51-52; Pre-Trial Chamber II, Transcript of Hearing, 12 February 2014, ICC-01/04-02/06-T-9-Red-ENG, pp 13-22. DCC, ICC-01/04-02/06-203-AnxA, paras 76, 78-79, 81, 83-84, 86-87; Pre-Trial Chamber II, Transcript of Hearing, 11 February 2014, ICC-01/04-02/06-T-8-Red-ENG, pp 15-17; Pre-Trial Chamber II, Transcript of Hearing, 12 February 2014, ICC-01/04-02/06-T-9-Red-ENG, pp 13-22. DCC, ICC-01/04-02/06-203-AnxA, paras 78, 81; Pre-Trial Chamber II, Transcript of Hearing, 11 February 2014, ICC-01/04-02/06-T-8-Red-ENG, pp 50-51; Pre-Trial Chamber II, Transcript of Hearing, 12 February 2014, ICC-01/04-02/06-T-9-Red-ENG, pp 13-22. DCC, ICC-01/04-02/06-203-AnxA, paras 63-91; Pre-Trial Chamber II, Transcript of Hearing, 11 February 2014, ICC-01/04-02/06-T-8-Red-ENG, pp 46-47, 51-52; Pre-Trial Chamber II, Transcript of Hearing, 12 February 2014, ICC-01/04-02/06-T-9-Red-ENG, pp 13-22. DCC, ICC-01/04-02/06-203-AnxA, paras 100–108; Pre-Trial Chamber II, Transcript of Hearing, 11 February 2014, ICC-01/04-02/06-T-8Bis-Red-ENG, pp 24-34; Pre-Trial Chamber II, Transcript of Hearing, 12 February 2014, ICC-01/04-02/06-T-9-Red-ENG, pp 13-22. DCC, ICC-01/04-02/06-203-AnxA, paras 92-99; Pre-Trial Chamber II, Transcript of Hearing, 11 February 2014, ICC-01/04-02/06-T-8Bis-Red-ENG, pp 2-13; Pre-Trial Chamber II, Transcript of Hearing, 12 February 2014, ICC-01/04-02/06-T-9-Red-ENG, pp 13-22. For the objective and subjective elements of the mode of liability of instigation, see ICTY, Appeals Chamber, Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-A, “Judgement”, 17 December 2004, paras 27, 32; ICTR, Appeals Chamber, Prosecvutor v. Nahimana et al., Case No. ICTR-99-52-A, “Judgement”, 28 November 2007, para. 480; ICTR, Appeals Chamber, Prosecutor v. Nchamihigo, Case

No. ICC-01/04-02/06 95 9 June 2014

No. ICTR-2001-63-A, “Judgement”, 18 March 2010, para. 61. In this regard, the Chamber underlines that the Statute “does not accommodate a lower standard than the one required by dolus directus in the second degree” (Pre-Trial Chamber II, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo”, 15 June 2009, ICC- 01/05-01/08-424, para. 360). In addition, the Chamber finds that, in accordance with the jurisprudence on ordering, the causal link between the inducement and the conduct of another person must consist of a “direct effect” (Pre-Trial Chamber II, “Decision on the Prosecutor’s Application under Article 58”, 13 July 2012, ICC-01/04-01/12-1-Red, para. 63). See para. 148. See Section C and paras 93 – 96. See paras 40-43. The Chamber clarifies in this regard that “inducement” is not confined to a specific form and may, inter alia, be express or implied and consist of an act or omission. See: ICTY, Trial Chamber, Prosecutor v. Blaškić, Case No. IT-95-14-T, “Judgement”, 3 March 2000, para. 270; ICTY, Trial Chamber, Prosecutor v. Brđanin, Case No. IT-99-36-T, “Judgement”, 1 September 2004, para. 269; ICTY, Trial Chamber, Prosecutor v. Limaj et al., Case No. IT-03-66-T, “Judgement”, 30 November 2005, para. 514; ICTY, Trial Chamber, Prosecutor v. Orić, Case No. IT-03-68-T, “Judgement”, 30 June 2006, para. 273. See paras 138 – 143. See paras 21, 112. See paras 164 – 175. See paras 145 – 152. See paras 40 - 43. For the objective and subjective elements of the mode of liability set forth in article 25(3)(d) of the Statute, see Pre-Trial Chamber II, “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, 23 January 2012, ICC-01/09-01/11-373, para. 351. See Sections C and D. See paras 40 - 43. See paras 109 – 112. See para. 114. See para. 117. See paras 85 – 96. See paras 81 – 82. See paras 106, 110, 112, 114. See paras 106, 114. See paras 40 – 43. For the objective and subjective elements of the mode of liability set forth in article 28(a) of the Statute Pre-Trial Chamber II, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo”, 15 June 2009, ICC-01/05-01/08-424, para. 407. See para. 120. ICC-01/04-02/06-292-Red2, paras 397-398, 407-412. For the factors concerning a superior’s position of authority and effective control, see Pre-Trial Chamber II, “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo”, 15 June 2009, ICC-01/05-01/08-424, para. 417. Transcript of interview of witness P-0055, EVD-PT-OTP-06506, at 1076. Transcript of interview of witness P-0768, EVD-PT-OTP-06483, at 0499, EVD-PT-OTP-06484, at 0517-0518. See Section C.

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Transcript of interview of witness P-0768, EVD-PT-OTP-06483, at 0480-0481; Transcript of interview of witness P-0017, EVD-PT-OTP-06111, at 0596-0597; Transcript of interview of witness P- 0038, EVD-PT-OTP-06239, at 0173; Video Material, EVD-PT-OTP-06338, at 00:07:08. Transcript of interview of witness P-0055, EVD-PT-OTP-06505, at 1051; Transcript of interview of witness P-0768, EVD-PT-OTP-06494, at 0725. Transcript of interview of witness P-0055, EVD-PT-OTP-06505, at 1051-1053, EVD-PT-OTP-06507, at 1099-1102; Transcript of interview of witness P-0290, EVD-PT-OTP-06413, at 1392. Logbook message, EVD-PT-OTP-03975, at 1065 (first message on the page). Transcript of interview of witness P-0055, EVD-PT-OTP-06241, at 0210. Transcript of interview of witness P-0017, EVD-PT-OTP-06110, at 0572-0573. Transcript of testimony of witness P-0017, EVD-PT-OTP-06149, at 2168. Transcript of interview of witness P-0017, EVD-PT-OTP-06110, at 0560. Transcript of interview of witness P-0768, EVD-PT-OTP-06494, at 0724; Transcript of interview of witness P-0055, EVD-PT-OTP-06507, at 1114-1115. Logbook message, EVD-PT-OTP-03975, at 1079 (second message on the page). See Section D. Transcript of testimony of witness P-0017, EVD-PT-OTP-06151, at 2312-2314. Transcript of testimony of witness P-0041, EVD-PT-OTP-06187, at 5252-5254; Statement of witness P-0014, EVD-PT-OTP-03854, at 1039, paras 175, 176, 178; Statement of witness P-0290, EVD-PT-OTP- 04028, at 0319, para. 83. Statement of witness P-0315, EVD-PT-OTP-06363, at 1005, para. 87. Transcript of testimony of witness P-0055, EVD-PT-OTP-06213, at 7484. See para. 117. See paras 86 - 92. Transcript of interview of witness P-0038, EVD-PT-OTP-06241, at 0204-0205. Transcript of interview of witness P-0768, EVD-PT-OTP-06485, at 0548-0551. See para. 120. Statement of witness P-0016, EVD-PT-OTP-02701, at 0461, paras 222, 224. Transcript of interview of witness P-0017, EVD-PT-OTP-06108, at 0532-0533. Transcript of interview of witness P-0038, EVD-PT-OTP-03728, at 2560. Transcript of interview of witness P-0017, EVD-PT-OTP-06109, at 0555-0556. Transcript of interview of witness P-0768, EVD-PT-OTP-06494, at 0728; Transcript of interview of witness P-0038, EVD-PT-OTP-06237, at 0152. Statement of witness P-0016, EVD-PT-OTP-02701, at 0451, para. 168; Transcript of interview of witness P-0055, EVD-PT-OTP-06509, at 1133; Transcript of interview of witness P-0768, EVD-PT-OTP- 06494, at 0728. Transcript of interview of witness P-0768, EVD-PT-OTP-06491, at 0661. Transcript of interview of witness P-0768, EVD-PT-OTP-06485, at 0550-0551. Transcript of interview of witness P-0038, EVD-PT-OTP-03728, at 2540, EVD-PT-OTP-06239, at 0165-0167; Transcript of interview of witness P-0055, EVD-PT-OTP-06509, at 1143-1144. Transcript of interview of witness P-0768, EVD-PT-OTP-06484, at 0519-0522. Logbook messages, EVD-PT-OTP-03975, at 1097 (last message on the page); 0960 (last message on the page). Logbook message, EVD-PT-OTP-03975, at 1079 (first message on the page). Transcript of interview of witness P-0017, EVD-PT-OTP-06110, at 0560. Transcript of interview of witness P-0017, EVD-PT-OTP-04145, at 0116-0119, EVD-PT-OTP-06110, at 0560–0562; Transcript of interview of witness P-0038, EVD-PT-OTP-03728, at 2560. For the level of causality between crimes by subordinates and the superior’s failure to take reasonable and necessary measures, see Pre-Trial Chamber II, “Decision Pursuant to Article 61(7)(a)

No. ICC-01/04-02/06 97 9 June 2014 and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo”, 15 June 2009, ICC-01/05-01/08-424, paras 425 – 426. See para. 120. See paras 15, 171-172. See paras 40 - 43.

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