Ntaganda and the ‘Conduct of Hostilities Crimes’

The ICC’s appeals judgement in the Ntaganda case, although covering a diverse array of legal issues, will likely be remembered as the focus for a confused and chaotic debate on the meaning of ‘attack’ within IHL and ICL.

Raised in the specific context of Ntaganda’s ordering of ‘ratissage’ operations during the NIAC in the DRC, the Trial Chamber in July 2019 held that such operations did not constitute ‘attacks’ due to their having ‘took place sometime after the assault [on Sayo], and therefore not during the actual conduct of hostilities’ (¶ 1142). The OTP’s appeal on this point contended that a nexus to a ‘conduct of hostilities’ is necessary for attack-based war crimes, however that the Article 8(2)(e)(iv) prohibition on directing attacks against cultural objects is an exception to this rule, owing to the influence of Articles 27 and 56 of the 1907 Hague Regulations (¶ 15-16, 26; see also Al Mahdi Trial Chamber decision, ¶ 14-16).

‘Conduct of Hostilities Crimes’

The suggestion that an ‘attack’ within the meaning of IHL—i.e. ‘acts of violence against the adversary, whether in offence or in defence’ (Article 49(1), AP I)—and related war crimes may be limited to the conduct of hostilities appears to make sense on its face. The issue, however, is that there is scant basis for such a limitation in IHL, let alone in the jurisprudence of the ICC. As previously noted in a joint amicus submission with Michael Kearney, sources cited by successive Chambers as providing a basis for a category of war crimes which may only take place during the conduct of hostilities provide no such delineation.

The Trial Chamber in Ntaganda supported the assertion that there is a positive category of ‘conduct of hostilities crimes’ by citing two judicial authorities (¶ 904, fn 2615, ¶ 1136, fn 3147). First, an earlier decision from a Pre-Trial Chamber in Ntaganda, wherein it was held that in order to be criminally liable for the war crime of attacking civilians not taking part in hostilities under Article 8(2)(e)(i), there must be a demonstrably and ‘sufficiently close link between the “attack” against civilians and the conduct of hostilities’ (¶ 45). In turn, this Pre-Trial Chamber cites a 2008 Pre-Trial Chamber decision from Katanga, which is also the second source cited by the Ntaganda Trial Chamber. This decision identifies the Article 8(2)(b)(i) war crime of intentionally directing attacks against civilians as ‘the first in the series of war crimes for which one essential element is that the crime must be committed during the conduct of hostilities (commonly known as “conduct of hostilities crimes”)’ (¶ 267).

The Katanga Chamber’s sole source for the existence of such crimes, an edited chapter in a 2001 edited volume, does not identify a positive category of ‘conduct of hostilities crimes’, but rather notes that crimes related to the conduct of hostilities in a general sense were negotiated together during the Rome Conference (see amicus, pp. 4). Academic commentary cited by the Ntaganda Pre-Trial Chamber is similarly silent on this point. Cassese, one authority cited, does not assert that there is a positive category of ‘conduct of hostilities crimes’, but rather constructs a number of loose headings under which he lists out and refers to specific war crimes.

At best, on the page cited by the Pre-Trial Chamber (pp. 73), Cassese makes reference to ‘intentionally directing attacks against the civilian population in the combat area’. To assert, however, that this supports certain Article 8 provisions being solely applicable during the conduct of hostilities is quite a stretch, not least due to the casual manner in which he leaves the term ‘combat area’ undefined.

If accepted, a category of war crimes which may only take place during the conduct of hostilities would in effect replace the required nexus between the criminality and an IAC or NIAC with a narrower requirement for moment-to-moment fighting between two adverse militaries or non-state armed groups. This would directly clash with the understanding of ‘attack’ held by the ICTY (see Galić, ¶ 52-53; Strugar, ¶ 282).

A Chaotic Set of Opinions

Although the OTP’s appeal was specific to Article 8(2)(e)(iv), the majority of the judges in the Appeals Chamber approached the question more broadly. The judgement itself rejected the OTP’s appeal by a margin of 4-1, however only two of the five judges—Morrison and Hofmański—supported a narrow interpretation of ‘attack’.

Their position hinges on the distinction between ‘acts of hostility’ and ‘attacks’ within the Additional Protocols. In their view, the inclusion of the term ‘attack’ rather than ‘acts of hostility’ in certain war crimes necessitates a restrictive approach (¶ 30-33). However, nowhere in their separate opinion do Morrison and Hofmański explain why the appropriate distinction between ‘attacks’ and ‘acts of hostility’ is to require a strict nexus with the conduct of hostilities.

Judge Balungi Bossa’s opinion begins to muddy the waters. While rejecting a narrow interpretation of ‘attack’, her suggested solution is to include ratissage operations conducted after control of an area has been established as part of the conduct of hostilities, and thus part of the attack itself. She avers that ‘The fact that initially heavy weaponry was used to launch the initial assault but eventually evolved into using guns and machetes for ratissage operations does not diminish the fact that they were part and parcel of the attack launched against the population … and its property’ (¶ 9). That said, she further insists that Article 8(2)(e)(iv) was the incorrect charge to bring against Ntaganda, and it would have been more appropriate to charge him with the Article 8(2)(e)(xii), based on destroying or seizing property (¶ 12, 15). For this reason, and the Appeals Chamber’s inability to recategorize charges, Bossa concurred with the majority’s decision to uphold Ntaganda’s acquittal (¶ 15, 19).

Judge Eboe-Osuji’s opinion reads as though expressly written to cause consternation amongst military lawyers and IHL experts. Many points he makes are difficult to accept, including the assertion that the meaning of the term ‘attack’ in Articles 7 and 8 should be bridged (¶ 113, 120). More concretely, however, he draws on the ICTY’s Appeals Chamber in Kunarac, wherein it was held that the appropriate nexus for war crimes is to a relevant armed conflict, not to the conduct of hostilities, and that it is ‘unrealistic to adopt a compartmentalised view of military operation’ (¶ 131). In doing so, he quotes the ICTY, which stressed that ‘A violation of the laws or customs of war may therefore occur at a time when and in a place where no fighting is actually taking place’ (¶ 131, quoting Kunarac ¶ 57). Nonetheless, as with Bossa, he refrained from overturning the acquittal based on his assessment that Article 8(2)(e)(xii) would have been more appropriate (¶ 136).

Finally, Judge Ibáñez Carranza, whose short dissent is included in the main judgement (¶ 1165-1168), found no issue in proceeding under Article 8(2)(e)(iv). Rather, she suggested that ‘attack’, understood in relation to the word’s ordinary meaning, and the object and purpose of the Statute, should be read as to include ‘the preparation, the carrying out of combat action and the immediate aftermath thereof’ (¶ 1168).

What now?

In the wake of the Appeals Chamber’s decision, very little is clear. While the majority decision appeared to uphold—or at the very least didn’t abandon—the restrictive understanding of ‘attack’, it did not explicitly endorse or refute the supposed required nexus to the conduct of hostilities. Eboe-Osuji rejects such a requirement, whereas Bossa favours expansion as to what constitutes the conduct of hostilities, an approach shared, at least in part, by Carranza. Morrison and Hofmański, although accepting the Trial Chamber’s analysis, offer little by way of explanation as to why.

Similarly, the opinions display virtually no support for the argument that Article 8(2)(e)(iv) should be treated differently to other attack-based war crimes. Morrison and Hofmański spend considerable time refuting this argument (¶ 12-23). Nonetheless, the issue is likely to be raised again, as evidenced by the OTP’s June 2021 Policy on Cultural Heritage, wherein it was claimed that the Chamber offered ‘no majority overturning the legal principles recognised in Al Mahdi’, and that the OTP ‘will seek to clarify the law further in this respect’ (¶ 45).

Ultimately, the grounds of appeal put forward by the OTP touch on numerous uncertain legal issues, and it was perhaps unrealistic to expect an Appeals Chamber concerned with such a wide breadth of issues to provide a definitive conclusion. What would have been welcome, however, is an explanation as to how a positive category of ‘conduct of hostilities crimes’ are to be sustained. If their existence is accepted, answers must be given as to what the essential difference is between the targeting of a civilian or civilian object while an adverse armed force is present, and where one is not, and moreover what redress is available to victims whose unjust treatment does not meet the threshold of wilful killing or destruction of property.