ICC-01/04-02/06-2442 07-11-2019 1/117 NM T

Original: English No.: ICC-01/04-02/06

Date: 7 November 2019

TRIAL CHAMBER VI

Before: Judge Robert Fremr, Presiding Judge

Judge Kuniko Ozaki
Judge Chang-ho Chung

SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO

IN THE CASE OF
THE PROSECUTOR v. BOSCO NTAGANDA

Public
with one public annex

Sentencing judgment

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Judgment to be notified, in accordance with Regulation 31 of the Regulations of

the Court, to:

The Office of the Prosecutor Counsel for Bosco Ntaganda

Ms Fatou Bensouda Mr Stéphane Bourgon
Mr James Stewart Mr Christopher Gosnell
Ms Nicole Samson

Legal Representatives of Victims Legal Representatives of Applicants

Ms Sarah Pellet
Mr 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 Amicus Curiae

REGISTRY

Registrar Counsel Support Section

Mr Peter Lewis

Victims and Witnesses Unit Detention Section

Victims Participation and Reparations Others

Section

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I. BACKGROUND ............................................................................................................. 5
II. LEGAL FRAMEWORK APPLICABLE TO SENTENCING ................................... 8
A. Purposes of sentencing ................................................................................................ 8
B. Sentencing principles and factors .............................................................................. 9
C. Gravity ......................................................................................................................... 11
D. Aggravating circumstances ...................................................................................... 12
E. Mitigating circumstances .......................................................................................... 14
F. Determination of the appropriate sentence............................................................ 15
III. ANALYSIS PER CRIME .............................................................................................. 17
A. Preliminary issue relevant to the assessment of Mr Ntaganda’s culpability .... 18
B. Murder, attempted murder and intentionally attacking civilians (Counts 1, 2
and 3) ................................................................................................................................... 22
1. Gravity ..................................................................................................................... 23
2. Aggravating circumstances .................................................................................. 36
3. Conclusion ............................................................................................................... 39
C. Rape and sexual slavery (Counts 4, 5, 6, 7, 8, and 9) ............................................ 41
1. Gravity ..................................................................................................................... 42
2. Aggravating circumstances .................................................................................. 55
3. Conclusion ............................................................................................................... 58
D. Pillage, attacking protected objects, and destroying the adversary’s property
(Counts 11, 17, and 18) ...................................................................................................... 60
1. Gravity ..................................................................................................................... 61
2. Aggravating circumstances .................................................................................. 67
3. Conclusion ............................................................................................................... 68
E. Forcible transfer of population and ordering the displacement of the civilian
population (Counts 12 and 13) ........................................................................................ 69
1. Gravity ..................................................................................................................... 69
2. Aggravating circumstances .................................................................................. 74
3. Conclusion ............................................................................................................... 75
F. Persecution (Count 10) .............................................................................................. 75

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1. Gravity ..................................................................................................................... 76
2. Conclusion ............................................................................................................... 77
G. Conscripting and enlisting children under the age of 15 years into armed
forces or groups and using them to participate actively in hostilities (Counts 14,
15, and 16) ........................................................................................................................... 78
1. Gravity ..................................................................................................................... 78
2. Aggravating circumstances .................................................................................. 86
3. Conclusion ............................................................................................................... 88
IV. MR NTAGANDA’S INDIVIDUAL CIRCUMSTANCES .................................... 90
A. Aggravating circumstances ...................................................................................... 91
1. Alleged witness interference ................................................................................ 91
2. Mr Ntaganda’s position and military training and experience ....................... 93
B. Mitigating circumstances .......................................................................................... 93
1. Mr Ntaganda’s age ................................................................................................. 93
2. Mr Ntaganda’s personal experience during the Rwandan genocide ............. 94
3. Measures allegedly taken by Mr Ntaganda to save the lives of enemy
combatants and to protect civilians ............................................................................ 95
4. Mr Ntaganda’s alleged contribution to peace, reconciliation, and security in
2004 in Ituri ..................................................................................................................... 98
5. Mr Ntaganda’s behaviour towards and cooperation with the Court ........... 104
6. Actions and statements in relation to the victims ........................................... 109
7. Mr Ntaganda’s family circumstances and the conditions of his detention . 111
V. DETERMINATION OF THE OVERALL SENTENCE ........................................ 114
VI. DISPOSITION ............................................................................................................ 117

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I. BACKGROUND

1. On 8 July 2019, the Chamber convicted Mr Ntaganda of various crimes against

humanity and war crimes.1 That same day, the Chamber ordered the Prosecution,

the Defence and the LRVs to file any requests to submit further evidence or to

call witnesses in relation to sentencing by 29 July 2019, with any responses to

follow by 5 August 2019 (‘Order on Sentencing Procedure’).2

2. On 9 July 2019, the Chamber notified the Defence of the relevant parts of the

Judgment that would be translated for Mr Ntaganda.3 On 21 August 2019, the

Kinyarwanda translation of these parts was provided to the Defence.4

3. On 26 July 2019,5 the Registry filed its report concerning Mr Ntaganda’s solvency

and conduct while in detention (‘Registry Report’).6 Pursuant to an order by the

Chamber,7 an addendum to the report was filed on 30 August 2019, providing

further information on one particular matter arising from Mr Ntaganda’s time in

detention (‘Addendum to the Registry Report’).8

4. On 29 July 2019, the parties filed their respective requests pursuant to the

Chamber’s Order on Sentencing Procedure9 and on 5 August 2019, the parties

and participants filed their respective responses.10

1
Judgment, ICC-01/04-02/06-2359 (with Annexes A, B and C). The Chamber incorporates into the present
Sentencing Judgment the list of short forms and acronyms and the list of authorities from the Judgment (ICC-
01/04-02/06-2359-AnxB and ICC-01/04-02/06-2359-AnxC, respectively).
2
Order on sentencing procedure, ICC-01/04-02/06-2360.
3
Email from the Chamber to the Defence, copying the Language Services Section on 9 July 2019, at 09:38.
4
Email from the Chamber to the Defence on 21 August 2019, at 11:28.
5
The Chamber instructed the Registry to file this report on 11 July 2019, see email from the Chamber to the
Registry on 11 July 2019, at 16:29.
6
Registry’s Report on Mr Bosco Ntaganda’s Solvency and Conduct While in Detention, ICC-01/04-02/06-
2367-Conf (with confidential Annex).
7
Order in relation to D-0308, 14 August 2019, ICC-01/04-02/06-2382-Conf.
8
Addendum to ‘Registry’s Report on Mr Bosco Ntaganda’s Solvency and Conduct While in Detention’ (ICC-
01/04-02/06-2367-Conf), ICC-01/04-02/06-2390-Conf-Exp (with confidential Annex I and confidential
ex parte Annex II only available to the Registrar and the Defence; a confidential redacted version was notified
on the same day, ICC-01/04-02/06-2390-Conf-Red).
9
Prosecution’s request to submit additional evidence on sentencing, ICC-01/04-02/06-2368-Conf (a public
redacted version was notified on 18 September 2019, ICC-01/04-02/06-2368-Red); Defence request for
admission of sentencing evidence, ICC-01/04-02/06-2369-Conf-Exp (with confidential ex parte Annexes A, B

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5. On 20 August 2019, the Chamber issued a decision, inter alia, authorising three

witnesses to testify before the Chamber viva voce and setting the dates for a public

hearing on sentencing.11 On 23 August 2019, the Chamber issued a decision,

inter alia, granting the Prosecution's and Defence’s requests to admit the prior

recorded testimony of respectively two and three witnesses in relation to

sentencing, subject to the fulfilment of the necessary formal requirements of

Rule 68(2)(b) of the Rules.12 On 13 September 2019, the Chamber issued its

decision on the parties’ respective requests13 for admission of various items of

documentary evidence from the bar table.14

and C only available to the Registry and confidential Annex D; confidential redacted versions were notified
the same day, ICC-01/04-02/06-2369-Conf-Red, ICC-01/04-02/06-2369-Conf-AnxA-Red and ICC-01/04-
02/06-2369-Conf-AnxB-Red, respectively; a further confidential redacted version was notified on
10 September 2019, ICC-01/04-02/06-2369-Conf-Red2). The LRVs both informed the Chamber that they did
not intend to request leave to submit further evidence or to call witnesses for the purposes of the sentencing
proceedings, see email from the Common Legal Representative for the Former Child Soldiers to the Chamber
on 29 July 2019, at 15:19; and email from the Common Legal Representative for the Victims of the Attacks to
the Chamber on 29 July 2019, at 16:45.
10
Respectively, Prosecution’s response to the “Defence request for admission of sentencing evidence”, ICC-
01/04-02/06-2369-Conf-Red, 29 July 2019, ICC-01/04-02/06-2375-Conf (a corrected version with a
confidential annex was notified on 8 August 2019, ICC-01/04-02/06-2375-Conf-Corr; a public redacted
version was notified on 18 September 2019, ICC-01/04-02/06-2375-Corr-Red); Defence response to
“Prosecution’s request to submit additional evidence on sentencing”, ICC-01/04-02/06-2373-Conf; Joint
Response of the Common Legal Representatives of Victims to the “Prosecution’s request to submit additional
evidence on sentencing” (ICC-01/04-02/06-2368-Conf) and the “Confidential redacted version of Defence
request for admission of sentencing evidence” (ICC-01/04-02/06-2369-Conf-Red), ICC-01/04-02/06-2374-
Conf (a public redacted version was notified on 16 September 2019, ICC-01/04-02/06-2374-Red).
11
Decision on requests to call witnesses in relation to sentencing and for increased monitoring of Mr Ntaganda’s
contacts and scheduling the sentencing hearing, ICC-01/04-02/06-2384-Conf (a public redacted version was
notified the next day, ICC-01/04-02/06-2384-Red).
12
Preliminary ruling on prior recorded testimony pursuant to Rule 68(2)(b) in relation to sentencing, ICC-01/04-
02/06-2385-Conf (a public redacted version was notified the same day, ICC-01/04-02/06-2385-Red).
13
See Defence request for the admission of supplementary sentencing evidence, 30 August 2019, ICC-01/04-
02/06-2388-Conf (with confidential ex parte annex only available to the Registry; a confidential redacted
version of the annex was filed the same day); Prosecution’s request for the admission of additional
documentary evidence on sentencing, 30 August 2019, ICC-01/04-02/06-2389 (with confidential Annex A);
Defence response to “Prosecution’s request for the admission of additional documentary evidence on
sentencing”, 6 September 2019, ICC-01/04-02/06-2392; Prosecution’s response to the “Defence request for
the admission of supplementary sentencing evidence”, ICC-01/04-02/06-2388-Conf, 30 August 2019,
6 September 2019, ICC-01/04-02/06-2393-Conf; Response to Prosecution’s request for admission of
additional evidence contained in “Prosecution’s response to the ‘Defence request for the admission of
Supplementary sentencing evidence’, ICC-01/04-02/06-2388-Conf, 30 August 2019”, 11 September 2019,
ICC-01/04-02/06-2399-Conf.
14
Decision on requests for admission of evidence related to sentencing from the bar table, ICC-01/04-02/06-
2402. See also Order placing on the record the parties’ submissions and email decision of 17 September 2019
on the request by the Prosecution for disclosure of a statement of Witness D-0305, 6 November 2019, ICC-
01/04-02/06-2441 (with Annexes A, B and C).

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6. On 17, 18 and 20 September 2019, the Chamber held the public hearing on

sentencing15 during which it, inter alia, heard the viva voce testimony of the

aforementioned three witnesses, formally admitted into evidence the prior

recorded testimony of the aforementioned five witnesses under Rule 68(2)(b) of

the Rules,16 and heard the parties’ and participants’ preliminary oral submissions

on sentencing.

7. On 30 September 2019,17 the parties and participants filed their written

submissions on sentencing18 and, on 8 October 2019, filed their responses

thereto.19

15
T-266, T-267 and T-268.
16
See Prosecution’s submission of the prior recorded testimony of two witnesses pursuant to rule 68(2)(b) as
sentencing evidence, 9 September 2019, ICC-01/04-02/06-2394 (with confidential Annexes A and B); Notice
of submission of prior recorded testimony pursuant to Rule 68(2)(b) and Trial Chamber's order of 23 August
2019, 9 September 2019, ICC-01/04-02/06-2397 (with confidential Annexes A, B and C).
17
The Chamber notified the parties and participants of the deadlines informally via email on
12 September 2019, at 10:33. The deadline was formally notified during the hearing on 20 September 2019, T-
268, page 53.
18
Submissions on Sentence, ICC-01/04-02/06-2425-Conf (with public Annex A) (‘Prosecution Submissions’);
Submissions on sentence on behalf of Mr. Ntaganda, ICC-01/04-02/06-2424-Conf (with confidential Annex
A) (‘Defence Submissions’); Observations on Sentencing on behalf of the Former Child Soldiers, ICC-01/04-
02/06-2423-Conf (‘CLR1 Submissions’); and Sentencing Submissions of the Common Legal Representative
of the Victims of the Attacks, ICC-01/04-02/06-2422-Conf (‘CLR2 Submissions’).
19
Response to “Submissions on sentence on behalf of Mr Ntaganda” (ICC-01/04-02/06-2424-Conf), ICC-01/04-
02/06-2437-Conf (with public Annex A) (‘Prosecution Response’); Response on behalf of Mr. Ntaganda to
Prosecution and CLR1/CLR2 submissions on sentence, ICC-01/04-02/06-2438-Conf (with confidential
Annex A) (‘Defence Response’); Response of the Common Legal Representatives of Former Child Soldiers to
the “Submissions on sentence on behalf of Mr. Ntaganda” (ICC-01/04-02/06-2424-Conf), ICC-01/04-02/06-
2435-Conf (‘CLR1 Response’); and Response of the Common Legal Representative of the Victims of the
Attacks to the “Submissions on sentence on behalf of Mr. Ntaganda” (ICC-01/04-02/06-2424-Conf), ICC-
01/04-02/06-2436-Conf (‘CLR2 Response’).

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II. LEGAL FRAMEWORK APPLICABLE TO SENTENCING

8. The legal provisions applicable to sentencing are primarily Articles 76, 77 and 78

of the Statute and Rules 145 to 147 of the Rules. The Appeals Chamber has found

that these provisions, when read together with the underlying objectives stated in

the Preamble to the Statute, establish a comprehensive scheme for the

determination of a sentence.20

A. Purposes of sentencing

9. Although Articles 77 and 78 of the Statute do not specify the purpose of

punishment for crimes under the Statute, the Preamble of the Statute provides

that ‘the most serious crimes of concern to the international community as a

whole must not go unpunished’.21 Furthermore, in establishing the Court, the

States Parties were ‘[d]etermined to put an end to impunity for the perpetrators

of these crimes and thus to contribute to the prevention of such crimes’. 22

Accordingly, the Chamber considers that the Preamble establishes retribution

and deterrence as the primary objectives of punishment at the Court.23

10. Retribution must not to be understood as fulfilling a desire for revenge, but

rather as an expression of the international community’s condemnation of the

crimes. Furthermore, by imposing a proportionate sentence, the harm caused to

the victims is also acknowledged.24 With regard to deterrence, a sentence should

be adequate to discourage a convicted person from recidivism (individual

deterrence), as well as to ensure that those who may consider committing similar

20
Lubanga Sentencing Appeal Judgment, paras 32-35. See also Bemba Sentencing Judgment, para. 12; and
Al Mahdi Judgment, para. 68.
21
Preamble of the Statute, para. 4.
22
Preamble of the Statute, para. 5.
23
Katanga Sentencing Judgment, para. 38; Bemba Sentencing Judgment, para. 10; Al Mahdi Judgment,
para. 66; Bemba et al. Sentencing Judgment, para. 19; and Bemba et al. Re-sentencing Judgment, para. 18(i).
24
Katanga Sentencing Judgment, para. 38; Bemba Sentencing Judgment, para. 11; and Al Mahdi Judgment,
para. 67.

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crimes are dissuaded from doing so (general deterrence).25 Although

rehabilitation is also a relevant purpose of sentencing, it should not be given

undue weight in the context of the crimes adjudicated by the Court.26

B. Sentencing principles and factors

11. The Court’s legal framework does not contain mandatory minimum or maximum

sentences, or sentence ranges, for specific crimes, and the Chamber enjoys broad

discretion in determining the sentence.27 Yet, under Article 78(1),28 and given the

importance of retribution as one the primary objectives of sentencing, the totality

of the sentence must be proportionate and reflect the culpability of the convicted

person.29 The penalties must therefore be tailored to fit the gravity of the crimes. 30

As discussed further below, the gravity is generally measured in abstracto, by

assessing the constitutive elements of the crime and the mode of liability in

general terms, and in concreto, by assessing the particular circumstances of the

case looking at the degree of harm caused by the crime and the culpability of the

perpetrator.31 The Chamber bases itself primarily in this regard on the findings in

the Judgment.32

12. After having determined the in abstracto gravity of the relevant crimes, the

Chamber is obliged to individualise the penalty to the concrete gravity of the

25
Bemba Sentencing Judgment, para. 11; Al Mahdi Judgment, para. 67; and Bemba et al. Sentencing Judgment,
para. 19.
26
Katanga Sentencing Judgment, para. 38; Bemba Sentencing Judgment, para. 11; and Al Mahdi Judgment,
para. 67. See also Bemba et al. Sentencing Appeal Judgment, para. 205.
27
Lubanga Sentencing Appeal Judgment, para. 40; Bemba Sentencing Judgment, para. 12; Al Mahdi Judgment,
para. 68; Bemba et al. Sentencing Judgment, para. 36; and Bemba et al. Sentencing Appeal Judgment,
para. 283.
28
See also Articles 81(2)(a) and 83(3) of the Statute.
29
Rule 145(1)(a) of the Rules. See also Lubanga Sentencing Appeal Judgment, paras 34, 39-40. See also
Lubanga Sentencing Judgment, para. 26; Bemba Sentencing Judgment, para. 11; Bemba et al. Sentencing
Judgment, para. 36; and Bemba et al. Sentencing Appeal Judgment, para. 113.
30
Article 78(1) of the Statute. See also Katanga Sentencing Judgment, para. 39.
31
Lubanga Sentencing Appeal Judgment, paras 40 and 62.
32
The Chamber notes that the Defence, at various instances appears to challenge the Chamber’s findings in the
Judgment (see, e.g., Defence Submissions, paras 48 and 61). The Chamber emphasises that any such
challenges are to be made before the Appeals Chamber and not as part of the sentencing submissions, before
the present chamber.

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crime.33 Considering also the purposes of specific deterrence and rehabilitation,

the appropriate sentence should also reflect the individual circumstances of the

convicted person, including any aggravating and mitigating factors. The weight

given to an individual factor and the balancing of all relevant factors in arriving

at the sentence is at the core of a trial chamber’s exercise of discretion.34

13. Certain factors may reasonably be considered under more than one category.35

The category in which a certain factor is placed is therefore of limited relevance.

It is more for the Chamber to identify all relevant factors, and to attach

appropriate weight to them in its determination of the sentence. 36 Naturally, the

Chamber will not rely on the same factor more than once, 37 and any factors

assessed in relation to the gravity of the crime will not be considered as

aggravating circumstances, and vice versa.38

33
Lubanga Sentencing Appeal Judgment, paras 76-77; Bemba Sentencing Judgment, para. 92; and Bemba et al.
Sentencing Judgment, para. 35.
34
Lubanga Sentencing Appeal Judgment, para. 3.
35
Bemba et al. Sentencing Appeal Judgment, para. 112, where the Appeals Chamber explained that ‘the “extent
of the damage caused”, the “degree of participation of the convicted person” mentioned in rule 145 (1) (c) of
the Rules and the aggravating circumstances listed in rule 145 (2) (b) of the Rules are not neatly
distinguishable and mutually exclusive categories’. See also Lubanga Sentencing Appeal Judgment, para. 85;
and Katanga Sentencing Judgment, para. 71.
36
Bemba et al. Sentencing Appeal Judgment, para. 112. See also Lubanga Sentencing Appeal Judgment,
paras 61-66, discussing potential alternative interpretations of the interplay between the factors in
Article 78(1) of the Statute and those in Rule 145(1)(c) of the Rules, but not considering it necessary to
determine which approach is correct. See also Lubanga Sentencing Judgment, para. 44 and Katanga
Sentencing Judgment, paras 44-69, in which the Trial Chambers I and II respectively considered the
Rule 145(1)(c) factors as relevant to their assessment of the Article 78(1) factors; and Bemba Sentencing
Judgment, para. 13, Bemba et al. Sentencing Judgment, para. 22 and Al Mahdi Judgment, para. 69, in which
Trial Chambers III, VII and VIII respectively considered that some of the Rule 145(1)(c) factors may be
relevant to the assessment of the existence of aggravating and mitigating circumstances.
37
Bemba et al. Sentencing Appeal Judgment, para. 112; and Bemba et al. Re-sentencing Judgment, para. 18(iii).
38
See Lubanga Sentencing Judgment, para. 35; Katanga Sentencing Judgment, para. 35; Bemba Sentencing
Judgment, para. 14; Al Mahdi Judgment, para. 70; and Bemba et al. Sentencing Judgment, para. 23. The
Chamber notes the Defence’s submission that the Prosecution’s submissions in relation to sentence contain
references to aggravating circumstances in the context of the discussion of gravity and that the same facts are
referred to by it both in relation to gravity and aggravating circumstances, which enhances the risk of double
counting (Defence Response, para. 13). The Chamber emphasises that any factors considered by it in relation
to gravity have not been considered as aggravating circumstances and vice versa.

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C. Gravity

14. Pursuant to Article 78(1) of the Statute, the Chamber must take into account,

inter alia, the gravity of the crime. Gravity is a principal consideration in the

imposition of a sentence.39 Despite being the most serious crimes of concern to

the international community,40 in abstracto not all crimes under the Statute are

necessarily of equivalent gravity and the Chamber must weigh each of them,

distinguishing, for example, between crimes against persons and crimes targeting

property.41 Even if inherently grave, and mindful of the severe impact crimes

against property may have on victims, such crimes are generally of lesser gravity

than crimes against persons.42

15. The Statute does not pre-establish any in abstracto hierarchy among individual

modes of liability for the purposes of sentencing. The ultimate assessment of the

level of culpability of the convicted person and its impact on the sentence always

depends on an in concreto assessment of the degree of participation and the

degree of intent in the particular circumstances of the case.43 The Chamber

considers that the commission of a crime through any of the modes of liability set

out in Article 25(3)(a) of the Statute amounts to principal perpetration, and that

direct perpetration is therefore not inherently more grave than co-perpetration or

indirect co-perpetration for the purposes of sentencing.44

16. Beyond these considerations of gravity in abstracto, the Chamber’s determination

of the gravity of the acts must be made in concreto, in light of the particular

circumstances of the case.45 This assessment is to be done from both a

39
Lubanga Sentencing Judgment, para. 36; and Bemba Sentencing Judgment, para. 15.
40
Preamble of the Statute, para. 4.
41
Katanga Sentencing Judgment, para. 43; and Al Mahdi Judgment, para. 72.
42
Al Mahdi Judgment, para. 77; and Katanga Sentencing Judgment, para. 43. See also submissions in
Prosecution Submissions, para. 13.
43
Bemba et al., Sentencing Appeal, para. 60. See also Katanga Sentencing Judgment, para. 61.
44
ICTY, Stakić Appeals Judgment, para. 380. See also Bemba et al., Sentencing Appeal, paras 1 and 59.
See also CLR1 Response, para. 20.
45
Katanga Sentencing Judgment, para. 61; and Bemba Sentencing Judgment, para. 16.

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quantitative and a qualitative standpoint.46 This assessment must take into

account: (i) the gravity of the crimes, i.e. the particular circumstances of the acts

constituting the elements of the offence; as well as (ii) the gravity of the culpable

conduct, i.e. the particular circumstances of the conduct constituting elements of

the mode of liability. As long as they relate to the elements of the offence and

mode(s) of liability, the factors stipulated in Rule 145(1)(c) will be considered in

the evaluation of gravity, including the extent of the damage caused, the harm

caused to the victims and their families, the nature of the unlawful behaviour and

the means employed to execute the crime, and/or the circumstances of manner,

time and location, as well as the nature and degree of participation of the

convicted person in the commission of the crime and his or her degree of intent.47

Beyond such elements, the Chamber has a degree of discretion to consider other

relevant factors for the purpose of the determination of the gravity of the crime or

as aggravating circumstances.

D. Aggravating circumstances

17. For factors not considered as part of the gravity assessment, but taken into

account separately as aggravating circumstances, the Chamber must be

convinced of their existence beyond reasonable doubt. The list of aggravating

circumstances in Rule 145(2)(b) of the Rules is not exhaustive, rather, as indicated

by Rule 145(1)(b)(vi), circumstances other than those explicitly provided in

Rule 145(2)(b) (i) to (v) of the Rules may be considered if they are similar to them

by virtue of their nature.48 Rule 145(2)(b)(vi) of the Rules does not set forth a

lower threshold for seriousness.49

46
Katanga Sentencing Judgment, para. 43.
47
For a discussion of the potential interaction among the factors listed in Article 78 of the Statute and those of
Rule 145(1)(c), see Lubanga Sentencing Appeal Judgment, paras 61-66.
48
Bemba et al. Sentencing Appeal Judgment, para. 156.
49
Bemba et al. Sentencing Appeal Judgment, para. 157.

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18. Aggravating circumstances must relate to the crimes of which a person was

convicted or to the convicted person him- or herself.50 For a factor to be

considered as aggravating, there must be a sufficiently proximate link between

the factor and the crime or crimes that form the basis of the conviction.51 In

relation to ‘uncharged offences’ or ‘uncharged allegations’, the Appeals Chamber

has stressed that ‘[t]he convicted person is sentenced for the crime or offence for

which he or she was convicted, not for other crimes or offences that that person

may have also committed, but in relation to which no conviction was entered’.52 It

emphasised that ‘[t]his applies even when, based on the factual findings entered

by the Trial Chamber, it may be concluded that these other crimes or offences

were actually established at trial’.53

19. The Appeals Chamber considered that, in limited circumstances, criminal

conduct that occurred after the offence for which a person is convicted may

amount to an aggravating circumstance, provided that a sufficiently proximate

link is established with the crimes for which the accused is convicted.54

20. A legal element of the crime or mode of liability cannot be considered as an

aggravating circumstance.55 For the purpose of the present case, this means, for

example, that for the war crimes of conscription and enlistment of children under

the age of 15 and using them to actively participate in hostilities

(Article 8(2)(e)(vii) of the Statute) for which Mr Ntaganda was convicted, the fact

that the victims were under 15 cannot, as such, be considered an aggravating

circumstance. Similarly, as to the conviction for the war crime of intentionally

50
Bemba Sentencing Judgment, para. 18; and Al Mahdi Judgment, para. 73.
51
Bemba et al. Sentencing Appeal Judgment, paras 115 and 151; and Bemba et al. Re-sentencing Judgment,
para. 18(iv).
52
Bemba et al. Sentencing Appeal Judgment, para. 113.
53
Bemba et al. Sentencing Appeal Judgment, para. 113.
54
Bemba et al. Sentencing Appeal Judgment, paras 115-116. The Appeals Chamber did note, however, that this
is not necessarily in line with the case law of the ICTY and ICTR, which is not entirely consistent on this
point: Bemba et al. Sentencing Appeal Judgment, para. 114.
55
Bemba Sentencing Judgment, para. 14; Al Mahdi Judgment, para. 70; Bemba et al. Sentencing Judgment,
para. 25; and Bemba et al. Sentencing Appeal Judgment, para. 129.

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having directed an attack against the health centre in Sayo pursuant to

Article 8(2)(e)(iv) of the Statute, the fact the health centre is a protected object

cannot constitute an aggravating circumstance.

21. The absence of a mitigating circumstance does not constitute an aggravating

circumstance.56

E. Mitigating circumstances

22. Bearing in mind the different circumstances of each case, the Chamber has a

considerable degree of discretion in determining what constitutes a mitigating

circumstance in addition to those explicitly set out in Rule 145(2)(a) of the Rules,

and the weight, if any, to be afforded to it.57 Examples include the convicted

person’s behaviour in detention, which may in exceptional circumstances be

considered as mitigating,58 and voluntary surrender upon, or soon after, the

issuance of an arrest warrant.59

23. The existence of mitigating circumstances that relate to the convicted person does

not lessen the gravity of the offence.60 In light of the purposes of sentencing, such

circumstances are relevant considerations in determining whether the length of

the sentence that would be appropriate on the basis of the gravity of the crime

ought to be reduced.

56
Bemba Sentencing Judgment, para. 18; Al Mahdi Judgment, para. 73; Bemba et al. Sentencing Judgment,
para. 25; and Bemba et al. Re-sentencing Judgment, para. 18(iii).
57
Lubanga Sentencing Appeal Judgment, paras 43 and 111; Bemba Sentencing Judgment, para. 19; Al Mahdi
Judgment, para. 74; and Bemba et al. Sentencing Appeal Judgment, para. 187.
58
E.g., Bemba Sentencing Judgment, para. 81.
59
E.g., ICTR, Seromba Appeal Judgment, para. 236; ICTR, Rutaganira Trial Judgment, para. 145; ICTY,
Kvočka et al. Appeal Judgment, para. 710; and ICTY, Popović et al. Trial Judgment, paras 2202 and 2207.
The Mrkšić et al. trial chamber considered that surrendering only several years after an indictment had been
issued could not be taken into account as a mitigating circumstance: ICTY Mrkšić et al. Trial Judgment,
para. 698.
60
See Katanga Sentencing Judgment, para. 77; and Bemba et al. Sentencing Judgment, para. 24.

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24. Whether mitigating circumstances exist is considered on a balance of

probabilities.61 Although mitigating circumstances must relate directly to the

convicted person,62 they need not directly relate to the crimes that the person is

convicted of. Moreover, they are not limited by the scope of the confirmed

charges, or the Chamber’s findings in the Judgment.63

F. Determination of the appropriate sentence

25. On the basis of its assessment, the Chamber must pronounce a sentence for each

crime, followed by a joint sentence specifying the total period of imprisonment.64

The highest individual sentence constitutes the minimum possible joint

sentence,65 but the Court’s legal framework does not prescribe by how much, and

in what circumstances, the joint sentence may exceed the highest individual

sentence.66 Article 78(3) of the Statute does, however, provide that any joint

sentence of imprisonment may not exceed 30 years, unless the extreme gravity of

the crime and the individual circumstances of the convicted person warrant a

term of life imprisonment. In addition to a prison sentence, the Chamber may

order a fine and/or the forfeiture of proceeds, property and assets derived

directly or indirectly from the crime(s), pursuant to Article 77(2) of the Statute.67

26. The Chamber recalls that, while having found that cumulative convictions are

permissible, it found Mr Ntaganda guilty of the commission of certain crimes

61
Lubanga Sentencing Judgment, para. 34; Katanga Sentencing Judgment, para. 34; Bemba Sentencing
Judgment, para. 19; Al Mahdi Judgment, para. 74; and Bemba et al. Sentencing Judgment, para. 24.
62
Bemba Sentencing Judgment, para. 19; Al Mahdi Judgment, para. 74; and Bemba et al. Sentencing Judgment,
para. 24.
63
Lubanga Sentencing Judgment, para. 34; Katanga Sentencing Judgment, para. 32; Bemba Sentencing
Judgment, para. 19; Al Mahdi Judgment, para. 74; and Bemba et al. Sentencing Judgment, para. 24.
64
Article 78(3) of the Statute. See also Bemba et al. Re-sentencing Judgment, para. 18(ii).
65
Article 78(3) of the Statute. See also Bemba Sentencing Judgment, para. 12; Bemba et al. Sentencing Appeal
Judgment, para. 57; and Bemba et al. Re-sentencing Judgment, para. 18(ii).
66
By contrast, see, e.g., paragraph 43 of the Czech Criminal Code (Law no. 40/2009); Section 54 of the German
Criminal Code; and Article 57(2) of the Dutch Criminal Code.
67
The Appeals Chamber has held that the powers of a trial chamber at sentencing are limited to the
identification of the appropriate penalty among the ones listed in the Statute and a determination of its
quantum: Bemba et al. Sentencing Appeal Judgment, para. 77.

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that are wholly or in part based on the same conduct and has already indicated

that it would take this into account for sentencing.68

27. Once the Chamber has imposed the total sentence, the time Mr Ntaganda has

spent in detention in accordance with an order of the Court must be deducted

therefrom.69

28. In the following, the Chamber first sets out its analysis of the gravity and

aggravating circumstances, if any, of each crime that Mr Ntaganda has been

convicted of, before turning to Mr Ntaganda’s individual circumstances and then

determining the final sentence.

68
Judgment, paras 1202-1206.
69
Article 78(2) of the Statute. See also Lubanga Sentencing Appeal Judgment, para. 35; Bemba Sentencing
Judgment, para. 12; Al Mahdi Judgment, para. 68; and Bemba et al. Re-sentencing Judgment, para. 18(v).

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III. ANALYSIS PER CRIME

29. At the outset, the Chamber notes that the Prosecution requested that the

Chamber impose a total sentence of 30 years for the crimes for which

Mr Ntaganda was convicted.70 The Defence submits that a sentence of no more

than 23 years would reflect and be proportional to Mr Ntaganda’s culpability. 71

The Legal Representative of the Former Child Soldiers submits that the sentences

for Counts 14, 15 and 16 should be 18, 18 and 20 years respectively and that the

sentences for Counts 6 and 9 should be 30 years each.72 The Legal Representative

of the Victims of the Attacks submits that the overall joint sentence to be imposed

should be life imprisonment.73

30. In this part, after considering a preliminary issue relevant to the assessment of

Mr Ntaganda’s culpability, the Chamber lays out its reasoning and conclusions

informing its determination of the sentences for the crimes for which

Mr Ntaganda was convicted. Insofar as the considerations are related or overlap,

the Chamber addresses several crimes jointly, such as when they relate to similar

protected interests. The order in which the crimes are addressed is as follows: (i)

crimes against life (Counts 1-3); (ii) sexual violence, i.e. rape and sexual slavery

(Counts 4-9); (iii) crimes against property or civilian objects (Counts 11, 17-18);

(iv) forcible transfer and ordering displacement (Counts 12-13); (v) persecution

(Count 10); and (vi) recruitment of children under the age of 15 into the

UPC/FPLC and their use in hostilities (Counts 14-16).

31. As noted above, for the purpose of its assessment of the appropriate sentence, the

Chamber has taken into account that although the convictions for murder

(Counts 1 and 2), rape (Counts 4 and 5) and sexual slavery (Counts 7 and 8), as

70
Prosecution Submissions, para. 113.
71
Defence Submissions, para. 159.
72
CLR1 Submissions, paras 61-62.
73
CLR2 Submissions, paras 63-64. The Legal Representative of the Victims of the Attacks further submits that
none of the individual sentences should be less than 20 years and that the sentences for the crimes of murder,
rape and sexual slavery should not be less than 30 years (CLR2 Submissions, para. 63).

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crimes against humanity and as war crimes, respectively, are each premised on

the existence of distinct contextual elements, Mr Ntaganda’s convictions for these

crimes are based on the same underlying conduct. For the sentence to be fair, this

must be taken into account. Therefore, in order to determine a fair and

proportionate sentence, the Chamber discusses the crimes against humanity and

war crimes of respectively murder, rape and sexual slavery together. In addition,

the Chamber has taken into account the fact that some of the conduct underlying

the convictions for different crimes is also the same.74

A. Preliminary issue relevant to the assessment of Mr Ntaganda’s culpability

32. The Defence argues that it is necessary for the Chamber to draw a distinction

between Mr Ntaganda’s ‘degree of participation’ and ‘degree of intent’ during

the First Operation and the Second Operation on the basis of a ‘concrete

evaluation of culpability’.75 It submits that Mr Ntaganda’s degree of participation

and intent, and therefore his concrete role, in relation to the Second Operation

was substantially lower as compared to the First Operation, despite the

Chamber’s finding that the mode of liability was the same for both.76 In

particular, the Defence emphasises the fact that Mr Ntaganda was not physically

present during the Second Operation77 and had no ‘advance or contemporaneous

awareness’ of the occurrence of certain specific events.78 It also avers that all of

Mr Ntaganda’s contributions in the Second Operation ‘appear’ to have been

directed towards its ‘lawful purpose’, that is the opening of the ‘Main Road’

between Mongbwalu and Bunia.79

74
See, e.g., paras 94, 159 and 176 below.
75
Defence Submissions, paras 36 and 99.
76
Defence Submissions, paras 37-40, 91 and 99.
77
Defence Submissions, paras 38, 57, 67 and 92.
78
E.g., the Kobu massacre and killings at the Bambu hospital. See Defence Submissions, paras 39-40, 47,
57 and 92.
79
Defence Submissions, para. 41.

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33. The Prosecution and the Legal Representative of the Victims of the Attacks argue

that there is no distinction in Mr Ntaganda’s degree of culpability or intent in

relation to the First and Second Operation, as both formed part of the same

common plan and Mr Ntaganda meant for all the crimes against the Lendu

population for which he was convicted to occur.80

34. At the outset, the Chamber recalls that Mr Ntaganda was found guilty as an

indirect co-perpetrator for the crimes charged under Counts 1 to 5, 7 to 8, 10 to 13

and 17 to 18.81 With the exception of sexual slavery as charged under Counts 7

and 8, and attacking a protected object under Count 17, these crimes were

committed during both the First Operation and the Second Operation.82 The

Chamber found that the indirect co-perpetrators, including Mr Ntaganda, by

virtue of their agreement to drive out all the Lendu from the attacked localities,

meant: (i) for civilians to be attacked and killed; (ii) for their property to be

appropriated and destroyed; (iii) for civilians to be raped and subjected to sexual

slavery; (iv) for civilians to be forcibly displaced; (v) for protected objects to be

intentionally attacked; and (vi) for the aforementioned conduct to be targeted

towards the Lendu civilian population as such,83 the latter thereby amounting to

persecution. The Chamber thus considers that, while his degree of participation

therein may have varied, as detailed below, Mr Ntaganda’s degree of intent in

relation to the crimes committed during both the First and the Second Operation

was the same.

35. As far as Mr Ntaganda’s ‘degree of participation’ in the crimes committed during

the First Operation and the Second Operation is concerned, the Chamber will

consider his participation as part of its assessment of the in concreto gravity of his

80
Prosecution Submissions, paras 57-60; and CLR2 Response, paras 11 and 14. See also Prosecution Response,
paras 3-5, 19 and 21-22.
81
Judgment, para. 1199. For the crimes of murder (Counts 1 and 2) and persecution (Count 10) in relation to the
killing of Abbé Bwanalonga, Mr Ntaganda was also convicted as a direct perpetrator.
82
Judgment, paras 900-901, 929, 947-948, 962-963, 1025, 1043, 1074, 1101, 1148 and 1168.
83
Judgment, para. 810.

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culpable conduct.84 In this respect, the Chamber recalls its finding that ‘the First

and Second Operation are part of one and the same plan’ to drive out all the

Lendu from the localities targeted during the course of the UPC/FPLC military

campaign against the RCD-K/ML85 and that the acts performed by the UPC/FPLC

troops during these two successive operations formed part of the same course of

conduct.86 It further recalls its finding that ‘[t]he UPC/FPLC as a whole

functioned as a tool in the hands of the co-perpetrators, through which they were

able to realise […] the crimes against the Lendu’87 and that the conduct of the

individual UPC/FPLC soldiers in the execution of the crimes was thus to be

attributed to the co-perpetrators as their own.88 Against this background, the

Chamber found Mr Ntaganda guilty as an indirect co-perpetrator of the crimes

underlying Counts 1 to 5, 10 to 13 and 18, committed during both the First and

Second Operation, for the crime underlying Count 17 committed during the First

Operation and the crimes underlying Counts 7 and 8, committed during the

Second Operation,89 on the basis of his various essential contributions to the

common plan.90

36. The Chamber further recalls that Mr Ntaganda’s giving of orders to commit

crimes and personal engagement in violent conduct towards the enemy 91 – which

the Chamber only found to have been established in relation to the First

Operation – was just one of the ways through which he contributed to the

common plan.92 The Chamber thus considers Mr Ntaganda’s culpability for the

crimes committed during both the First Operation and the Second Operation to
84
See para. 16 above.
85
Judgment, paras 808 and 838.
86
Judgment, para. 793.
87
Judgment, para. 819.
88
Judgment, para. 819.
89
Judgment, para.1199.
90
Judgment, paras 826-857.
91
Judgment, paras 847-851.
92
The Chamber also found that Mr Ntaganda’s role was determinative in setting up a strong military group
capable of driving out from certain areas all Lendu civilians (see Judgment, section V.C.3.c.1) and that
Mr Ntaganda devised the military tactic which allowed for the success of the UPC/FPLC taking over of
Mongbwalu and the related First and Second Operation (see Judgment, section V.C.3.c.2).

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be high, irrespective of whether he was in close physical proximity to the

locations where the crimes were physically carried out, and even in instances

where he did not have previous, contemporaneous, or subsequent knowledge of

the specifics of the crimes committed. Mr Ntaganda’s culpability in relation to

crimes found to have been committed during the Second Operation is therefore

not less or diminished, as compared to his general culpability for the crimes that

were committed during the First Operation. Rather, the fact that during the

First Operation he gave orders to commit crimes and personally engaged in

violent conduct towards the enemy, as set out in the Judgment93 and further

discussed below, is a factor which, in the view of the Chamber, may further

increase his culpability.

37. As for the Defence’s argument that all of Mr Ntaganda’s contributions ‘appear’ to

have been directed towards the ‘lawful purpose’ of the Second Operation ‘to

open the Main Road between Mongbwalu and Bunia’,94 the Chamber recalls that

the First and Second Operation were part of the same military campaign and

constituted a logical succession of events,95 and that it was the success of the

UPC/FPLC’s assault on Mongbwalu which allowed it to continue, pursuant to

the common plan, the commission of crimes against the targeted groups during

both the First and Second Operation.96 The Defence’s argument therefore finds no

support in the Chamber’s conclusions made in the Judgment, or the evidence, as

assessed by the Chamber, on which these conclusions are based.

38. Against this background, the Chamber has analysed the nature and degree of

Mr Ntaganda’s participation and intent in the commission of the crimes

underlying Counts 1 to 5, 7 to 8, 10 to 13 and 17 to 18.

93
Judgment, paras 847-851.
94
Defence Submissions, para. 41.
95
Judgment, para. 793. See also submissions in Prosecution Submissions, para. 57.
96
Judgment, para. 838.

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B. Murder, attempted murder and intentionally attacking civilians (Counts 1, 2

and 3)

39. The Chamber found Mr Ntaganda responsible as a direct perpetrator for the

murder of Abbé Bwanalonga in Mongbwalu during the First Operation.97

40. The Chamber also found Mr Ntaganda responsible as an indirect co-perpetrator

for murders committed by UPC/FPLC soldiers, and, in one location, also by

Hema civilians, during the course of the First and Second Operation, specifically

the murder of the following victims: (i) a woman in front of the health centre in

Sayo;98 (ii) people in Mongbwalu99 and Sayo100 during ratissage operations,

including a Lendu woman accused of being a ‘chieftain’ of the Lendu

‘combatants’101 and persons killed at the Appartements camp following

interrogation, including two persons previously detained there;102 (iii) two Lendu

persons in Nzebi;103 (iv) Lendu persons,104 a Ngiti man and a pregnant Lendu

woman who had previously been detained in a pit,105 and a Nyali man106 in Kilo

after the takeover of the village; (v) at least two young children in Kobu during

the assault on the village107 and at least two detained persons during the ratissage

operation108 that followed; (vi) nine hospital patients in Bambu;109 (vii) a woman

who was raped and who tried to defend herself110 and P-0018’s sister-in-law111 in

97
Judgment, paras 532 to 533, 737 and 1199.
98
Judgment, paras 506 and 1199.
99
Judgment, paras 512 and 1199.
100
Judgment, paras 526 and 1199.
101
Judgment, paras 513 and 1199.
102
Judgment, paras 528 and 1199.
103
Judgment, paras 510 and 1199.
104
Judgment, paras 543 and 1199.
105
Judgment, paras 546 and 1199.
106
Judgment, paras 547 and 1199.
107
Judgment, paras 573 and 1199.
108
Judgment, paras 577 and 1199.
109
Judgment, paras 587 and 1199.
110
Judgment, paras 600 and 1199.
111
Judgment, paras 600 and 1199.

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Sangi; (viii) some men who were raped by UPC/FPLC soldiers in Kobu;112 and

(ix) at least 49 persons in a banana field near the Paradiso building in Kobu.113

41. The Chamber also found Mr Ntaganda responsible for the attempted murder by

UPC/FPLC soldiers of P-0018,114 P-0019,115 P-0022,116 P-0108117 and a patient of

Bambu hospital,118 in the context of the First and Second Operation.

42. As noted above, in determining the appropriate sentence the Chamber has taken

into account the fact that the same conduct underlies Mr Ntaganda’s convictions

for both murder as a crime against humanity (Count 1) and murder as a war

crime (Count 2).

43. As to Count 3, the Chamber found Mr Ntaganda responsible as an indirect co-

perpetrator for intentionally directing attacks against civilians in Mongbwalu 119

and Sayo,120 in the context of the First Operation, and in Bambu, 121 Jitchu,122 and

Buli,123 in the context of the Second Operation.

1. Gravity

a) Gravity of the crimes Mr Ntaganda has been convicted of

i. Murder and attempted murder (Counts 1 and 2)

44. Those murdered are deprived of their lives, which constitutes the ultimate harm.

Furthermore, relatives and dependants left behind are deprived of a family

member, and thereby of love and care, and, depending on the situation, of

112
Judgment, paras 623 and 1199.
113
Judgment, paras 628, 633 and 1199.
114
Judgment, paras 601 and 1199.
115
Judgment, paras 622, 632 and 1199.
116
Judgment, paras 546 and 1199.
117
Judgment, paras 628 and 1199.
118
Judgment, paras 587 and 1199.
119
Judgment, paras 906-907, 918 and 922-923.
120
Judgment, paras 908, 918 and 922-923.
121
Judgment, paras 911, 918 and 926.
122
Judgment, paras 914, 918 and 927.
123
Judgment, paras 914-915, 918 and 927.

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support, be it financial, physical, emotional, psychological, moral, or otherwise. 124

Murder is inherently one of the most serious crimes. Bearing in mind these

general considerations, the Chamber turns to the concrete circumstances of the

case.

45. The Chamber found that Abbé Boniface Bwanalonga, a Lendu man who was

serving as a Catholic priest at the Mongbwalu parish, was captured by the

UPC/FPLC and interrogated at the Appartements camp during the First

Operation.125 After the interrogation, Mr Ntaganda ordered his bodyguards to

take Abbé Bwanalonga behind the Appartements, where Mr Ntaganda shot and

killed him.126

46. The Chamber received evidence on the impact of Abbé Bwanalonga’s death from

P-0824 who knew him personally. 127 Having served as a priest for 40 years,

Abbé Bwanalonga was a well-known person in Ituri. 128 After his murder, the

Abbé’s death became notorious among the clergy and the population. 129 P-0824

was approached by many people, who expressed their regrets about the

murder.130 P-0824 further testified that the nuns who were abducted by the

UPC/FPLC together with Abbé Bwanalonga still refuse to speak about what

they witnessed.131 Even now, many years after the event, some Lendu

reportedly still refer to the murder of the Abbé.132

124
See similarly Bemba Trial Judgment, para. 29.
125
Judgment, paras 529-530 and 532.
126
Judgment, para. 533.
127
The Chamber considers P-0824’s evidence on this point to be credible and reliable, noting his basis of
knowledge and that his evidence on this point is supported in part by contemporaneous sources (see
footnote 130 below). However, on other points where the witness’s basis of knowledge is unclear, the
Chamber has not relied on his evidence (see footnote 132 below).
128
P-0824: DRC-OTP-2109-4426, at 4431, para. 26.
129
P-0824: DRC-OTP-2109-4426, at 4432, para. 28.
130
P-0824: DRC-OTP-2109-4426, at 4429, para. 18,at 4432, para. 26. See also the 2002-2003 MONUC report
to the UN Security Council: DRC-OTP-0074-0422, at 0457, para. 124, describing that the disappearance of
Abbé Boniface Bwanalonga was very badly received by the Lendu/Ngiti community, who held the Abbé in
high esteem.
131
P-0824: DRC-OTP-2109-4426, at 4432, para. 28.
132
P-0824: DRC-OTP-2109-4426, at 4431, para. 32. The Chamber notes the Prosecution’s submissions, relying
on P-0824 (and P-1000), that the murder of the Abbé resulted in traumatisation, divided the clergy along ethnic

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47. Turning to the murders and attempted murders committed during the First and

Second Operation, the Chamber established that UPC/FPLC soldiers, and, in

certain instances, Hema civilians, acting under the control of the co-perpetrators,

including Mr Ntaganda, murdered at least 73 individuals,133 and attempted to

murder five others,134 in addition to making broader findings of murders of

unquantified numbers of persons.135 The Chamber therefore considers the scale of

the crime of murder to be large.136

48. The Chamber notes that the murders occurred regularly and repeatedly during

the course of the First and Second Operation, each operation lasting for over a

week, in several different locations. Some incidents were committed during the

assaults on particular villages,137 some in their aftermath. In particular, members

of the UPC/FPLC and Hema civilians searched from house to house, killing

people during the ratissage operations in Mongbwalu138 and Sayo.139 Following

the assault on Kilo, the population was called out to return from the bush, while

the UPC/FPLC began to go after the Lendu in the village, including at night in

their homes, killing some of them.140 In Mongbwalu,141 Nzebi,142 Kobu143 and

lines, aggravated the ethnic conflict among the population, furthering the feelings of revenge and cycle of
other crimes (Prosecution Submissions, paras 30-31). However, the Chamber considers that these witnesses,
who were not called as experts nor qualify as such on this matter, cannot be relied on to make findings on
these alleged psychological or social consequences. See also submissions in Defence Response, paras 60-62.
133
See para. 40 above.
134
See para. 41 above.
135
On the murders of unquantified numbers of persons see, e.g., Judgment, paras 512, 526, 889 and 1199,
referring to people killed in Mongbwalu and Sayo during ratissage operations; Judgment paras 528, 891 and
1199, referring to the killing of persons at the Appartements camp following interrogation; and Judgment
paras 543, 893 and 1199, referring to the killing of Lendu persons in Kilo after the takeover of the village.
136
The Prosecution and the Legal Representative of the Victims of the Attacks argue that ‘the extent of
victimization’ (CLR2 Submissions, paras 31 and 40) and ‘the massive scale’ (Prosecution Submissions, para.
14) of crimes Mr Ntaganda was convicted of, including murder, should be treated as an aggravating
circumstance. In its discretion, the Chamber has considered the scale of the crimes and the number of victims
under its gravity assessment both for the present type of crimes, as well as the other types discussed below.
137
Judgment, paras 506 (killing of a Lendu woman in front of the health center in Sayo), 573 (killing of at least
two young children as they attempted to flee the assault in Kobu) and 587 (killing of nine patients at the
hospital in Bambu).
138
Judgment, para. 512.
139
Judgment, para. 526.
140
Judgment, para. 543. Furthermore, a Ngiti man and a pregnant Lendu woman were detained in a pit together
with other individuals and subsequently killed (Judgment, paras 545-546), a UPC/FPLC soldier cut P-0022’s
neck and left her for dead in a pit (Judgment, para. 546), and a Nyali man was shot and killed by a member of
the UPC/FPLC while fetching water for singing an anti-Hema song (Judgment, para. 547).

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Sangi144 victims were captured and, in some instances, detained at various

locations prior to their murder or attempted murder.

49. As discussed next, some individuals who survived or witnessed these crimes still

bear permanent scars. The Chamber received testimony from these persons

themselves, as well as from experts, on their traumatisation resulting from the

crimes committed against them or those close to them, and/or from the crimes

which they personally witnessed.145

50. For instance, P-0108 was struck on the head with a machete by a UPC/FPLC

soldier as he tried to flee the Kobu massacre.146 He was later found by his family

members, who took him home.147 P-0108’s injuries had long-term, serious

consequences. According to Ms Sophie Gromb-Monnoyeur, an expert in forensic

medicine and clinical examination, P-0108’s skull was significantly deformed as a

result of his injury and he exhibited long-term memory loss, vertigo and

neurological disturbance.148 P-0018 was shot through her cheek and mouth after

being raped.149 Psychological expert Dr Maeve Lewis found that P-0018’s self-

141
Judgment, paras 513 (killing of a Lendu woman accused of being a chieftain of the Lendu ‘combatants’ after
being detained and interrogated at ‘Salumu’s camp’) and 528 (killing of persons after being questioned at the
Appartements camp).
142
Judgment, para. 510 (killing of two Lendu persons who had been captured pursuant to Mr Ntaganda’s order).
143
Judgment, paras 577 (killing of at least two persons captured during the ratissage operation), 620-621, 628,
633 (killing of at least 49 persons in a banana field near the Paradiso building, some of whom had been
previously captured in Sangi, Gola, Buli and the surrounding bush and were detained in a number of different
houses in Kobu), 632 and 822 (P-0019’s attempted killing).
144
Judgment, paras 600 (killing of a woman who was raped and tried to defend herself and of P-0018’s sister-in-
law), 601 and 880 (P-0018’s attempted killing).
145
See also submissions in Prosecution Submissions, para. 29. The Prosecution and the Legal Representative of
the Victims of the Attacks argue that extensive damage and long-term harm are an aggravating factor (see
Prosecution Submissions, paras 4 and 28-32; and CLR2 Submissions, para. 40). However, in its discretion the
Chamber has considered the harm and the impact of the crimes under its gravity assessment, for the present
type of crimes, as well as the other types discussed below. The Chamber further emphasises that in order to
analyse the gravity of the crimes of which Mr Ntaganda was convicted for the purposes of sentencing, it takes
into account only the damage and harm that in its assessment: (i) has been proven beyond reasonable doubt;
and (ii) can be directly linked to the crimes and culpable behaviour of Mr Ntaganda.
146
Judgment, para. 628.
147
Judgment, para. 635.
148
P-0939: DRC-OTP-2059-0146-R02, at 0152 and 0153; and Judgment, footnote 1975.
149
Judgment, para. 601.

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image has been distorted and she is embarrassed by the extensive scarring on her

face.150

51. Following the murders in the banana field in Kobu, people who went to the

location to see what had happened discovered the often mutilated bodies of those

killed,151 including bodies of those they had known152 and of their family

members.153

52. The murders, therefore, irreversibly impacted not only the direct victims but

also those who witnessed them, and the direct victims’ family members and

relatives left behind.

ii. Intentionally attacking civilians (Count 3)

53. The war crime of intentionally targeting civilians violates the principle of

distinction, which is at the core of international humanitarian law. 154 The

prohibition of attacks directed against civilians aims to protect lives and to avoid

the unnecessary suffering of individuals not taking a direct part in hostilities

during an armed conflict. Article 8(2)(e)(i) of the Statute does not require any

actual harm to civilians to ensue from the attack and the crime can be committed

by the its mere launching.155 The Chamber therefore considers the crime of

intentionally attacking civilians to be in abstracto less serious compared to

murder, which requires the actual infliction of harm on the victim. In this light,

150
DRC-OTP-2059-0058-R02, at 0062. As noted in the Judgment, expert Ms Gromb-Monnoyeur concluded that
P-0018’s wound was consistent with her account (P-0939: T-143, pages 15-17; and DRC-OTP-2059-0231-
R01, from 0240 to 0241), and the Chamber noted that the wound can be seen in photographs DRC-OTP-0096-
0133 to DRC-OTP-0096-0136, DRC-OTP-0096-0138 to DRC-OTP-0096-0142, DRC-OTP-0096-0144, DRC-
OTP-0096-0145, DRC-OTP-2052-0207 as well as in DRC-OTP-2059-0231-R01, at 0238, see Judgment,
footnote 1867.
151
Judgment, para. 633.
152
Judgment, para. 634.
153
Judgment, footnote 2020 (P-0100 testified to having to bury his wife and young son). The Chamber recalls
that it found the witnesses’ narratives of what they felt when they came to the banana field to be personal and
unique, see Judgment, para. 275 and footnote 688, referring to P-0100: T-131, page 67; P-0105: T-135,
pages 42-43; and T-134, page 21; P-0121: T-173, page 17; P-0790: T-54, page 16; P-0792: T-150, page 68;
P-0805: T-26, pages 8 and 31-32; and P-0857: T-193, pages 79-80.
154
Articles 51 and 57 of Additional Protocol I and Article 13 of Additional Protocol II, See also ICTY, Galić
Trial Judgment, para. 27.
155
Elements of Crimes, Article 8(2)(e)(i); and Judgment, para. 904.

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the Chamber has assessed the gravity of the crime in the circumstances of the

present case.

54. The Chamber found that, following Mr Ntaganda’s order in this respect, the

UPC/FPLC attacked Mongbwalu on or about 20 November 2002.156 The attack

lasted approximately three to four days and Mongbwalu was, in line with the

devised strategy, attacked from two sides by the infantry, supported by heavy

weapons.157 The UPC/FPLC soldiers fired at everyone in Mongbwalu, including

at members of the civilian population.158

55. With respect to the Second Operation, the Chamber considered the following

incidents to constitute the crime of intentionally attacking civilians: (i) the use of

heavy weapons in Bambu;159 and (ii) the pursuing of and shooting at fleeing

persons in Jitchu and Buli and in the nearby bush.160

56. Accordingly, Mr Ntaganda was convicted of intentionally attacking civilians in

five locations, committed during both the First and the Second Operation. The

Chamber therefore considers the scale of the crime to be relatively large.

156
Judgment, para. 486.
157
Judgment, para. 486.
158
Judgment, para. 494. The UPC/FPLC soldiers had been instructed to shoot ‘at everybody’, ‘at anything that
moved’ (Judgment para. 488). The Defence argues that the attacks for which Mr Ntaganda was convicted
should be given lesser weight in terms of assessing gravity due to the difficulty for the attackers to distinguish
between fighters and civilians, because the former did not wear uniforms, and the existence of resistance in
both Mongbwalu and Sayo meant that some civilians may have been actively engaged in hostilities (see
Defence Submissions, para. 55; see also Prosecution Response, para. 13). It further avers that the order to
target civilians was meant ‘to prevent counter-attacks’(see also submissions in Defence Submissions, para.
55). In this regard, the Chamber recalls that it carefully assessed all of the evidence underlying its findings
made in the Judgment in relation to the crime under Article 8(2)(e)(i) of the Statute. Any difficulties the
UPC/FPLC may have faced in telling fighters and civilians apart have already been taken into account as part
of the Chamber’s findings regarding Mr Ntaganda’s conviction for this war crime (see also submissions in
Prosecution Response, para. 13). Indeed, as regards some charged incidents, the Chamber concluded that it
could not be established that the UPC/FPLC had intentionally directed an attack at the civilian population as
such or at individual civilians not taking direct part in hostilities (see Judgment, paras 925 and 928). However,
in those instances where the Chamber found the crime to have been committed, the established facts leave no
doubt as to the intention to target civilians, for example, when Mr Ntaganda ordered one of his subordinates to
fire at a group of persons wearing civilian clothing who were fleeing from Sayo (Judgment, para. 508). In this
instance, the UPC/FPLC was no longer faced with any armed resistance and the fleeing persons were not
involved in any hostile action. As there was sufficient time to observe the targeted persons, no reasonable
person could have believed that the targeted persons were directly participating in hostilities and were
therefore targetable.
159
Judgment, paras 583, 585 and 1199.
160
Judgment, paras 926-927 and 1199.

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57. Regarding the impact of the crime of intentionally attacking civilians, the

Chamber discusses the fact that the evidence shows that some civilians were

killed as a consequence of the attacks under aggravating circumstances below.

b) Mr Ntaganda’s degree of participation and intent

i. Murder and attempted murder (Counts 1 and 2)

58. As noted above, Mr Ntaganda was convicted as a direct perpetrator for the

murder of Abbé Bwanalonga.

59. In relation to the other murders and attempted murders committed during the

First and Second Operation, Mr Ntaganda was convicted as an indirect co-

perpetrator. Together with his co-perpetrators, he conceived a plan to drive out

all the Lendu from the localities targeted during the course of the UPC/FPLC’s

military campaign.161 By virtue of this agreement, Mr Ntaganda and his co-

perpetrators meant, inter alia, for civilians to be killed.162

60. Mr Ntaganda was the Deputy Chief of Staff in charge of Operations and

Organisation, controlling the military planning and operations.163 In this position,

he made an essential contribution towards the achievement of the

co-perpetrators’ common plan.164 As established by the Chamber, Mr Ntaganda

had a unique and central role in the setting up of the UPC/FPLC as an efficient

armed group, most notably at the early stages of the group’s activities, when his

skills, experience and initiatives were determinative in increasing the group’s

strength and capacity to carry out its objectives. 165 Furthermore, he had an

161
Judgment, para. 808.
162
Judgment, paras 810 and 1188.
163
Judgment, paras 321-322.
164
Judgment, section V.C.3.c) Contribution of Mr Ntaganda. The Chamber recalls that Mr Ntaganda had the
power to frustrate the commission of the crimes (Judgment, paras 852-856), including the murders and
attempted murders committed during the First and Second Operation.
165
Judgment, paras 833 and 852. In addition to the fact that he occupied a high-ranking position and had
previously undergone officer training in Uganda, the Chamber also found that Mr Ntaganda’s orders were
obeyed and that he inspired fear over the troops (Judgment, paras 312, 321 and 828).

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essential role in the planning, organisation and carrying out of the UPC/FPLC’s

operations during which crimes against the Lendu were committed.166

61. Specifically in relation to the First Operation, in addition to his overall

participation and commanding role in the take-over of Mongbwalu and Sayo, as

described below with respect to Count 3,167 the Chamber found that, in a number

of instances, Mr Ntaganda gave direct orders to kill civilians and endorsed the

criminal conduct of his soldiers by way of his personal conduct.168 Furthermore, it

found that Mr Ntaganda’s direct orders to kill civilians and loot, his active role as

an operational commander and his proximity to the commanders and soldiers

deployed resulted in the commission of crimes.169

62. Notably in relation to the First Operation, Mr Ntaganda showed his troops –

through his own actions – how the orders were to be implemented with regard to

treatment of the Lendu civilians.170 During his stay of at least a week in

Mongbwalu,171 Mr Ntaganda was based at the Appartements camp,172 where,

inter alia, individuals, including Lendu, were detained and some were killed,

including one instance where two individuals were killed pursuant to an order

from Mr Ntaganda.173 Finally, sometime between the assault on Nzebi and

Mr Ntaganda’s return to Bunia, Mr Ntaganda’s bodyguards, upon his orders,

shot and killed two Lendu persons in Nzebi.174 The intensity of his involvement

and his proximity to the murders committed in Mongbwalu, Sayo and Nzebi are

factors which the Chamber considers to increase Mr Ntaganda’s culpability.

166
Judgment, paras 827, 834-846 and 852-854.
167
See paras 70-72 and 74-77 below.
168
Judgment, paras 510, 528 and 851.
169
Judgment, para. 855.
170
Judgment, paras 851, 855 and 1180.
171
Judgment, para. 489.
172
Judgment, para. 527.
173
Judgment, para. 528.
174
Judgment, para. 510.

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63. The Chamber notes the Defence’s submission that the testimony on which the

Chamber’s conviction in relation to the murder of four individuals, two in

Mongbwalu and two in Nzebi, respectively, carried out pursuant to

Mr Ntaganda’s order is based ‘provides very little detail about Mr. Ntaganda’s

motivations or emotional state when he participated in these murders’175 and

that, in light of the available evidence, ‘the personal conduct of Mr. Ntaganda

does not reflect zeal, premeditation or brutality’, while in relation to the murder

of Abbé Bwanalonga, there is ‘considerable doubt and ambiguity […] as to

whether Mr. Ntaganda may have acted out of some momentary anger that

should reduce his culpability’.176

64. In this regard, the Chamber notes that, on the basis of the evidence on the record,

it has not been in a position to make any findings that can be considered for the

purposes of sentencing in relation to Mr Ntaganda’s emotional state at the time

of his involvement in the aforementioned murders. Specifically regarding the

murder of the Abbé, the Chamber considers the Defence’s argument that

Mr Ntaganda may have acted out of ‘momentary anger’ to be speculative. P-0768

testified that he was ‘angered’ about documents found in the Abbé’s room and Mr

Ntaganda questioned the Abbé about these documents, but his evidence does not

indicate that at the time of the commission of the murder, Mr Ntaganda’s

judgment was clouded by anger to such an extent that this ought to reduce his

culpability. In this regard, the Chamber also notes that between the questioning

and the murder, Mr Ntaganda ordered his troops to take the Abbé behind a

building.177 In relation to Mr Ntaganda’s ordering of the execution of the four

persons in Mongbwalu and Nzebi, the Chamber considers that the evidence

similarly does not support Defence’s contention. In this regard, the Chamber

recalls that: (i) the two individuals in Nzebi had been previously captured

175
Defence Submissions, para. 43.
176
Defence Submissions, paras 42-46 and 93.
177
Judgment, paras 530 and 532-533; and P-0768: T-33, pages 55-56.

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pursuant to Mr Ntaganda’s order178 and their murder was ordered following the

realisation that they were Lendu;179 and (ii) the two individuals murdered at the

Appartements camp were first tied up pursuant to Mr Ntaganda’s order,180 and

that one of the persons executing the order had understood that Mr Ntaganda’s

intention in relation to the two persons was that they were to be killed.181

65. With regard to the Second Operation, during which the largest number of

murders found to have been established in the case were committed, 182 the

Chamber found that Mr Ntaganda took part in the relevant planning.183 During

the operation itself, the Chamber found that Mr Ntaganda remained in contact

with the commanders in the field and monitored its unfolding via the UPC/FPLC

radio communications systems.184 He also exercised oversight over the unfolding

and ensured that the deployed forces were carrying out the project as planned.185

66. The Chamber notes that, as opposed to the First Operation, Mr Ntaganda was not

found to have committed himself, or given any direct orders to commit, murders

during the course of the Second Operation. However, the Chamber notes that,

after the conclusion of the Second Operation, Mr Ntaganda indicated his

approval of the behaviour of Salumu Mulenda’s troops in relation to killings in

Kobu.186 In this regard, the Chamber recalls that Mulenda was not disciplined,

including not by Mr Ntaganda, for the killings which occurred in Kobu during

the Second Operation.187

67. All the above considered, the Chamber considers Mr Ntaganda’s degree of

participation and intent regarding the murders and attempted murders

178
Judgment, para. 510.
179
P-0768: T-33, pages 54-55. See also submissions in Prosecution Response, para. 28.
180
Judgment, para. 528.
181
P-0017: T-59, pages 23-24. See also submissions in Prosecution Response, para. 29.
182
See para. 40 above.
183
Judgment, para. 837.
184
Judgment, paras 554 and 565.
185
Judgment, para. 846.
186
Judgment, paras 638 and 1185. See also submissions in CLR2 Submissions, para. 44.
187
Judgment, para. 639.

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committed during both the First and the Second Operation to be substantial. In

assessing Mr Ntaganda’s culpability for the purposes of sentencing, the Chamber

has also taken into account that his degree of participation during this operation

was higher compared to the Second Operation, given the intensity of his

involvement in and his proximity to the some of the murders committed during

the First Operation. The fact that Mr Ntaganda, as one of the highest ranking

military officials of the UPC/FPLC, personally committed the murder of Abbé

Bwanalonga in the presence of his subordinates is further discussed below under

aggravating circumstances.

ii. Intentionally attacking civilians (Count 3)

68. The Chamber recalls that Mr Ntaganda was convicted as an indirect co-

perpetrator for the crime of intentionally attacking civilians. The crime was

committed pursuant to the common plan to drive out all the Lendu from the

localities targeted during the course of the UPC/FPLC’s military campaign,

conceived of by Mr Ntaganda and his co-perpetrators.188 By virtue of this

agreement, Mr Ntaganda and his co-perpetrators meant, inter alia, for civilians to

be attacked.189

69. As elaborated above with respect to Counts 1 and 2 , the Chamber further recalls

Mr Ntaganda’s essential contribution towards the achievement of the

co-perpetrators’ plan and his role in the planning, organisation and carrying out

of the UPC/FPLC’s operations during which crimes against the Lendu, including

the crime of intentionally attacking civilians, were committed.190

70. In relation to the First Operation, the Chamber found that Mr Ntaganda devised

the tactic to approach the enemy191 and played an important role in the

188
Judgment, para. 808.
189
Judgment, paras 810 and 1188.
190
Judgment, paras 827-828, 834-846 and 852-854.
191
Judgment, para. 478.

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preparation of the operation.192 In this context, he provided a briefing to the

troops who would participate in the operation, informing them about the

planned two-side strategy,193 distributed weapons and ammunition – which were

subsequently used in the operation194 – and tested the support weapons which he

had brought with him in front of the troops.195

71. The Chamber found that, pursuant to an order from Mr Ntaganda, the

UPC/FPLC soldiers committed crimes against the Lendu during the course of the

assault on Mongbwalu.196 Mr Ntaganda also gave the final order for the troops to

advance towards Mongbwalu197 and was the overall commander of the assault on

the town: he gave orders to the UPC/FPLC troops who participated in the assault,

including an order for the troops to attack ‘the Lendu’198 and these troops

reported directly to him.199 Mr Ntaganda was one of two persons who ordered

the heavy weapons to be fired and decided on the targets to be fired at.200

72. During the attack on Sayo, although not initially present in the village,

Mr Ntaganda oversaw the assault, received reports from the commanders at the

front line, and communicated orders to them.201

73. The Chamber also takes into consideration that, after joining the troops in Sayo,

as the operation was nearing its end, Mr Ntaganda ordered a soldier to fire with

a grenade launcher at a group of men and women, who the Chamber found to

192
Judgment, paras 479-483.
193
Judgment, para. 482.
194
Judgment, paras 480, 482-483 and 486.
195
Judgment, para. 482.
196
Judgment, para 484 and 841.
197
Judgment, paras 485 and 840.
198
Judgment, para. 493.
199
Judgment, para. 491.
200
Judgment, para. 491.
201
Judgment, para. 500.

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not have been directly participating in hostilities.202 This order was executed,

albeit without resulting in any casualties.203

74. In addition to his direct orders to target civilians, Mr Ntaganda also explicitly

endorsed the criminal conduct of his soldiers by way of his actions.204 For

example, once Mongbwalu was taken over, Mr Ntaganda met with the

commanders who had been involved in the assault to carry out an evaluation of

the operations and congratulated them for the assault that had been carried

out.205 This, in the view of the Chamber, increases Mr Ntaganda’s culpability.

75. With regard to the Second Operation, the Chamber found that Mr Ntaganda took

part in the relevant planning and preparation.206 In one of the preparatory

meetings, Mr Ntaganda gave, together with Floribert Kisembo, instructions to

Salongo Ndekezi and Nduru Tchaligonza to handle the Lipri road.207 The assault

on Lipri formed part of the Second Operation.208 Ammunition which was

subsequently used in the operation was brought to the troops in Bambu pursuant

to an order from Mr Ntaganda.209 Later, in accordance with what was decided at

the preparatory meetings, the Second Operation was further organised by

Floribert Kisembo from Mongbwalu.210

202
Judgment, paras 508 and 922.
203
Judgment, para. 508. See also submissions in CLR2 Submissions, para. 28; and Defence Submissions,
paras 55 and 95. In relation to the Defence’s arguments that the Chamber did not reject P-0017’s testimony
that Mr Ntaganda uttered the words ‘this should discourage them, that they would not have the strength to
reorganise or to launch a counterattack’, implying that the purpose of the order was to prevent a counterattack
and that Mr Ntaganda did not order any further targeting of the group of civilians once they had scattered,
apparently unhurt (Defence Submissions, para. 55), the Chamber considers that neither of the two
aforementioned factors could have legitimised the firing at civilians who were not directly participating in
hostilities, and therefore cannot diminish Mr Ntaganda’s degree of culpability, in particular in relation to
having personally ordered the soldiers operating the artillery to fire at a group of fleeing persons.
204
Judgment, para. 851. See also submissions in Prosecution Submissions, para. 51; and CLR2 Submissions,
para. 44.
205
Judgment, para. 499.
206
Judgment, paras 550-552 and 837.
207
Judgment, para. 552.
208
Judgment, para. 550 and section IV.B.8.c)(2) Assault on Lipri and surrounding villages.
209
Judgment, paras 552 and 557.
210
Judgment, paras 552-553.

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76. During the operation itself, Mr Ntaganda remained in contact with the

commanders in the field and monitored its unfolding via the UPC/FPLC radio

communications systems.211 He also exercised oversight over the unfolding and

made sure that the forces deployed were carrying out the project as planned.212

77. All the above considered, the Chamber assesses Mr Ntaganda’s degree of

culpability for the crime of intentionally attacking civilians during both

operations to be substantial. The intensity of his involvement and his proximity

to the attacks against civilians committed in Mongbwalu and Sayo are factors,

which, the Chamber considers, further increase his culpability for the crime

committed during the First Operation.

2. Aggravating circumstances

a) Murder and attempted murder (Counts 1 and 2)

78. The Chamber considers that some of the murders and attempted murders that

took place during both the First and the Second Operation were committed with

particular cruelty.213

79. For instance, as concerns the attempted murder of P-0022, the Chamber found

that following the attack on Kilo during the First Operation, UPC/FPLC soldiers

detained her and seven other individuals, in a pit in the ground. 214 The detainees,

including P-0022, were repeatedly beaten with fists and wooden truncheons, and

the male detainees were ordered by the soldiers to have sex with the female

211
Judgment, paras 554 and 565.
212
Judgment, para. 846.
213
See also submissions in Prosecution Submissions, para. 19. Regarding the Defence’s submissions that ‘none
of the crimes cited by the Prosecution as crimes having been committed with particular cruelty involved the
direct participation or contemporaneous knowledge of Mr Ntaganda’ (Defence Response, para. 68), the
Chamber considers that ‘particular cruelty’ is an aggravating circumstance, which refers to the factual findings
regarding the manner in which a crime is executed. As such, it can relate to, for example, the means employed
or ‘the circumstances of manner, time and location’, while direct participation or contemporaneous knowledge
are factors relevant for assessment of degree of participation and intent for the purposes of sentencing. The
mode of liability pursuant to which an accused is convicted for a certain crime has no impact on the cruelty of
the crime itself.
214
Judgment, para. 545.

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detainees, which the male detainees tried but failed to do while some of the

soldiers were watching and made fun of them.215 One of the male detainees

inserted his hand twice into P-0022’s vagina and stopped when she began to

struggle.216 The following day, a UPC/FPLC soldier attempted to kill P-0022 by

cutting her neck and throwing her into another pit, where she woke up a few

hours later.217

80. Similarly, the Chamber recalls the brutality of the murder of at least 49 persons in

the banana field in Kobu during the Second Operation:

[Following the departure of the UPC/FPLC] people came to Kobu-

Wadza to see what had happened. Bodies of those killed were
discovered in the banana field. […] Some bodies were naked. Some
sticks and pounders were lying amongst the corpses, but no other
weapons. Some bodies, but not all, had been tied up. Some looked like
they had been beaten to death. Some bodies had slit throats, and some
had been decapitated. Some had other knife cuts. Some looked like they
had been killed by machete. Some had been disembowelled. Some were
missing their genitals and some looked like their genitals had been
perforated with sticks. The body of at least one woman looked like she
had had a baby cut out of her. At least one corpse had bullet wounds
around the mouth. The heads of some bodies had been crushed.218

81. The Chamber considers the particular cruelty of these murders, and of other

murders and attempted murders discussed above and in its Judgment, which

were preceded by beatings,219 sexual and other assaults or rapes,220 as an

aggravating circumstance. These particularly cruel acts caused additional

215
Judgment, para. 545.
216
Judgment, para. 545.
217
Judgment, paras 546 and 878.
218
Judgment, para. 633 (footnotes omitted).
219
See, e.g., Judgment paras 528 and 532.
220
See, e.g., Judgment, paras 513, 545, 600 and 601. In this respect the Chamber notes the Prosecution’s
argument that, as some victims were victimised by multiple crimes, Mr Ntaganda’s ‘sentence should reflect
this […] multi-layered victimization imposed on individual victims’ (Prosecution Submissions, para. 15). In
this respect, the Chamber considers the fact that some of the victims, such as P-0018, P-0019, P-0022 and
P 0018’s sister-in-law, were subjected to rape prior to their murders or attempted murders as an aggravating
circumstance for the purposes of sentencing. Regarding specific individual victims for whom the Chamber
established were subjected to multi-layered victimisation, these are addressed further below when discussing
the other types of crimes (see paras 124 and 194 below). The Chamber has also been conscious not to count
the multi-layered victimisation of some of the victims more than once.

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physical and psychological suffering to those who were subjected to them before

being killed and to those who survived the injuries inflicted.

82. In addition, the Chamber considers the fact that many of the victims were

particularly defenceless, such as individuals who had been previously captured

or detained,221 a pregnant woman,222 babies223 and very young children224 and sick

and disabled persons unable to flee225 to be a further aggravating circumstance.226

83. With respect to the murder of Abbé Bwanalonga, the Chamber notes the fact that

Mr Ntaganda, as a person in a position of authority and as one of the

highest-ranking military officials of the UPC/FPLC,227 personally committed the

crime in the presence of his subordinates, his bodyguards.228 By doing so, he sent

a clear message that violence and the commission of crimes against Lendu

civilians were tolerated and even encouraged by the UPC/FPLC military

leadership,229 which, in the opinion of the Chamber, warrants an aggravation of

the sentence.

84. Finally, the Chamber recalls that the murders were committed with a

discriminatory intent, pursuant to the common plan to drive out all the Lendu

from the localities targeted during the course of the UPC/FPLC’s military

campaign against the RCD-K/ML.230 Since the discriminatory element has been

considered by the Chamber as part of the common plan and thus the mode of

221
Judgment, paras 510, 513, 528-529, 577, 600-601 and 620-621.
222
Judgment, para. 546.
223
Judgment, para. 633.
224
Judgment, para. 573.
225
Judgment, para. 587.
226
See also submissions in Prosecution Submissions, paras 21 and 24; and CLR2 Submissions, para. 41.
227
Judgment, paras 321, 827 and 1179.
228
Judgment, paras 532-533.
229
The Chamber notes that with respect to the crimes Mr Ntaganda was convicted as an indirect co-perpetrator,
his position of authority and the exercise thereof have been taken into account when assessing his degree of
culpability and will therefore not also be considered in aggravation of his sentence. See also submissions in
Defence Response, paras 51-58. Contra Prosecution Submissions, paras 65-75; and CLR2 Submissions,
para. 44.
230
Judgment, paras 808-810. See also Judgment, para. 528,

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liability, and as such in Mr Ntaganda’s degree of participation and intent,231 the

Chamber has not considered it separately as an aggravating circumstance.

However, regarding the murder of the Abbé, the Chamber considers the fact that

Mr Ntaganda intentionally targeted the victim on ethnic grounds, namely by

reason of his identity as a Lendu,232 to constitute an aggravating circumstance.

b) Intentionally attacking civilians (Count 3)

85. The Chamber notes that in some instances persons who did not constitute

legitimate targets at the time of the attack were killed as a result of attacks that

the UPC/FPLC intentionally launched at civilians.233 The Chamber considers

these death to constitute an aggravating circumstance.

3. Conclusion

a) Murder and attempted murder (Counts 1 and 2)

86. Murder is inherently one of the most serious crimes. In the present case, the

Chamber convicted Mr Ntaganda of the murder of at least 74 individuals and the

attempted murder of five more. Mr Ntaganda’s degree of culpability is

substantial in relation to the murders and attempted murders committed during

both the First and Second Operation and, in the Chamber’s view, his degree of

participation was even higher during the First Operation due to his proximity to

and the intensity of his involvement in some of the murders committed during

this operation. The Chamber further identified the following factors in

aggravation: particular cruelty of commission in a number of incidents, particular

defencelessness of some of the victims and, in relation to the murder of Abbé

Boniface Bwanalonga, the fact that Mr Ntaganda as a high-ranking official

231
See para. 34 above.
232
Judgment, para. 749.
233
Judgment, paras 586 (six people, amongst them two children, were killed in Bambu when a shell hit a
civilian compound located in Bambu-Yalala) and 605 (in Buli at least one person was killed by a member of
the UPC/FPLC while being chased into the surrounding bush).

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committed the murder in the presence of his subordinates and the discriminatory

motive/intent of Mr Ntaganda in relation to this murder.

87. Based on the above, and mindful of its findings below in relation to

Mr Ntaganda’s individual circumstances,234 the Chamber considers a sentence of

30 years to appropriately reflect the gravity of the murders and attempted

murders, Mr Ntaganda’s culpability and the aggravating circumstances with

respect to Counts 1 and 2.

b) Intentionally attacking civilians (Count 3)

88. The crime of intentionally attacking civilians is a serious violation of one of the

fundamental principles of international humanitarian law. As a crime which does

not require an actual harm to occur for the elements of the crime to be

established, the Chamber considers it to be less serious than crimes against life

that require the actual occurrence of harm, such as murder. As further detailed

above, the Chamber convicted Mr Ntaganda of intentionally attacking civilians in

five locations, committed during both the First and the Second Operation, which

evidences the relatively large scale of the crime. The Chamber further considers

Mr Ntaganda’s degree of culpability to have been substantial in relation to the

aforementioned attacks and recalls that it considered his degree of participation

during the First Operation to be even higher given his proximity to and the

intensity of his participation in the attacks. The Chamber further identified the

fact that in some instances persons were in killed as a result of the attacks as an

aggravating circumstance in relation to Count 3.

89. Based on the above, and mindful of its findings below in relation to

Mr Ntaganda’s individual circumstances,235 the Chamber considers a sentence of

14 years to appropriately reflect the gravity of the intentional attacks against

234
See section IV below.
235
See section IV below.

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civilians, Mr Ntaganda’s culpability and the aggravating circumstance with

respect to Count 3.

C. Rape and sexual slavery (Counts 4, 5, 6, 7, 8, and 9)

90. The Chamber found Mr Ntaganda responsible for sexual violence crimes

committed against two distinct types of victims, namely members of the civilian

population (Counts 4, 5, 7 and 8) and female UPC/FPLC members under the age

of 15 (Counts 6 and 9). Noting the different factual considerations relevant to the

two types of victims, the Chamber analyses the two types of victims separately

and pronounces a separate sentence for rape and sexual slavery as war crimes for

the civilian victims and UPC/FPLC victims.

91. In relation to the crimes committed against members of the civilian population,

the Chamber found Mr Ntaganda responsible as an indirect co-perpetrator for

rapes by UPC/FPLC soldiers of women and girls during and in the aftermath of

the UPC/FPLC assault on Mongbwalu236 and of girls in Kilo,237 in the context of

the First Operation, and of men, women and girls in Kobu,238 Sangi,239 and Buli240

in the context of the Second Operation.

92. The Chamber also found Mr Ntaganda responsible as an indirect co-perpetrator

for the sexual slavery of P-0113 and of an 11-year-old girl in Kobu and Buli in the

context of the Second Operation.241

93. In relation to the crimes committed against female UPC/FPLC members under the

age of 15, the Chamber found Mr Ntaganda responsible as an indirect

co-perpetrator for the rape of Nadège, an approximately nine-year-old girl, at

236
Judgment, paras 518-523, 535 and 1199.
237
Judgment, paras 545, 548 and 1199.
238
Judgment, paras 579, 622-623, 629 and 1199.
239
Judgment, paras 599-601 and 1199.
240
Judgment, paras 607 and 1199.
241
Judgment, paras 579, 606-608, 627, 629, 631 and 1199.

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Camp Lingo,242 and the rape and sexual slavery of P-0883, a girl under 15 years of

age, at Camp Bule243 and of Mave, a girl under the age of 15 assigned as a

bodyguard to Floribert Kisembo.244

94. As noted above, for the purpose of its analysis, the Chamber has taken into

account the fact that some of the conduct underlying the convictions for rape and

sexual slavery is the same.245 Its assessment of sexual slavery for both the civilian

victims and the female members of the UPC/FPLC under the age of 15 therefore

encompasses only the additional element of the exercise of a power of ownership.

The Chamber has also taken into account the fact that for the sexual violence

crimes committed against members of the civilian population, the same conduct

underlies Mr Ntaganda’s convictions for both rape as a crime against humanity

(Count 4) and rape as a war crime (Count 5) and for both sexual slavery as a

crime against humanity (Count 7) and sexual slavery as a war crime (Count 8).

1. Gravity

a) Gravity of the crimes Mr Ntaganda has been convicted of

95. The Statute and the Rules accord a special status to sexual violence crimes,

crimes against children, and the victims thereof.246 During the drafting process of

the Rome Statute, the especially grave nature and consequences of sexual

violence crimes, in particular against children, were recognised.247

242
Judgment, paras 410 and 1199.
243
Judgment, paras 409 and 1199.
244
Judgment, paras 411 and 1199.
245
See paras 26 and 31 above. The Chamber recalls in this respect that its findings on the second legal element
of sexual slavery, both as a crime against humanity and as a war crime, are based on its findings that the
victims had been subjected to rape by members of the UPC/FPLC (Judgment, paras 955 and 975).
246
See Bemba Sentencing Judgment, para. 35, referring to Articles 36(8)(b), 42(9), 43(6), 54(1)(b) and 68(1)
and (2) of the Statute; and Rules 16(1)(d), 17(2)(a)(iv), 17(2)(b)(iii), 17(3), 19(f), 63(4), 70, 72(1), 86, 88(1),
88(5) and 112(4) of the Rules.
247
Bemba Sentencing Judgment, para. 35.

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96. The inherent gravity of sexual violence crimes has been acknowledged in the

jurisprudence of the ad hoc tribunals.248 The ICTY trial chamber in Kunarac et al.,

for example, noted that ‘rape is one of the worst sufferings a human being can

inflict upon another’.249 In Mucić et al. the trial chamber considered ‘[t]he rape of

any person to be a despicable act which strikes at the very core of human dignity

and physical integrity’.250 The Chamber agrees with these observations,251 and

against this background has considered the gravity of the crimes of rape and

sexual slavery as crimes against humanity and as war crimes in the circumstances

of the present case.

i. Sexual violence crimes committed against members of the civilian

population (Counts 4, 5, 7, and 8)
97. In relation to rape (Counts 4 and 5), the Chamber recalls its finding that the

underlying acts of rape were committed during and in the immediate aftermath

of the UPC/FPLC’s assault on Mongbwalu252 and in Kilo during the First

Operation,253 and throughout the temporal scope of the Second Operation,

specifically in Kobu, Sangi and Buli.254

98. While the precise number of rape victims was not established by the Chamber,

the Chamber made findings on at least 21 specific victims of rape, in addition to

making broader findings of rapes of unquantified numbers of persons. 255 The

Chamber therefore considers the scale of the crime of rape to be significant.

248
See also submissions in CLR1 Submissions, paras 37-38.
249
ICTY, Kunarac et al. Trial Judgment, para. 655.
250
ICTY, Mucić et al. Trial Judgment, para. 495.
251
As part of the present case, the Appeals Chamber agreed with the finding of this Chamber that ‘there is never
a justification to engage in sexual violence against any person; irrespective of whether or not this person may
be liable to be targeted and killed under international humanitarian law’: ICC-01/04-02/06-1962, para. 65.
252
Judgment, paras 518-523 and 535.
253
Judgment, paras 545 and 548.
254
Judgment, paras 579, 599-601, 622-623 and 629.
255
Judgment paras 940-941, 946-948 and 1199. The Chamber notes that: (i) in relation to Mongbwalu, it made
specific mention of seven victims (Judgment, paras 518-523), and found more broadly that soldiers and
commanders raped an unquantified number of women at the Apartments camp (Judgment, para. 535).; (ii) in
relation to Kilo, it made specific mention of one victim (Judgment, para. 545), and found more broadly that
UPC/FPLC soldiers and commanders used their influence on girls in Kilo to have sexual intercourse with

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99. The Chamber further recalls that, in many instances, it found that the acts of rape

were accompanied by physical violence against the victims or other individuals

present, both before and during the invasion of the victims’ bodies.256 For

example, one girl was violently undressed and had a cloth put over her mouth to

muffle her screams as a UPC/FPLC soldier was raping her.257 P-0022 was hit on

the back of her head with a rifle butt and thrown in a makeshift underground

prison before UPC/FPLC soldiers forced another detainee to insert his hand into

her vagina.258 Other rape victims were also captured, physically restrained and/or

hurt by their perpetrators.259

100. Perpetrators also used explicit and implicit threats of force, including the

showing of their weapons to the victims,260 and some told victims that they

would be killed if they cried out or refused to cooperate.261 Victims who were

taken to the bush to be raped after the ‘pacification meeting’ had at least two

individuals killed in front of them.262

101. In relation to the crimes of sexual slavery (Counts 7 and 8), the Chamber notes

that the number of victims is two, an 11-year-old girl and P-0113. In relation to

them (Judgment, para. 548); (iii) in relation to Sangi, it made findings on the rapes women captured together
with P-0019 (Judgment, para. 599), and made specific mention of the rapes of P-0018 and six other women
(Judgment, paras 600-601); (iii) in relation to Buli, it made specific mention of P-0113’s rape (Judgment, para.
607); and (iv) in relation to Kobu, it made specific mention of the rapes of P-0113 (already counted under
Buli), P-0019, other women and girls including an 11-year-old girl and at least three men (Judgment, paras
579, 622-623 and 629). In relation to the Defence’s assertion that the Chamber did not expressly state that it
found beyond reasonable doubt that any women who were brought back to the Appartements camp were
actually raped (Defence Submissions, paras 35 and 48-50), the Chamber refers to its factual findings in
paragraph 535 of the Judgment and the legal findings in paragraphs 940-948 and 1184 which make clear that
the Chamber reached a beyond reasonable doubt finding that rapes occurred at, inter alia, the Apartments
camp. Insofar as the Defence challenges the Chamber’s findings in relation to the occurrence of rape at the
Appartements camp, the Chamber further considers that the present sentencing proceedings do not constitute
the adequate forum for the making of such arguments. See also submissions in Prosecution Response, para. 8.
256
Judgment, para. 943. The Chamber notes that this conduct could also qualify as cruel behaviour towards the
victims and as such could be considered as an aggravating circumstance, but as the Chamber relied on the
existence of this conduct to establish the second legal element of rape, namely that the invasion was
committed by force, threat of force, or in an coercive environment, the Chamber only discusses these threats
of and uses of force under the concrete gravity of the crime.
257
Judgment, para. 519.
258
Judgment, para. 545.
259
Judgment, paras 522, 599-601, 607 and 622.
260
Judgment, paras 523, 535, 601 and 944.
261
Judgment, paras 600-601, 607 and 944.
262
Judgment, paras 600 and 944.

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the element of the exercise of a power of ownership, the Chamber recalls that it

found that both victims were captured during the Second Operation,263 and were

subjected to deprivations of liberty lasting several days or even weeks. 264 The

Chamber also recalls that it heard evidence that the 11-year-old girl was forced to

have ‘sexual relationships’ with her captor to save her life265 and that P-0113, after

having witnessed many Lendu being killed during the Kobu massacre, obeyed

one of her rapist’s commands to go with him to Bunia, because she feared for her

life.266

102. As illustrated below, the evidence before the Chamber establishes that the

victims of rape and sexual slavery (Counts 4, 5, 7 and 8) in this case suffered

physical, psychological, psychiatric and social consequences (ostracisation,

stigmatisation and social rejection), both in the immediate and longer term. Some

of the effects were also experienced by the victims’ family members and

communities.

103. In terms of physical consequences, after she was raped by two UPC/FPLC

soldiers in Mongbwalu, for example, the Chamber found that a 13-year-old girl

was bleeding profusely, had difficulty walking, and was unable to speak for a

day.267 She suffered external and internal wounds to her vagina which took

several months to heal and required surgery years later.268 Another victim,

approximately 14 years old at the time, suffered swelling in parts of her body. 269

P-0018 fought back as a soldier raped her and as a result injured her arm and

263
Judgment, paras 579 and 606.
264
Judgment, paras 579, 606-608, 627, 629 and 631.
265
Judgment, para. 579.
266
Judgment, paras 628 and 631.
267
Judgment, paras 519-520.
268
Judgment, para. 520; and P-0912: T-148, pages 67-68.
269
Judgment, para. 521.

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back.270 The Chamber also found that, following their rape, male victims of rape

‘suffered a great deal’ before their deaths.271

104. The Chamber also established that the aforementioned 13-year-old victim

incurred a long-lasting fear, which caused her to drop out of school.272 Following

her rape, the girl would remove herself from her family’s company because she

found it difficult to stay around other people.273 She also no longer wanted to

help with her family’s business.274 The Chamber heard:

[…] [H]er life changed. She became very ashamed and she could no
longer play with her friends and her school results suffered […] as a
result of what she had experienced. On occasion she would go to school,
then she would leave class whilst other children continued to study. She
was virtually isolated from what went on at school.275

105. Furthermore, in terms of psychological, psychiatric and social consequences,

the Chamber heard evidence from psychological expert Dr Lewis, who testified

about common and universal consequences suffered by victims of sexual

violence and who conducted clinical assessments of three rape victims in this

case (namely, P-0018,276 P-0019277 and P-0113278), to determine whether they

suffered any psychological harm as a result of their experiences. On the basis of

their subjective reports of symptoms, Dr Lewis concluded that P-0018,279 P-0019280

270
Judgment, para. 601.
271
Judgment, para. 623.
272
Judgment, para. 520.
273
P-0892: T-85, pages 30-31.
274
P-0892: T-85, page 31.
275
P-0892: T-85, page 30.
276
DRC-OTP-2059-0058-R02.
277
DRC-OTP-2059-0080-R03.
278
DRC-OTP-2059-0069-R04. The Chamber notes that P-0113 was also sexually enslaved, in addition to being
raped.
279
DRC-OTP-2059-0058-R02, from 0063 to 0064. A detailed account of P-0018’s symptoms can be found in
DRC-OTP-2059-0058-R02, from 0062 to 0064. See also P-0938: T-114, pages 6-8. See also submissions in
Prosecution Submissions, para. 34.
280
DRC-OTP-2059-0080-R03, at 0085. A detailed account of P-0019’s symptoms can be found in DRC-OTP-
2059-0080-R03, from 0084 to 0085. See also P-0938: T-114, pages 8 to 9, although acknowledging that some
symptoms have recently decreased (DRC-OTP-2059-0080-R03, from 0084 to 0085). See also submissions in
Prosecution Submissions, para. 34.

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and P-0113281 suffered clear psychological harm dating from ‘the events in Ituri in

2003’, and found that all three victims meet the criteria for a diagnosis of Post-

Traumatic Stress Disorder (‘PTSD’). Dr Lewis further explained that the

universal, core and perhaps most pervasive experience of sexual violence for

women who have been raped or sexually assaulted is that of shame.282 The

Chamber notes that these symptoms were reported by P-0018,283 P-0019284 and

P-0113.285

106. Dr Lewis also referred to other universal reactions to experiencing sexual

violence such as issues with sexuality, for example engaging in marital relations

with a spouse, which she found present in the clinical examination of P-0018,286

and distortion of self-image, which she noted in the case of P-0113.287

107. The Chamber also heard testimony to the effect that rape would result in

stigma and ostracisation for the victims.288 P-0113 fears exposure in her

community289 and P-0019 feared being ostracised because of her rape. 290

281
DRC-OTP-2059-0069-R04, at 0074. See also P-0938: T-114, page 12. A detailed account of P-0113’s
symptoms can be found in DRC-OTP-2059-0069-R04, from 0073 to 0074. See also P-0938: T-114, page 10.
See also P-0113: T-118, pages 65 and 67. See also submissions in Prosecution Submissions, para. 34.
282
P-0938: T-113, page 54. In this regard, she explained that typically individuals who have been sexually
violated, feel ‘contaminated, dirty, unclean’, because of the nature of the ‘very private’ violation they have
experienced: P 0938: T-114, page 8.
283
P-0018 described feeling ‘ashamed and dirty’, DRC-OTP-2059-0058-R02 at 0062.
284
P-0019 described intense shame regarding her rape, DRC-OTP-2059-0080-R03, at 0085.
285
P-0113 described feeling very ashamed of herself about the rapes, DRC-OTP-2059-0069-R04, at 0073.
286
P-0938: T-114, page 7.
287
P-0938: T-114, pages 10-12.
288
P-0365 explained that it was very difficult for female victims of sexual violence to be reintegrated into their
family and communities and that the stigmatisation associated with rape for women existed in all communities
without distinction (P-0365: T-147, pages 34-35). The witness also explained how young girls would be less
respected in their family and would not be able to find a husband because ‘no man would like to marry them
because any man looking for a wife would not want to be identified in the society as one who has taken a
raped girl for a wife’ (P-0365: T-147, page 36). She testified that throughout communities, a raped person
would be considered to be ‘of lesser status’ and that victims would hide their rape in order to avoid social
consequences (P-0365: T-147, pages 36-37). P-0014 corroborated these observations, testifying that, ‘You
may also want to understand that in our culture, […] if my wife is raped, I no longer feel like a man and I can
no longer stand tall in front of anybody because I am covered in shame. That is the feeling I would have if my
wife is raped. So that also amounts to having been vanquished somehow. That is why it becomes impossible
for me then to stand and to demonstrate that I am the defender and the protector of my wife’ (P-0014: T-138,
pages 100-101).
289
P-0938: T-114, pages 10-12.

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Moreover, P-0018 believed that her husband would abandon her if he were to

find out, and was terrified of the response of her community if she disclosed that

she had been raped.291

ii. Sexual violence crimes committed against female members of the

UPC/FPLC under the age of 15 (Counts 6 and 9)
108. The Chamber recalls at the outset that, notwithstanding its findings that

female members of the UPC/FPLC were regularly raped and subjected to sexual

violence during their service and that this was a common practice generally

known and discussed within the UPC/FPLC,292 as a result of the manner in which

the relevant charges were framed by the Prosecution (and confirmed by Pre-Trial

Chamber II), the Chamber only considered for the purposes of these crimes those

victims who were under 15 years of age at the relevant time. In this respect, the

Chamber was able to make findings on, and enter convictions in relation to three

individuals for the purposes of rape (P-0883, Mave and Nadège), and two for the

purposes of sexual slavery (P-0883 and Mave).293 It is therefore in relation to these

three individuals that the Chamber has assessed the gravity of Mr Ntaganda’s

crimes under these counts, notwithstanding that the Chamber recognises that

this is not representative of the number of female UPC/FPLC victims who were

subjected to rape and sexual violence, given the Chamber’s finding that such

conduct against female members was a common practice in the UPC/FPLC

during this time period.294

290
P-0019 delayed reporting her experiences, because she felt that men would fear her if they knew she had
been raped, P-0019: T-115, page 56; P-0938: T-114, page 10; and DRC-OTP-2059-0080-R03, from 0083 to
0084.
291
P-0938: T-114, page 8; DRC-OTP-2059-0058-R02, at 0062 and 0064; and generally P-0938: T-113,
pages 49-50, 55-56, 62 and 66-67; and T-114, pages 3-4. See also P-0365: T-147, pages 34-36, describing
how victims of sexual violence faced rejection by their husbands or even if not rejected, there would be pain
and suffering within the household.
292
Judgment, paras 407 and 1196.
293
The Chamber recalls that in addition to the three specific examples discussed, the Chamber also heard other
evidence about the rape of PMFs under the age of 15 by UPC/FPLC soldiers or commanders, see Judgment,
footnote 1161.
294
Contra the approach suggested by the Legal Representative of the Former Child Soldiers which is that the
number of victims for the convictions under Counts 6 and 9 should be assessed for the purpose of sentencing

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109. The Chamber recalls that the rapes and acts of sexual slavery of the

aforementioned girls took place during training at UPC/FPLC camps (for P-

0883295 and Nadège296), or during the assignment as an escort to a UPC/FPLC

commander (for Mave297), during a period in which the UPC/FPLC was actively

engaged in military operations and fought opposing armed actors.298 The

Chamber found that this practice of sexual violence could occur due to the

circumstances in which these vulnerable young girls were kept, notably not being

able to leave.299

110. The Chamber recalls in particular the findings it made in relation to the

coercive environment300 in which the crimes of rape and sexual slavery of these

victims took place: (i) P-0883 was brought to Camp Bule for training, where she

stayed for several months,301 was threatened to be killed in case she tried to flee,302

was forced to engage in sexual intercourse with UPC/FPLC soldiers through the

use of threats, being told that she would be shot if she did not accept,303 and was

kept captive in a state of extreme vulnerability;304 (ii) living conditions in the

UPC/FPLC training camps at the time were harsh,305 recruits were told that they

on the basis of a large geographical area and long period of time, i.e. rape and sexual slavery against children
under the age of 15 incorporated into the UPC/FPLC between on or about 6 August 2002 and
31 December 2003 in Ituri, and that the number of victims for these crimes should be considered as an
aggravating factor (CLR1 Submissions, paras 51-53; and submissions in Prosecution Response para. 15,
arguing that the scale of the crimes against children who were sexually enslaved is large; see also submissions
in Defence Response, paras 70-71 and 77-79).
295
Judgment, para. 409.
296
Judgment, para. 410.
297
Judgment, para. 411.
298
Judgment, para. 984.
299
Judgment, para. 792.
300
The Chamber notes that the Legal Representative of the Former Child Soldiers raises facts establishing the
existence of a coercive environment as aggravating factors, or in the alternative, as matters going to gravity
(CLR1 Submissions, paras 49-50). Noting that the existence of a coercive environment is an element of the
crime, the Chamber has considered these matters under gravity.
301
Judgment, para. 409.
302
Judgment, para. 409.
303
Judgment, para. 409. The Chamber notes that the Legal Representative of the Former Child Soldiers raises
this matter as an aggravating factor (CLR1 Submissions, para. 56). In its discretion, the Chamber has
considered this matter under gravity.
304
Judgment, paras 977-978.
305
Judgment, para. 375.

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would be killed if they tried to flee306 and if recruits did not obey orders, they

were beaten, sometimes very severely;307 and (iii) although Mave was not

necessarily physically confined, she was unable to leave her position as Floribert

Kisembo’s escort,308 and Kisembo allowed her rapes to happen, and as such

placed her at the disposal of those who raped her.309

111. In relation to the extent of the damage in respect of the rape and sexual

slavery of P-0883 and Mave, and the rape of Nadège, the Chamber incorporates

its general findings above about the general consequences of sexual violence

crimes.310 It specifically notes that the victims suffered physical consequences,311

and contracted sexually transmitted diseases, as a result of the treatment that

they were subjected to.312

112. The Chamber also notes the particular psychological and social consequences

suffered by the victims313 and takes into account that the two victims of sexual

slavery had no choice but to stay in close vicinity of their abusers, in the

coercive environment of the UPC/FPLC training camps or as escorts. 314 In

306
Judgment, para. 376.
307
Judgment, para. 377.
308
Judgment, para. 980.
309
Judgment, para. 980.
310
See paras 102-107 above.
311
Judgment, para. 411; and P-0907: T-89, pages 52, 55-57 and 63-64. See also submissions in Prosecution
Submissions, para. 38; and CLR1 Submissions, para. 40.
312
In addition to the findings made on P-0883’s suffering in the Judgment, the Chamber notes the further
specification provided in her testimony before the Chamber: P-0883: T-168, page 34. See also submissions in
Prosecution Submissions, para. 38; and CLR1 Submissions, para. 40.
313
P-0365, who worked with victims of gender-based and sexual violence in Ituri during the temporal period of
the conviction described the particular impact on girls who were associated with armed groups as a result of the
sexual violence they suffered as follows, ‘[C]hildren don't belong in military camps, first of all; and secondly,
those women could not complete their schooling. They did not have the opportunity to […] be brought up by
their family and taught by their families, to have the affection of their family; rather, they had to jump
immediately to an adult stage of their life whereas they were not adults. Their lives, if you like, had been […]
ruptured, if you like, there was a break and they had sexual and other experiences which were not suitable for
their age’ (P-0365: T-147, page 41).
314
Judgment, para. 792.

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relation to Mave, the Chamber further recalls that only after she developed

health problems, soldiers were instructed not to ‘touch’ her anymore.315

113. Particular difficulties were faced by female children under the age of 15 who

had been associated with an armed group in returning to their families and

communities where they returned with a child and where the communities

assumed that these young women had undergone sexual abuses; in this respect,

the Chamber recalls its finding that, after having been raped multiple times at

Bule camp, P-0883 found out that she was pregnant, without knowing ‘who was

responsible for that pregnancy’.316 Children born as a result of sexual violence,

as well as their mothers, faced rejection from their communities.317

b) Mr Ntaganda’s degree of participation and intent

i. Sexual violence crimes committed against members of the civilian

population (Counts 4, 5, 7, and 8)
114. As noted above, Mr Ntaganda was convicted as an indirect co-perpetrator for

rape as a crime against humanity and as a war crime in a number of locations in

the course of the First and Second Operation, and for sexual slavery as a crime

against humanity and as a war crime in the course of the Second Operation.

Together with his co-perpetrators, Mr Ntaganda conceived a common plan by

virtue of which he and his co-perpetrators meant, inter alia, for civilians to be

raped and subjected to sexual slavery.318

315
Judgment, para. 411. The Chamber further recalls P-0887’s observations that Mave ‘looked like someone
who had been traumatised’ (Judgment, para. 411).
316
Judgment, para. 409. The Chamber further notes its finding that a number of these female members of the
UPC/FPLC became pregnant during their time in the UPC/FPLC, see Judgment, para. 407.
317
P-0883: T-167, page 96; T-168, pages 61 and 64-65; and P-0365: T-147, pages 41-42. See also submissions
in Prosecution Submissions, para. 38; and CLR1 Submissions, para. 16. In addition to this issue, the Chamber
notes that the LRVs both raise the general issue of inter- or transgenerational harm resulting from sexual
crimes (CLR1 Submission paras 16 and 43; and CLR2 Submission, para. 40). Noting, however, the complex
questions of causation involved in determining this type of harm to a beyond reasonable doubt standard and
the very general nature in which this type of harm has been referred to by the LRVs, the Chamber does not
consider this further issue here for the purposes of sentencing.
318
Judgment, paras 808, 810 and 1188.

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115. In addition to his contribution in relation to the commission of these crimes,

as described above,319 the Chamber also recalls that some of the rapes which

took place during the First Operation occurred at Mr Ntaganda’s base, the

Appartements camp,320 and that Mr Ntaganda himself was present and aware

that civilian women were brought to the Appartements camp by UPC/FPLC

soldiers and commanders, and even brought women there himself. 321 While not

relying directly or indirectly, on the proposition that Mr Ntaganda personally

committed rapes of civilian women at the Appartements for the purpose of the

present assessment, when assessing Mr Ntaganda’s degree of participation in

relation the rapes committed during the First Operation, the Chamber has taken

into account his presence at the camp, his awareness that women were brought

there, and the fact that he brought women there himself.322

116. The Chamber has also considered its findings that, within the scope of the

common plan, acts of sexual violence against the Lendu were, ‘like the acts of

killings and other acts of physical violence, a tool used by UPC/FPLC soldiers

and commanders alike to achieve their objective to destroy the Lendu

community in the localities under assault’323 and that the intent to destroy and

disintegrate the Lendu community ‘inherently involved the targeting of civilian

individuals by way of acts of killing and raping’.324

117. In light of the above, the Chamber considers Mr Ntaganda’s degree of

culpability to have been substantial in relation to rape as a crime against

humanity and as a war crime committed against members of the civilian

319
See paras 32-38, 60, 65, 71-73 and 75-77 above.
320
Judgment, paras 527 and 535.
321
Judgment, para. 535.
322
Considering its findings on Mr Ntaganda’s role as a co-perpetrator as set out in the present section, as well as
its considerations as set out in paras 32-38 above the Chamber does not consider it necessary to address the
Defence’s arguments as to the alleged lack of advance or contemporaneous knowledge of Mr Ntaganda of
rapes or sexual slavery of civilian victims (Defence Submissions, paras 47-53 and 94; see also submissions in
Prosecution Response, paras 22 and 24; and Prosecution Submissions para. 59).
323
Judgment, para. 805.
324
Judgment, para. 809.

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population during both the First and Second Operation and in relation to sexual

slavery as a crime against humanity and as a war crime committed during the

Second Operation. The intensity of his involvement in, and his proximity to, the

rapes of civilians committed at the Appartements camp are factors which, the

Chamber considers, further increase his culpability for these rapes.

ii. Sexual violence crimes committed against female members of the

UPC/FPLC under the age of 15 (Counts 6 and 9)
118. The Chamber recalls that Mr Ntaganda was convicted as an indirect

co-perpetrator of rape as a war crime and sexual slavery as a war crime

committed against female members of the UPC/FPLC who were under the age

of 15. The Chamber found that Mr Ntaganda was aware that, in the ordinary

course of events, and during the relevant period, the implementation of the

UPC/FPLC’s common plan would lead to, inter alia, the rape and sexual slavery

of children under the age of 15 within UPC/FPLC ranks.325 This is a lower

degree of intent than for the sexual crimes against civilians.326

119. However, the Chamber also recalls Mr Ntaganda’s participation in the

recruitment and enlistment of individuals under the age of 15 and the

UPC/FPLC’s training camps system.327 The Chamber considers that

Mr Ntaganda thereby played an important role in creating the conditions that

led to the sexual abuse of the children under 15 who the Chamber found to have

been subjected to rape or sexual slavery. Furthermore, he exercised control over

the crimes committed by the UPC/FPLC against children under the age of 15

who were, inter alia, raped and sexually enslaved during the course of the

UPC/FPLC’s military campaign.328 In reaching the aforementioned findings, the

Chamber considered that the only reasonable conclusion was that Mr Ntaganda

325
Judgment, paras 808, 811 and 1198.
326
See also submissions in Defence Submissions, para. 86.
327
See paras 186-192 below.
328
Judgment, para. 857.

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knew that rapes and sexual violence were occurring within the UPC/FPLC

ranks, and that female recruits and soldiers under the age of 15 were not

excluded from this practice.329 It noted in this regard, inter alia, that the fact that

female members of the UPC/FPLC were regularly raped and subjected to sexual

violence during their service was generally known and discussed within the

UPC/FPLC,330 as well as that Mr Ntaganda himself, and his chief escort, were

among those who inflicted rape on his female bodyguards.331 In addition, sexual

violence crimes against female members of the UPC/FPLC, including those

under the age of 15, was left largely unpunished, notably within Mr Ntaganda’s

escort.332 The Chamber thus found that UPC/FPLC military leaders, which

included Mr Ntaganda, did not ensure a safe environment for the female

members of the UPC/FPLC, in which they would not be sexually abused by

other members of the group.333

120. In light of the above, the Chamber considers that Mr Ntaganda’s degree of

intent in relation to the commission of rape and sexual slavery against child

soldiers was lower than for the commission of the rape and sexual slavery of

civilians.334 However, his degree of involvement and participation in their

commission was significant.

329
Judgment, para. 1197. See also submissions in CLR1 Submissions, para. 45. Contra submissions in Defence
Submissions, para. 85.
330
Judgment, para. 407.
331
Judgment, para. 407. See also submissions in CLR1 Submissions, para. 47. The Chamber notes that it has not
entered a conviction for such conduct, which was not charged, but has however considered it in assessing
Mr Ntaganda’s mens rea in relation to the crimes underlying Counts 6 and 9 (see Judgment, paras 1196-1198).
Accordingly, the Chamber does also not further consider the Prosecution’s argument that the fact that
Mr Ntaganda abused his position of authority by raping persons in his own escort should be considered in
aggravation (Prosecution Submissions, para. 69).
332
Judgment, paras 411-412, 792 and 1196. The Chamber notes that the Prosecution raises Mr Ntaganda’s
failure to prevent and punish the commission of, inter alia, sexual crimes, despite being in the position to do
so as being an aggravating factor of abuse of authority (Prosecution Submissions, para. 71). The Legal
Representative of the Former Child Soldiers also argues that the hierarchical relationship between the victims
and perpetrators is a factor leading to aggravation of rape and sexual slavery on the basis of abuse of authority
(CLR1 Submissions, para. 54). In its discretion, the Chamber has considered these factors here under degree
of participation and intent.
333
Judgment, para. 792.
334
See also submissions in Defence Submissions, paras 86-87.

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2. Aggravating circumstances

a) Sexual violence crimes committed against members of the civilian

population (Counts 4, 5, 7, and 8)

121. With respect to Counts 4 and 5335 and Counts 7 and 8,336 the Chamber

considers the fact that some victims were very young, and therefore particularly

defenceless, to be an aggravating circumstance.

122. Furthermore, the repeated victimisation of some of the victims, namely the

fact that some victims were raped more than once by the same perpetrator,337 or

were raped by different perpetrators,338 is also considered to be an aggravating

circumstance with respect to Counts 4 and 5.

123. The particular cruelty of some of the rapes is also considered in aggravation

of the sentence with respect to Counts 4 and 5; specifically UPC/FPLC soldiers

used pieces of wood to penetrate the genital openings of some women and the

anal openings of some men captured after the ‘pacification meeting’339 and some

rapes were committed in the presence of other persons, thereby heightening the

victims’ humiliation.340

335
The victims of rape in Mongbwalu included a 13-year-old girl (Judgment, para. 519) and an approximately
14-year-old girl (Judgment, para. 521). In relation to the 13-year-old girl, the Chamber notes that, although in
addressing the Defence’s challenges associated with this finding the Chamber noted that the victim’s precise
age at the time of the rape was not a material issue at hand (see Judgment, footnote 1533), the Chamber is
nonetheless satisfied that the girl was of a young age at the relevant time. One of the victims of rape in Kobu
was aged 11 (Judgment, para. 579). See also submissions in Prosecution Submissions, para. 21.
336
The aforementioned 11-year-old victim of rape in Kobu was also one of the two victims of sexual slavery
(Judgment, paras 579 and 1199). Noting the impact of being kept in a state of deprivation of liberty on a girl of
such a young age, the victim’s age is considered by the Chamber to also constitute an aggravating
circumstance for the purpose of Counts 7 and 8.
337
For example, the 13-year-old girl in Mongbwalu was penetrated by the fingers and the penis of the
perpetrator (Judgment, para. 519) and P-0019 was both vaginally and anally penetrated by the perpetrator
(Judgment, para. 622).
338
For example, the 13-year-old girl in Mongbwalu was raped successively by two UPC/FPLC soldiers
(Judgment, para. 519), a 14 year old was also raped by two soldiers in Mongbwalu (Judgment, para. 521), and
P-0113was raped by a UPC/FPLC soldier and a UPC/FPLC commander (Judgment, paras 607 and 629).
339
Judgment, para. 623. See also submissions in Prosecution Submissions, para. 18.
340
Judgment, paras 519, 521, 545 and 623.

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124. The Chamber also notes that, in a number of instances, rapes coincided with

the commission of other crimes, in particular, sexual violence culminated in

murder or attempted murder, such as the rapes of P-0018, her sister-in-law, P-

0019 and P-0022.341 However, noting that the Chamber already considered, in its

assessment of the appropriate sentence for murder and attempted murder the

fact that several victims of those crimes had been subjected to sexual violence

immediately prior to their murders or attempted murders as an aggravating

circumstance,342 the Chamber does not again take this into account here as an

aggravating circumstance.

125. Finally, the Chamber recalls that the crimes of rape and sexual slavery were

committed with a discriminatory intent, pursuant to the common plan to drive

out all the Lendu from the localities targeted during the UPC/FPLC’s military

campaign.343 Since the discriminatory intent has been considered by the

Chamber as part of the common plan and thus the mode of liability,344 the

Chamber has not considered it separately as an aggravating circumstance.

b) Sexual violence crimes committed against female members of the

UPC/FPLC under the age of 15 (Counts 6 and 9)

126. The Chamber recalls the very young age of all of the victims345 and considers

that, given their youth, the victims were particularly defenceless. In this respect,

the Chamber notes that the requirement that the victims be under the age of 15

is an element of the charges in the present case346 rather than a constituent

element of the crimes of rape and sexual slavery under Article 8(2)(e)(vi) of the

341
Judgment paras 545-546, 600-601, 622, 632, 805, 878, 880, 882 and 943-944. See also submissions in
Prosecution Submissions, para. 18.
342
See para. 81 and footnote 220 above.
343
Judgment, paras 808-810 and 1020
344
See Judgment, paras 808-810. See also para. 34 above.
345
P-0883, 12 years old (Judgment, paras 174 and 179); Mave, under 15 years old (Judgment, para. 411); and
Nadège, approximately nine years old (Judgment, para. 410). See also submissions in Prosecution
Submissions, paras 22-23; and CLR1 Submissions, para. 48.
346
Which were, as discussed below, arbitrarily limited by the Prosecution to persons under the age of 15.

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Statute. The Chamber has therefore considered the young age of each victim

and their particular defencelessness resulting therefrom as an aggravating

factor with respect to Counts 6 and 9.

127. With respect to Count 6 the Chamber further considers the repeated

victimisation of P-0883 and Mave to be an aggravating circumstance. Both were

raped multiple times by multiple soldiers over the period of their sexual

enslavement. Specifically, the Chamber found that Mave was raped by many

different soldiers on a regular basis347 and that P-0883 was raped by many

soldiers, who would come and take her and other girls ‘whenever they

wanted’.348

128. The Prosecution argues that the rape and sexual slavery of female and male

UPC/FPLC soldiers who were over 15, or whose age could not be established

beyond reasonable doubt as under 15, should be considered in aggravation

because these acts are sufficiently linked to the crimes for which Mr Ntaganda

was convicted.349 In this regard, the Chamber recalls that there was no legal

reason warranting a restriction of the charges to members of the UPC/FLPC

under the age of 15, as rape and sexual slavery are prohibited against any person

and constitute war crimes if the armed conflict nexus is established. 350 The

Prosecution nevertheless made the conscious choice to only charge rape and

sexual slavery of persons under the age of 15, and did not seek to amend or

modify the charges after the Chamber’s and Appeals Chamber’s rulings on the

jurisdictional question, thus making it impossible for these alleged crimes to be

considered on their own.

347
Judgment, para. 411.
348
Judgment, para. 409. See also submissions in Prosecution Submissions, para. 17; and CLR1 Submissions,
para. 55.
349
Prosecution Submissions, paras 25-27. See also Prosecution Response, paras 9-10.
350
ICC-01/04-02/06-1707, paras 52-53, as confirmed by the Appeals Chamber: ICC-01/04-02/06-1962,
paras 48, 49, 51, 63 and 64.

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129. The Prosecution now attempts to bring this uncharged conduct in by having it

considered as an aggravating circumstance. However, as this conduct would

have qualified as crimes on their own but fell outside the scope of the charges

because of prosecutorial choices, such conduct has a direct link to these

uncharged alleged crimes. However, it cannot be considered as having a

sufficient link to the crimes for which Mr Ntaganda was convicted, for the

purposes of aggravation.351 The fact that crimes were committed against persons

within an organisation does not mean that their suffering can be an aggravating

circumstance in relation to crimes committed against different victims within

that same organisation. The Chamber therefore agrees with the Defence’s

submissions in this respect352 and declines to aggravate Mr Ntaganda’s sentence

in relation to Counts 6 and 9 based on this uncharged conduct. The Chamber

considers that the requirement of the existence of a ‘sufficient link’ between the

uncharged conduct and the crimes for which Mr Ntaganda was convicted

should be construed restrictively in order to avoid sentencing an individual for

uncharged crimes.353

3. Conclusion

130. As established by the Chamber above, the rape and sexual slavery of civilians

and of female UPC/FPLC members under the age of 15 in this case are very

serious crimes. The victims of these crimes suffered physical, psychological,

psychiatric, and social consequences (ostracisation, stigmatisation and social

rejection), both in the immediate and longer term. The number of civilian

victims of rape in particular is substantial. While the number of female

UPC/FPLC victims under the age of 15 is lower, their rapes were systematic354

351
As noted above, the Chamber considered this conduct in assessing Mr Ntaganda’s mens rea in relation to the
crimes underlying Counts 6 and 9 (see Judgment, paras 1196-1198).
352
Defence Response, paras 17-38.
353
See also para. 18 above.
354
See para. 127 above.

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and, for the victims subjected to sexual slavery, their deprivations of liberty

lasted longer than those of the civilian victims.355 Mr Ntaganda’s level of intent

and participation was substantial as far as these sexual crimes against civilians

are concerned. While his degree of intent in relation to the commission of the

sexual crimes against the UPC/FPLC victims was lower than for the sexual

crimes against civilians, his degree of participation in their commission was

significant. The Chamber further identified the following factors in aggravation

for the civilian victims: for the purpose of Counts 4, 5, 7 and 8, the particular

defencelessness of victims, and for the purpose of Counts 4 and 5, the repeated

victimisation of some of the victims and the particular cruelty of commission in

a number of incidents. For the female UPC/FPLC victims under the age of 15,

the Chamber identified the following factors in aggravation: for the purpose of

both Counts 6 and 9, the particular defencelessness of the victims, and for the

purpose of Count 6, the repeated nature of the victimisation.

131. In determining the sentences for sexual slavery of both the civilian and female

UPC/FPLC victims under the age of 15, as noted above, because the sexual

violence the victims suffered forms the basis of the rape convictions and is

therefore reflected in the sentences for rape, the Chamber considered only the

additional element of exercise of a power of ownership.

132. Based on the above, and mindful of its findings below in relation to

Mr Ntaganda’s individual circumstances,356 the Chamber considers: a sentence

of 28 years to appropriately reflect the gravity of the rapes of civilian victims,

Mr Ntaganda’s culpability and the aggravating circumstances with respect to

355
As noted above in para. 101, whereas the Chamber found that two civilian victims of sexual slavery were
subjected to deprivations of liberty lasting several days or even weeks, it found that P-0883 was systematically
raped in Camp Bule where she stayed for several months (see para. 110 above and the references contained
therein). Although making no finding on the length of time that Mave was deprived of her liberty, the
Chamber noted that she suffered repeated acts of sexual violence, and that an intervention to stop them only
occurred after she had developed serious health problems as a result of the repeated rapes (see para. 112 above
and the references contained therein).
356
See section IV below.

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Counts 4 and 5; a sentence of 12 years to appropriately reflect the gravity of the

sexual slavery of civilian victims, Mr Ntaganda’s culpability and the

aggravating circumstance with respect to Counts 7 and 8; a sentence of 17 years

to appropriately reflect the gravity of the rape of female members of the

UPC/FPLC under the age of 15, Mr Ntaganda’s culpability and the aggravating

circumstances with respect to Count 6; and a sentence of 14 years to

appropriately reflect the gravity of the sexual slavery of female members of the

UPC/FPLC under the age of 15, Mr Ntaganda’s culpability and the aggravating

circumstance with respect to Count 9.

D. Pillage, attacking protected objects, and destroying the adversary’s property

(Counts 11, 17, and 18)

133. The Chamber convicted Mr Ntaganda for three types of war crimes that

concern unlawful conduct directed against property and/or (civilian) objects. As

regards pillage (Count 11), the Chamber recalls that it found Mr Ntaganda

responsible as an indirect co-perpetrator for the appropriation of items in

Mongbwalu and Sayo by UPC/FPLC soldiers and in the case of Mongbwalu –

also by Hema civilians – in the context of the First Operation,357 and pillage by

UPC/FPLC soldiers in Kobu,358 Lipri,359 Bambu,360 and Jitchu,361 in the context of

the Second Operation.

134. The Chamber further found Mr Ntaganda responsible as an indirect

co-perpetrator for intentionally directing an attack against a protected object,

357
Judgment, paras 512, 514-517, 526, 1041 and 1199.
358
Judgment, paras 578, 1041 and 1199.
359
Judgment, paras 569 and 1199.
360
Judgment, paras 589 and 1199.
361
Judgment, paras 617 and 1199.

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namely the health centre in Sayo, in the context of the First Operation (Count

17).362

135. As to the destruction of the adversary’s property (Count 18), the Chamber

found Mr Ntaganda responsible as an indirect co-perpetrator for destroying

houses in Mongbwalu363 and Sayo,364 in the context of the First Operation, and in

Lipri and Tsili,365 Kobu, 366

Jitchu,367 Buli,368 and Sangi,369 in the context of the

Second Operation.

1. Gravity

a) Gravity of the crimes Mr Ntaganda has been convicted of

136. As noted above, not all crimes included in the Statute are necessarily of

equivalent gravity and the Chamber must distinguish, for example, those

against persons from those crimes that target only property.370 Even if

inherently grave, and having the potential to cause severe consequences for the

victims,371 crimes against property are generally of lesser gravity than crimes

against the life and/or bodily integrity of persons.372

137. As far as destroying the adversary’s property is concerned, when destruction

of property concerns houses, the perpetrators do not merely destroy structures,

but they also destroy people’s homes – a place where the victims ought to have

been able to feel shielded and safe. Destruction of houses may therefore be a

362
Judgment, paras 506 and 1199.
363
Judgment, paras 496 and 1199.
364
Judgment, paras 503 and 1199.
365
Judgment, paras 569 and 1199.
366
Judgment, paras 578 and 1199.
367
Judgment, paras 619 and 1199.
368
Judgment, paras 609 and 1199.
369
Judgment, paras 602 and 1199.
370
Katanga Sentencing Judgment, para. 43. See also para. 14 above.
371
For example, if virtually all property of civilians, who had to flee in a hurry, is taken, the pillage may have
severe consequences for the victims and negatively affect their chance of survival.
372
See similarly, Al Mahdi Judgment, para. 77. See also para. 14 above.

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crime against property, but it does not merely impact that property; the crime

also deprives civilians of a private place, a shelter and a sense of security.

138. As regards the directing of an attack against protected objects,373 the Chamber

observes that this crime is based on the IHL principle of distinction and the

general prohibition against attacking civilian objects. The objects listed in

Article 8(2)(e)(iv) are protected by virtue of being civilian, and so long as they

do not lose their civilian protection and qualify as military objectives, they are

immune from attack. However, they also deserve special protection because of

the role these objects, such as medical facilities and schools, play in the daily life

and welfare of the civilian population. The fact that such objects play a special

role (e.g. for the treatment of wounded persons), or portray a special value, both

during peace time and during an armed conflict, makes the crime as such more

grave than the directing of an attack against objects that are protected as regular

civilian objects. Especially in times of armed conflict and during ongoing

hostilities, when as a result of the fighting more persons become injured or

wounded, the protection of medical facilities must be respected. Attacking such

structures disrupts the ability of medical personnel to care for the sick and

wounded. Directing hostile action at such a building is therefore of significant

gravity.

i. Pillage (Count 11)

139. The Chamber found that the UPC/FPLC pillaged, inter alia, furniture,

mattresses, radio and television sets, clothing, livestock, corrugated roofing

sheets and gold.374 The Chamber found that although there was ‘some disparity

in the value of the looted items […] these items represented the bulk of the

victims’ possessions, played an important role in the victims’ day-to-day lives

373
Protected for the purposes of Article 8(2)(e)(iv) of the Statute. The Chamber recalls that under international
humanitarian law all civilian objects are, in principle, protected.
374
See, e.g., Judgment, paras 514, 526 and 569.

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and/or their business’.375 In addition, the pillage of harvest affected the victims’

‘livelihood and availability of food until new crops would had grown and could

be harvested’.376 Many civilians were affected by the looting and were

sometimes left without anything. In Mongbwalu, for example, many inhabitants

returned to their houses to find that nothing was left, as everything had been

taken.377 The pillaging was of a large scale and in some cases lasted for a

considerable period. The looting in Mongbwalu, for example, lasted for about a

week.378

140. The Chamber notes the Defence’s submission that the scale of the pillage

cannot be precisely determined.379 While, on the basis of the evidence on the

record, the Chamber was indeed not able to make findings on the precise

amount of pillaged items, it is evident from the aforementioned recalling of

findings made in the Judgment that pillage was committed on a significant

scale. During the ratissage operations in Mongbwalu and Sayo, for example,

‘house-to-house’ searches were conducted for items to loot,380 and in certain

instances amounted to all belongings of the victims.381

141. The pillage was not merely done by the soldiers in lieu of a salary.382 The

Chamber found that looted items which were considered of high quality or

value were usually given to the commanders, under threat of punishment,

while the soldiers could keep other goods.383

142. The Chamber notes that the Defence appears to challenge the Chamber’s

findings on pillage, inter alia, submitting that the Chamber made incorrect

375
Judgment, para. 1044.
376
Judgment, para. 1044.
377
Judgment, para. 517.
378
Judgment, para. 517.
379
Defence Submissions, paras 60-61 and 65. See in response the submissions in Prosecution Response, para. 12
380
Judgment, paras 512 and 526.
381
See the findings recalled in the previous paragraph.
382
On the lack of payment of members of the UPC/FPLC, see Judgment, paras 324 and 706.
383
Judgment, para. 515.

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inferences based on the evidence,384 and that ‘the Chamber must exclude from

the scale of such pillaging any goods where there is reasonable doubt as to

whether they were intended for military, as opposed to personal, use’.385 In this

respect, the Chamber notes that the sentencing stage before it is not the

appropriate forum to challenge the Chamber’s findings made in the Judgment.

Moreover, in reaching its findings, the Chamber took into account that certain

items ‘could potentially serve a military purpose’ and therefore excluded them

from its conclusions on the conviction for the war crime of pillage. 386 All items

the Chamber found to have been pillaged are therefore taken into account.

143. Based on the foregoing, the Chamber considers the crime of pillage for which

Mr Ntaganda has been convicted to be of serious gravity.

ii. Attack on the Sayo health centre (Count 17)

144. The protected object found to have been attacked by the UPC/FPLC in Sayo

was a health centre. Injured persons were present in the health centre at the

time,387 as could have been expected in times of ongoing hostilities. By

launching an attack against the health centre, a facility that cares for patients,

the perpetrators accepted the consequential severe impact on the welfare and/or

lives of any patients present at the centre at the relevant time. Furthermore, by

attacking the health centre, the UPC/FPLC disrupted the medical care for

persons in need.388 Notwithstanding that the Chamber only found that one

protected object was attacked, the crime Mr Ntaganda has been convicted of is

of serious gravity.

384
Defence Submissions, para. 61.
385
Defence Submissions, para. 62 and, similarly, para. 65.
386
Judgment, para. 1041.
387
Judgment, para. 506.
388
The Chamber found that as a result of the attack on the health centre, ‘[t]hree seriously injured men, as well
as a Lendu woman and her child – who was approximately two years old and whom the woman had brought to
the health centre for treatment – were left behind at the centre’ (Judgment, para. 506).

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iii. Destruction of houses and buildings (Count 18)

145. As to the destruction of property of the adversary, the Chamber notes the

Defence’s submissions that the scale of the destruction of houses was hard to

assess.389 However, the Chamber recalls that the UPC/FPLC destroyed houses

and buildings in or around eight different towns and villages by shelling or

burning.390 The Chamber considers that this crime was therefore committed on a

significant scale, with a considerable geographical spread of the criminal

conduct.

146. In addition, the Chamber notes that the lives of the civilians living in these

places were severely impacted by these acts. The Defence submits that only

thatched-roof houses were burned down and that this type of houses could be

re-built ‘in a day’.391 The Chamber considers that the Defence improperly

attempts to downplay the impact of the destruction. The monetary value of a

structure is not what is protected by the underlying rules of IHL; rather what is

protected is the fact that these structures belong to the civilians who live in

them. When someone’s dwelling is burned down, the allegedly low value of

rebuilding the structure does not change the fact that someone’s home was

destroyed, and that the lives of those living in the dwelling were significantly

disrupted.

b) Mr Ntaganda’s degree of participation and intent

147. The Chamber recalls that, as noted above, it found Mr Ntaganda responsible

as an indirect co-perpetrator for pillage as a war crime, intentionally directing

an attack against a protected object as a war crime and destroying the

adversary’s property as a war crime in a number of locations in the course of

the First and Second Operation. Together with his co-perpetrators,

389
Defence Submissions, para. 63.
390
Judgment, paras 496, 503, 569, 578, 602, 609 and 619.
391
Defence Submissions, para. 64.

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Mr Ntaganda conceived a plan to drive out all the Lendu from the localities

targeted during the course of the UPC/FPLC’s military campaign.392 By virtue of

this agreement, Mr Ntaganda and his co-perpetrators meant, inter alia, for their

property to be appropriated and destroyed and for protected objects to be

attacked.393

148. In addition to his contribution in relation to the commission of these crimes,

as described above,394 the Chamber also recalls that Mr Ntaganda ordered

UPC/FPLC troops who were getting ready to deploy for the First Operation to

attack using the term ‘kupiga na kuchaji’.395 This term was understood by

UPC/FPLC soldiers to mean attacking all the Lendu, including civilians, and

looting their property.396 The Chamber also recalls that some of the goods looted

during the First Operation were taken to Mr Ntaganda’s residence in Bunia397

and that during the assault on Mongbwalu, Mr Ntaganda and Salumu Mulenda

gave orders to fire the heavy weapons and decided which specific objects were

to be shot at.398

149. In light of the above, the Chamber considers Mr Ntaganda’s degree of

culpability to have been substantial in relation to the crimes of pillage and

destroying the adversary’s property during both the First and Second

Operation, and in relation to the crime of intentionally directing an attack

against a protected object committed during the First Operation. Mr Ntaganda’s

more direct involvement with regards to the crimes under consideration during

the First Operation has been considered by the Chamber as a factor which

further increases his culpability.

392
Judgment, para. 808.
393
Judgment, paras 810 and 1188.
394
See paras 32-38, 60, 65, 71-73 and 75-77 above.
395
Judgment, para. 484.
396
Judgment, paras 415, 688 and 801.
397
Judgment, para. 516.
398
Judgment, para. 491.

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150. In relation to the Defence’s arguments concerning a Land Rover vehicle which

would have been seen at Mr Ntaganda’s house,399 the Chamber recalls that it

did not conclude that the appropriation of, inter alia, vehicles, was intended for

private and personal use.400 It did therefore not consider such appropriation in

reaching its conclusions under Count 11,401 and consequently also not in its

assessment of the appropriate sentence.

2. Aggravating circumstances

151. The Chamber found that the pillage, destruction of houses and the attack on a

protected object, took place in villages and towns predominately inhabited by

Lendu.402 However, the Chamber recalls that the discriminatory intent to

commit these crimes has already been taken into account in the mode of

liability.403 It is therefore not separately considered here as an aggravating

circumstance for these specific crimes.

152. Neither the Prosecution nor the Legal Representative for the Victims of the

Attacks identified any specific aggravating circumstances as regards the war

crimes of pillage and destruction of the adversary’s property, and the Chamber

has not found any.

153. With regards to the attack on the Sayo health centre, while the Chamber

recalls that it found that more than one projectile was fired at the health

centre,404 and that the centre was intentionally made the object of the attack, it is

not clear on the basis of the evidence whether the weapon used destroyed the

health centre in full or merely damaged it. It is therefore not clear whether the

399
Defence Submissions, para. 66.
400
Judgment, para. 1041.
401
Judgment, para. 1041.
402
Judgment, paras 1014-1015, 1018 and 1161.
403
See Judgment, paras 808-810. See also para. 34 above.
404
Judgment, para. 506.

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centre was damaged as a result of the crime, and this matter is not considered in

aggravation.

154. The Chamber found that ‘two persons present at the health centre fled

because they felt that they were in danger’, leaving behind at the centre ‘[t]hree

seriously injured men, as well as a Lendu woman and her child’. 405 These

persons who were unable to leave by themselves, and were thus left without

medical care, were, as such, particularly defenceless. This is considered by the

Chamber to be an aggravating factor.

3. Conclusion

155. Based on the above, and mindful of its findings below in relation to

Mr Ntaganda’s individual circumstances,406 the Chamber considers that a

sentence of 12 years to appropriately reflect the gravity of the crime of pillage,

and Mr Ntaganda’s culpability in relation thereto. Noting the serious gravity of

the crime of destruction of the adversary’s property, and Mr Ntaganda’s

culpability in relation thereto the Chamber finds that a sentence of 15 years is

appropriate.

156. As regards the crime of attacking protected objects, the Chamber recalls that

Mr Ntaganda has been convicted for the intentional attack directed at one

protected object. However, in light of the serious gravity of the crime as

discussed above, and noting the aggravating circumstance that the patients

present in the centre were left without medical care as a result of the attack, the

Chamber considers a sentence of 10 years of imprisonment to appropriately

reflect the gravity of the crime and Mr Ntaganda’s culpability in relation

405
Judgment, para. 506.
406
See section IV below.

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thereto, also mindful of its findings below in relation to Mr Ntaganda’s

individual circumstances. 407

E. Forcible transfer of population and ordering the displacement of the civilian

population (Counts 12 and 13)

157. The Chamber found Mr Ntaganda responsible as an indirect co-perpetrator

for forcible transfer of population in Mongbwalu in the context of the First

Operation,408 and in Lipri, Tsili, Kobu, and Bambu in the context of the Second

Operation.409 It also found Mr Ntaganda responsible as an indirect

co-perpetrator for ordering the displacement of the civilian population in the

same locations, in the context of the First Operation410 and the Second

Operation.411

1. Gravity

a) Gravity of the crimes Mr Ntaganda has been convicted of

i. Forcible transfer of population (Count 12)

158. The prohibition of forcible transfer of population is intended to protect the

right of individuals to remain in their homes or communities and not to be

deprived of their property by being forcibly displaced to another location. 412 The

crime under Article 7(1)(d) of the Statute thus constitutes a serious crime in

view of the fact that people are illegally moved against their will or without

having a genuine choice in the matter from the area in which they are lawfully

407
See section IV below.
408
Judgment, paras 497, 1050, 1052-1053, 1057-1061, 1070-1071, 1073-1074 and 1199.
409
Judgment, paras 1051, 1054-1055, 1062-1067, 1072-1074 and 1199.
410
Judgment, paras 1079, 1084-1088, 1095-1096, 1099, 1101 and 1199.
411
Judgment, paras 1079, 1089-1094, 1097, 1100-1101 and 1199.
412
See Commentary to Additional Protocol II, Article 17, para. 4847. See also Stakić Appeal Judgment,
para. 277; Popović et al. Trial Judgment, para. 900; and Simić Trial Judgment, para. 130.

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present, leading to their exclusion from the economic and social life of their

communities.

159. Turning to the circumstances of the present case, the Chamber recalls that the

coercive acts which caused the transfer of the population during the First and

Second Operation are the same acts on the basis of which Mr Ntaganda was

convicted for the crimes underlying Counts 1 to 5, 7 to 8, 11, and 17 to 18.413 The

Chamber has taken this into account in its assessment of the appropriate

sentence for the crime underlying Count 12, in that, in assessing the gravity of

the crime, the Chamber has only considered the additional element of forcible

transfer of one or more persons from the area in which they are lawfully present

without grounds permitted under international law.

160. While the number of forcibly transferred individuals was not established, 414

the Chamber recalls that Lendu individuals were forcibly transferred from a

total of five localities, which the Chamber found to have been in the majority

Lendu.415 The number of persons affected by forcible transfer was therefore

significant.

161. The Chamber further recalls that individuals were forcibly transferred from

the affected localities for some time, in some cases for a prolonged period,416 and

that a great number of those who fled Mongbwalu during the First Operation

413
Judgment, paras 1057-1067, section V.C.4.a) Murder and attempted murder as a crime against humanity and
as a war crime (Counts 1 and 2), section V.C.4.b) Intentionally attacking civilians as a war crime (Count 3),
section V.C.4.c) Rape as a crime against humanity and as a war crime (Counts 4 and 5), section
V.C.4.d) Sexual slavery as a crime against humanity and as a war crime (Counts 7 and 8), section V.C.4.g)
Pillage as a war crime (Count 11) and section V.C.4.l) Destroying the adversary’s property as a war crime
(Count 18). See also submissions in Defence Submissions, para. 90. The Chamber notes that, contrary to the
Defence’s assertion (Defence Submissions, para. 90), the same consideration does not apply to ordering
displacement as a war crime, which does not require the occurrence of ‘coercive acts’ leading to displacement,
but rather an order to displace, see para. 163 below; and Judgment, para. 1080. It further notes that, similarly
as in the case of persecution, the multi-layered victimisation of some of the victims (see Prosecution
Submissions, para. 15) has already been accounted for by the Chamber when imposing the sentences for the
underlying crimes which the Chamber found to have also constituted coercive acts leading to the transfer of
population.
414
See also submissions in Defence Submissions, para. 90.
415
Judgment, paras 470 and 549.
416
Judgment, paras 536, 585 and 722. See also P-0824: DRC-OTP-2109-4426, at 4434, para. 36 and at 38.

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arrived in the Walendu-Djatsi collectivé and concentrated in Lipri, Kobu, and

Bambu,417 localities from which individuals were subsequently again forcibly

transferred.418

162. The Chamber also recalls that some of those who fled Mongbwalu, Lipri, Tsili,

Kobu, and Bambu and went into the bush had to endure harsh living

conditions; they did not have adequate shelter and had insufficient food and

water.419 Even taking into account the Defence’s assertion that the conditions

endured by those forcibly transferred must be measured against the general

conditions of deprivation prevailing at the time which were unrelated to the

commission of the crimes,420 the Chamber considers that the effect of individuals

having to leave their homes against their will put them in a worse situation than

they were in to begin with, and therefore caused them harm.

ii. Ordering the displacement of a civilian population (Count 13)

163. The crime of ordering the displacement of a civilian population as a war

crime is, in the opinion of the Chamber, similarly as the crime under

Article 7(1)(d) of the Statute, intended to protect the right of civilians to remain

in their homes and communities and not to be displaced without justification

during a non-international armed conflict. However, noting that ordering

displacement does not require for displacement as such to actually occur, the

Chamber considers the crime under Article 8(2)(e)(viii) of the Statute to be

in abstracto less serious compared to forcible transfer of population, which

requires the actual infliction of harm on the victims. The Chamber further

recalls that, for the crime to be established, the order to displace needs to refer

to a certain number of individuals.421

417
Judgment, para. 549.
418
See Judgment, section V.C.4.h) Forcible transfer of population as a crime against humanity (Count 12).
419
Judgment, paras 497, 568, 585, 612, 616; and P-0824: DRC-OTP-2109-4426, at 4434-4435, paras 37-39.
420
Defence Response, para. 66.
421
Judgment, para. 1083.

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164. Turning to the circumstances of the present case, the Chamber recalls that,

with respect to the First Operation, it considered the following acts to amount to

ordering the displacement of the civilian population: (i) Mr Ntaganda telling the

troops who were going to attack Mongbwalu to fight against the Lendu and

ordering them to attack using the term ‘kupiga na kuchaji’, which was repeated

down the chain of command by Salumu Mulenda;422 and (ii) Mr Ntaganda’s

order to the UPC/FPLC troops to attack ‘the Lendu’ who were in Mongbwalu,

without making a difference between ‘Lendu civilians’ and the militia. 423 The

Chamber also recalls that Mongbwalu was in the majority inhabited by the

Lendu.424

165. With respect to the Second Operation, the Chamber considered the following

acts to amount to ordering the displacement of the civilian population:

(i) Salumu Mulenda explaining to UPC/FPLC troops prior to the operation that

its objective was to ‘destroy th[e] triangle which was a pocket of resistance to

the UPC’, which was understood by one of his subordinates to entail the

destruction of the ‘enemy’ – which included the Lendu generally, regardless of

sex and age – in the attacked places;425 (ii) Floribert Kisembo telling the troops

going to Kobu that they were to, inter alia, drive out all the Lendu, which was

understood by one of his subordinates to mean that Lendu civilians were to

either leave or be killed;426 and (iii) Salumu Mulenda ordering the troops before

the assault on Kobu to ‘kupiga na kuchaji’.427 The Chamber also recalls that Lipri,

Tsili, Kobu and Bambu were predominantly Lendu.428

422
Judgment, paras 484, 488, 1085-1086 and 1088.
423
Judgment, paras 493, 1085 and 1088.
424
Judgment, para. 470.
425
Judgment, paras 558, 1089 and 1094.
426
Judgment, paras 560, 1090 and 1094.
427
Judgment, paras 561, 1091 and 1094.
428
Judgment, para. 549.

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b) Mr Ntaganda’s degree of participation and intent

166. The Chamber recalls that, as noted above, it found Mr Ntaganda responsible

as an indirect co-perpetrator for the crimes of forcible transfer of population as a

crime against humanity and ordering the displacement of the civilian

population as a war crime in a number of locations committed in the course of

the First and Second Operation. Together with his co-perpetrators,

Mr Ntaganda conceived a plan to drive out all the Lendu from the localities

targeted during the course of the UPC/FPLC’s military campaign. 429 By virtue of

this agreement, Mr Ntaganda and his co-perpetrators meant, inter alia, for

civilians to be forcibly displaced.430

167. In addition to his contribution in relation to the commission of these crimes,

as described above,431 the Chamber also recalls that, specifically in relation to

the assault on Mongbwalu, Mr Ntaganda was present during part of the

assault432 and issued an order to displace.433

168. The above considered, the Chamber considers Mr Ntaganda’s culpability to

have been substantial in relation to the crimes of forcible transfer of population

and ordering the displacement of the civilian population committed during

both the First and the Second Operation, while his presence in Mongbwalu and

his direct order to displace given before the assault on this town are factors

which the Chamber considers to further increase his culpability for the

commission of the crimes during the First Operation.

429
Judgment, para. 808.
430
Judgment, paras 810 and 1188.
431
See paras 32-38, 60, 65, 71-73 and 75-77 above.
432
Judgment, para. 489.
433
See Judgment, paras 484, 1085 and 1088, and generally Judgment, section V.C.4.i) Ordering the
displacement of the civilian population as a war crime (Count 13).

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2. Aggravating circumstances

a) Forcible transfer of population (Count 12)

169. The Chamber recalls that the forcible transfer of population was committed

with a discriminatory intent, pursuant to the common plan to drive out all the

Lendu from the localities targeted during the course of the UPC/FPLC’s military

campaign against the RCD-K/ML.434 Since the discriminatory intent has been

considered by the Chamber as part of the common plan and thus the mode of

liability, the Chamber has not considered it separately as an aggravating

circumstance.

b) Ordering the displacement of the civilian population (Count 13)

170. The Chamber notes that not only were orders to displace given, in the

circumstances of the case, the displacement of civilians actually occurred.435

While such a factor can, in principle, be taken into account in aggravation in

light of the fact that displacement is not itself an element of the crime, the

Chamber is nonetheless mindful that this consequence has already been

considered above under the analysis of the conviction for Count 12. It has

therefore not considered this in aggravation of the crime underlying Count 13.

171. In relation to the fact that ordering the displacement of the civilian population

was committed with a discriminatory intent, pursuant to the common plan to

drive out all the Lendu from the localities targeted during the course of the

UPC/FPLC’s military campaign against the RCD-K/ML,436 the Chamber

integrates its considerations set out in paragraph 169 above and does not

consider this to constitute a separate aggravating circumstance.

434
Judgment, paras 808-810 and 1013-1022.
435
Judgment, paras 487, 568, 573 and 585.
436
Judgment, paras 808-810 and 1013-1022.

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3. Conclusion

172. Forcible transfer of population as a crime against humanity and ordering the

displacement of the civilian population as a war crime are serious crimes, the

former being in abstracto more serious than the latter. In the present case, the

Chamber convicted Mr Ntaganda of the two aforementioned crimes in relation

to five localities. However, as noted above, in determining the sentence for

Count 12, the Chamber considered only the additional element of forcible

transfer of one or more persons from the area in which they are lawfully present

without grounds permitted under international law. As for Mr Ntaganda’s

degree of culpability, the Chamber considers that it is substantial in relation to

the aforementioned crimes committed during both the First and Second

Operation while, in the view of the Chamber, his degree of participation was

even higher during the First Operation due to his presence in the field and his

direct order to displace. Lastly, for the reasons set out above, the Chamber has

not considered any factors in aggravation of the sentence for the crimes

underlying Counts 12 and 13.

173. Based on the above, and mindful of its findings below in relation to

Mr Ntaganda’s individual circumstances,437 the Chamber considers a sentence

of 10 years to appropriately reflect the aforementioned with respect to Count 12

and a sentence of 8 years for Count 13.

F. Persecution (Count 10)

174. The Chamber found Mr Ntaganda responsible for persecution as a direct

perpetrator for killing Abbé Bwanalonga in Mongbwalu in the context of the

First Operation.438 It also found him responsible for persecution as an indirect

co-perpetrator in Mongbwalu, Nzebi, Sayo, and Kilo in the context of the First
437
See section IV below.
438
Judgment, paras 746-752 and 1199.

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Operation, and in Nyangaray, Lipri, Tsili, Kobu, Bambu, Sangi, Gola, Jitchu,

and Buli in the context of the Second Operation. 439

1. Gravity

175. The prohibition of persecution as laid down in Article 7(1)(h) of the Statute is

intended to protect the right of all individuals not to be discriminated against

on the basis of political, racial, national, ethnic, cultural, religious, gender, or

other grounds that are universally recognised as impermissible under

international law.440 In the view of the Chamber, persecution therefore

constitutes, in and of itself, one of the most serious crimes against humanity, as

it amounts to a denial of fundamental rights of one or more persons by virtue of

their belonging to a particular group or collectivity. 441

176. Turning to the circumstances of the present case, the Chamber recalls that the

conduct which underlies Mr Ntaganda’s conviction for persecution and his

conviction for the crimes underlying Counts 1 to 5, 7 to 8, 11 to 13, and 17 to 18

is the same.442 What differentiates the crimes underlying Counts 1 to 5, 7 to 8, 11

to 13, and 17 to 18 from persecution is the discriminatory dimension of the

latter.443 In this respect, the Chamber further notes that, as far as commission as

an indirect co-perpetrator is concerned, the conduct amounting to the crimes

underlying Counts 1 to 5, 7 to 8, 11 to 13, and 17 to 18 took place pursuant to a

common plan and organisational policy that also contained a discriminatory

439
Judgment, paras 995-1008, 1012-1022, 1024-1025 and 1199.
440
Elements of Crimes, Article 7(1)(h).
441
See also ICTY, Kupreškić et al. Trial Judgment, para. 751, stating that: ‘Persecution is one of the most
vicious crimes against humanity. It nourishes its roots in the negation of the principle of the equality of human
beings. Persecution is grounded in discrimination. It is based upon the notion that people who share ethnic,
racial, or religious bonds different to those of a dominant group are to be treated as inferior to the latter.’
442
Judgment, paras 995-1008 and the references contained therein, as well as para. 1206. For this reason, the
multi-layered victimisation of some of the victims (see also submissions in Prosecution Submissions, para. 15)
has already been accounted for by the Chamber when imposing the sentences for the underlying crimes which
the Chamber found to have, jointly, amounted to persecution. With respect to direct perpetration, the
underlying conduct amounting to persecution is that underlying Counts 1 and 2 only.
443
Judgment, paras 1013-1022. See also Elements of Crimes, Article 7(1)(h); and Defence Submissions,
para. 89.

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element.444 Under these circumstances, the Chamber considers that any factors

taken into account by the Chamber in its assessment of the gravity of the crimes

underlying Counts 1 to 5, 7 to 8, 11 to 13, and 17 to 18, including Mr Ntaganda’s

degree of culpability in relation thereto, as well as any aggravating

circumstances for these crimes, should not be counted again when assessing the

gravity of the crime of persecution and the existence of any aggravating

circumstances in relation to this crime.445 As far as commission as a direct

perpetrator is concerned, the Chamber notes that it has already taken into

account that the crimes underlying Counts 1 and 2 committed by Mr Ntaganda

as a direct perpetrator had a discriminatory dimension.446 The Chamber thus

notes that there are no additional elements to be considered in relation to

persecution committed by Mr Ntaganda both as a direct perpetrator and as an

indirect co-perpetrator.

2. Conclusion

177. The Chamber acknowledges the gravity of the crime of persecution, as set out

above, as well as the fact that persecution generally involves a multiplicity of

acts or crimes. However, the Chamber considers that, in the circumstances of

the present case, where every underlying act was charged as a separate crime of

which Mr Ntaganda was convicted, the sentence imposed on him for the crime

of persecution, both as a direct perpetrator and as an indirect co-perpetrator,

should not be higher than the highest sentence imposed for any of the

underlying crimes amounting to persecution, which is 30 years of

imprisonment.

444
Judgment, paras 808-810 and 1206.
445
See also submissions in Defence Submissions, para. 89.
446
See para. 84 above.

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G. Conscripting and enlisting children under the age of 15 years into armed forces

or groups and using them to participate actively in hostilities (Counts 14,

15, and 16)

178. The Chamber found Mr Ntaganda responsible as an indirect co-perpetrator

for conscripting and enlisting children under the age of 15 years into the

UPC/FPLC between on or about 6 August 2002 and 31 December 2003447 and for

using children under the age of 15 to participate actively in hostilities between

on or about 6 August 2002 and 30 May 2003; in the First Operation and in the

UPC/FPLC assault on Bunia in May 2003,448 as bodyguards for UPC/FPLC

soldiers and commanders, including for Mr Ntaganda himself, and for UPC

President Thomas Lubanga,449 and to gather information about the opposing

forces and MONUC personnel.450

1. Gravity

a) Gravity of the crimes Mr Ntaganda has been convicted of

179. Conscripting and enlisting children under the age of 15 and using them to

participate actively in hostilities is undoubtedly very serious; it subjects them to

combat and the associated risks to the children’s life and well-being entailed

therein, including being wounded or killed.451 The vulnerability of children

means that they need to be afforded particular protection, going beyond that

which applies to the general population.452

447
Judgment, paras 1116-1124, 1133 and 1199.
448
Judgment, paras 1125, 1128, 1133 and 1199.
449
Judgment, paras 1126, 1129, 1133 and 1199.
450
Judgment, paras 1127, 1130, 1133 and 1199.
451
Lubanga Sentencing Judgment, para. 37; and Judgment, para. 1108. See also submissions in CLR1
Submissions, para. 8.
452
Lubanga Sentencing Judgment, para. 37 and the references contained therein. See also submissions in CLR1
Submissions, para. 8. Considering this stated purpose of the prohibition of recruitment and use of individuals
under the age of 15, the Chamber does not agree with the Defence’s assertion that the gravity of the crimes
underlying Counts 14, 15 and 16 ought to be evaluated in the context of the absence of reliable documentation
of age, ‘different cultural attitudes towards age’ and instances of recruits lying about their age to be accepted

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180. As far as conscription and enlistment are concerned, the Chamber recalls that

some form of coercion or compulsion distinguishes the former from the latter.453

However, the Chamber also recalls that it may be difficult to distinguish

between voluntary and forced recruitment in the case of children under the age

of 15, since such individuals may be unable to give genuine and informed

consent when enlisting into an armed force or group.454

181. Turning to the particular circumstances of the case, the Chamber recalls that,

in some instances, the UPC/FPLC imposed an obligation on families to provide

one or several ‘children’ for military service, including by threatening them. 455

Furthermore, during their active participation in hostilities, kadogos, including

individuals under the age of 15, used their weapons, sometimes killing people,

and some got shot at, were injured, or died on the battlefield. 456 In relation to

their participation in hostilities, the Chamber recalls that they had difficulties in

fleeing when they were defeated, because of the uniforms and the weapons they

were carrying.457

182. In relation to the scale of the crime, the Chamber has taken note of the Legal

Representative of the Former Child Soldiers’ argument that the number of

victims on which the Chamber made specific findings does not reflect the full

extent of the UPC/FPLC’s recruitment and use of child soldiers, since many

victims continue to be reluctant to report crimes which they were subjected to.458

for training (Defence Submissions, para. 74). The fact that children under the age of 15 might not see or act in
their best interest and that in certain cultural contexts birthdays might be less important does not detract from
the fact that the prohibition of recruitment and use of individuals under the age of 15 – which the DRC
adhered to – has been established precisely in the interest of and for the protection of such persons who,
specifically when finding themselves in difficult social and economic situations, may not act in their best
interest.
453
Judgment, paras 1105-1106. See also Lubanga Sentencing Judgment, para. 37.
454
Judgment, para. 1107.
455
Judgment, para. 349.
456
Judgment, para. 416. The Chamber notes that the Legal Representative of the Former Child Soldiers raises
the activities which the children participated in as an aggravating factor (CLR1 Submissions, para. 27). Noting
that these factors were considered by the Chamber in its assessment of the elements of the crime, the Chamber
has considered these matters under gravity.
457
Judgment, para. 416.
458
CLR1 Submissions, para. 33.

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This notwithstanding, in establishing the appropriate sentence, the Chamber

can only rely on findings which it has made beyond reasonable doubt, on the

basis of the evidence before it. The Chamber thus cannot consider estimates

made by the Trust Fund for Victims in reparations proceedings in the Lubanga

case, put forward by the Legal Representative of the Former Child Soldiers.459

183. The Chamber further recalls that it did not make any findings and is not, on

the basis of the evidence received, in a position to make a finding as to the

precise number or proportion of recruits within the UPC/FPLC who were under

15 years of age at the relevant time.460 In determining the adequate sentence, the

Chamber has thus taken into consideration: (i) the fact that the involvement of

children under the age of 15 in the UPC/FPLC occurred over a period of

approximately 17 months, throughout Ituri;461 (ii) that, in addition to

Mr Ntaganda, Thomas Lubanga and at least eight other UPC/FPLC soldiers and

commanders had escorts under the age of 15462 and that Mr Ntaganda’s personal

escort comprised at least three individuals under the age of 15;463 (iii) that,

among the witnesses who testified in the case, P-0883464 and P-0898465 were

459
See also submissions in Defence Submissions, para. 73.
460
See Defence Submissions, paras 69, 83.
461
The Chamber found that, from at least June 2002, the UPC/FPLC extensively recruited individuals of all
ages, in particular ‘young people’, and including individuals under the age of 15, in various locations
throughout Ituri (Judgment, section IV.A.3.a Recruitment) and that at least between May 2002 and
February 2003, individuals under the age of 15 were trained along with other UPC/FPLC recruits at the
various UPC/FPLC training camps (Judgment, paras 314 and 1124, and section IV.A.3.b Training). Noting the
temporal scope of the charges in the present case, the Chamber only considered the conduct occurring as of
August 2002 for the purpose of its conclusions in relation to Counts 14 and 15 (Judgment, footnote 3096). It is
also only this conduct that the Chamber has considered in its assessment of the appropriate sentence for the
crimes underlying the aforementioned counts. In relation to the Defence’s arguments at paragraphs 69 to 70
and 98 of the Defence Submissions, the Chamber notes that it found that the recruitment of individuals into the
UPC/FPLC was extensive, and that this included the recruitment of individuals under the age of 15 (Judgment,
para. 347; see also submissions in Prosecution Response, para. 15). However, contrary to the submissions of
the Legal Representative of the Former Child Soldiers, on the basis of the evidence on the record, the
Chamber did not find that the recruitment of those under the age of 15 was extensive and/or widespread
(contra CLR1 Submissions, paras 31, 33; and CLR1 Response, para. 23). The Chamber further notes that the
Legal Representative of the Former Child Soldiers raises the number of victims as an aggravating factor
(CLR1 Submissions, para. 30). In its discretion, the Chamber has considered this under gravity.
462
Judgment, paras 386-391, 398-399, 401 and 1129.
463
Judgment, paras 387-388 and 1129.
464
Judgment, para. 179.
465
Judgment, para. 202.

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found by the Chamber to have been under the age of 15 at the time of the

relevant events; and (iv) that an unspecified number of individuals under the

age of 15 participated in the First Operation, that at least one individual under

15 participated in the UPC/FPLC assault on Bunia and that an unspecified

number of individuals under the age of 15 were sent on reconnaissance

missions.466

184. The Chamber further considers that the fact of having been associated with an

armed group as a child under 15 had a significant impact on victims. In this

respect, for example P-0883 described that if she found a partner, this partner

would abandon her when finding out that she was ‘in the militia’, and

described how this happened in practice.467 She testified that she felt as though

her ‘future is compromised’.468 She stated:

My life is still massively affected by it. I stopped my studies, I didn't

study anymore. These days, what can somebody do if they haven't got
any studies? My life was ruined. My life was ruined. I caught illnesses,
diseases. This violence that I suffered makes me suffer enormously. It's
very difficult, very difficult for me.469

466
Judgment, paras 404, 511, 655, 1128 and 1130.
467
P-0883: T-168, pages 13 and 35-36. The Chamber recalls that while it did not rely on P-0883’s testimony
about her abduction and the period immediately after (Judgment, paras 180-185), it found her testimony about
her health and the birth of her child born shortly after her time in the UPC/FPLC to be credible (Judgment,
para. 187). As it was not necessary for the purposes of the Judgment to reflect on P-0883’s experiences after
the temporal scope of the charges, the Chamber did not make findings in this regard in the Judgment.
However, the Chamber notes that it considers P-0883’s testimony on this matter credible and will rely on it in
this sentencing judgment. See also submissions in Prosecution Submissions, para. 42.
468
P-0883: T-168, pages 64-65. See also P-0824: DRC-OTP-2109-4426, at 4436, para. 44; and P-1000: DRC-
OTP-2109-4363, at 4370, para. 36. The Chamber notes that it received other evidence from P-0824 concerning
his observations of children under the age of 15 who were allegedly part of the UPC/FPLC and who passed
through a transit and orientation centre managed by the witness (see P-0824: DRC-OTP-2109-4426, at 4436-
4437, paras 46-47). However, the Chamber notes that the witness is not expert on psychology or sociology and
that his observations are based solely on conversations with unnamed individuals which he had in 2004, the
age of and whose affiliation with the UPC/FPLC are uncertain (see also submissions in Defence Response,
para. 63). In these circumstances, the Chamber has relied on the witness’s evidence in this respect only when
corroborated by other first-hand evidence. The Chamber notes that similar considerations apply to P-1000’s
observations in relation to children allegedly under the age of 15 whom she encountered at a transit and
orientation centre in 2004, only some of which are alleged to have been former members of the UPC/FPLC
and the exact age of whom is uncertain (P-1000: DRC-OTP-2109-4363, at 4369-4370, paras 32-38; see also
submissions in Defence Response, paras 63-65). The Chamber has thus also only relied on P-1000’s
observations in this respect when corroborated by direct evidence.
469
P-0883: T-168, page 13. The Chamber notes that the Legal Representative of the Former Child Soldiers, who
did not request the admission of any evidence during the sentencing stage, in its submission in relation to the

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185. As for the Defence’s argument that the impact of having been a child soldier

must be assessed ‘not against the backdrop of a hypothetical happy and

peaceful childhood, but against the trauma-inducing conditions of the time,

including the real and constant threat of Lendu combatants killing family

members, and of extermination more generally’,470 the Chamber considers that,

even in circumstances of on-going conflict and/or general hardship, the removal

of children from their families – sometimes forcibly – for the purpose of

undergoing military training and for actively participating in hostilities

undoubtedly caused such children harm and put them in a worse position than

they would have been to begin with. Therefore, the Chamber considers that the

general conditions prevailing at the time do not diminish the gravity of having

been conscripted or enlisted into an armed group and/or used to actively

participate in hostilities.

b) Mr Ntaganda’s degree of participation and intent

186. The Chamber found that Mr Ntaganda was aware that, in the ordinary course

of events, and during the relevant period, the implementation of the

UPC/FPLC’s plan to drive out all the Lendu from the localities targeted during

the course of their military campaign against the RCD-K/ML would lead to,

inter alia, the recruitment and active use in hostilities of children under the age

of 15 within the UPC/FPLC.471 Furthermore, Mr Ntaganda exercised control

over the crimes committed by the UPC/FPLC against children under the age of

15 who were, inter alia, enrolled and/or used to participate in hostilities during

gravity of the crimes underlying Counts 14, 15 and 16, referred to findings of Trial Chamber I made in the
Lubanga case on the basis of expert testimony received in that case (CLR1 Submissions, para. 15). The
Chamber notes that, in its assessment of the appropriate sentence for the crimes that Mr Ntaganda has been
convicted of, it can only rely on the evidence before it, and not on findings made by other trial chambers that
are not part of the case record in the present case (see also submissions in Defence Response, para. 76).
470
Defence Response, para. 67.
471
Judgment, paras 808, 811 and 1198.

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the course of the UPC/FPLC’s military campaign against the RCD-K/ML and the

Lendu.472

187. Further, the Chamber also found that Mr Ntaganda was, throughout the

relevant period, personally and actively involved in the UPC/FPLC’s

recruitment process.473 On at least three occasions, he made calls for young

people to join the UPC/FPLC ranks and follow military training, including by

stating that parents and families should give their children to the group.474 Also,

he personally asked community leaders to assist in UPC/FPLC recruitment. 475

188. The Chamber also found that the training of recruits was under the

responsibility of Mr Ntaganda, who regularly paid visits to the various training

camps in order to inspect the training process. 476 It was through the training

centres, in Mandro and elsewhere, that children under the age of 15 became

incorporated into the organisation.477 Furthermore, the training camp at Mandro

– where the emerging UPC/FPLC began training military recruits478 – was made

operational by Mr Ntaganda.479 Mr Ntaganda regularly visited this training

472
Judgment, para. 857.
473
See generally Judgment, section V.C.3.c.1 Mr Ntaganda’s role was determinative in setting up a strong
military group capable of driving out from certain areas all Lendu civilians.
474
Judgment, paras 356-359. In relation to the Defence’s argument that Mr Ntaganda’s speeches encouraging
recruitment must be viewed in light of the lack of any criminal prohibition of conscription of those 15 years of
age or older (Defence Submissions, para. 80), the Chamber notes that, since such speeches were directed at
encouraging the recruitment of young people, and since such recruitment led to the enlistment and
conscription of individuals under the age of 15, which, the Chamber found, was a consequence of the
implementation of the common plan that Mr Ntaganda was aware of (Judgment, para. 1198), the Chamber
finds that it may consider Mr Ntaganda’s aforementioned contribution to the UPC/FPLC’s recruitment process
in its assessment of the appropriate sentence. The fact that many young people may have been ‘highly
motivated’ to obtain military training (Defence Submissions, para. 81) does also not detract from the fact that
Mr Ntaganda actively contributed to the promotion of such recruitment, which included the recruitment of
individuals under the age of 15.
475
Judgment, para. 355. Contrary to the Defence’s argument in this respect (see Defence Submissions, paras 75
and 116-119) the Chamber did not find that Mr Ntaganda applied any screening procedures to screen out the
youngest recruits. Instead, the Chamber established that the screening was exclusively based on physical
abilities as opposed to age (see Judgment, para. 361 and footnote 998). The Chamber therefore does not
consider this as a factor in mitigation, contrary to the Defence’s argument.
476
Judgment, paras 360, 368-370 and 394.
477
Judgment, para. 831.
478
Judgment, para. 314.
479
Judgment, para. 365.

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camp,480 set up the structure for the training and determined the topics for

instruction at the camp,481 and personally taught recruits, as well as attended

kitamaduni sessions.482 He also attended graduation ceremonies at Mandro and

Lingo.483 In addition, two individuals under the age of 15 were among five

soldiers trained as radio operators at Mr Ntaganda’s residence in Bunia. 484

189. The Chamber also recalls that Mr Ntaganda’s personal escort also included at

least three individuals under the age of 15,485 who guarded his residence and

compound,486 accompanied him on his travels487 and during his visits to training

camps488 and participated in combat operations with him.489 The Chamber

further found that Mr Ntaganda knew that some of his escorts were below the

age of 15 years and that, during the relevant period, they were active members

of the UPC/FPLC, ensuring his protection and participating in various military

activities.490

190. Mr Ntaganda was also the person who decided on the deployment of soldiers

following their training,491 including the deployment of those under the age

480
Judgment, para. 365.
481
Judgment, para. 371.
482
Judgment, para. 372.
483
Judgment, para. 378.
484
Judgment, para. 371.
485
Judgment, paras 387-388 and 1129. See also submissions in CLR1 Submissions, paras 18 and 22. Contrary to
the Defence’s argument (Defence Submissions, paras 75, 118), the Chamber did find that two individuals who
had worked as escorts for Mr Ntaganda were manifestly under the age of 15 around February 2003 (Judgment,
para. 387; see also submissions in CRL1 Response, para. 12). It also found that he was accompanied by these
two individuals during a 12 February 2003 visit to the Rwampara training camp, meaning that these two
individuals were therefore, at least on this occasion, in his close proximity (Judgment, paras 387 and 394; see
also CRL1 Response, para. 12).
486
Judgment, para. 393.
487
Judgment, para. 393.
488
Judgment, para. 394.
489
Judgment, para. 396. The Chamber recalls that, although the extent of Mr Ntaganda’s involvement in the
setting up of a guard unit for himself was demonstrated by the evidence at trial, the Chamber considered that
indirect co-perpetration was the most appropriate mode of liability under which to consider Mr Ntaganda’s
precise role and individual criminal responsibility in relation to the crimes underlying Counts 15 and 16
(Judgment, paras 758-759; see also submissions in CLR1 Submissions, para. 18). However, the Chamber has
taken Mr Ntaganda’s aforementioned direct involvement into account in its assessment of the appropriate
sentence.
490
Judgment, para. 1192.
491
Judgment, para. 378.

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of 15.492 Specifically in relation to the participation of persons under the age

of 15 in the First Operation,493 the Chamber found that the assault on

Mongbwalu was launched as conceived by Mr Ntaganda,494 who was also

present on the ground during part of the assault.495

191. In relation to the Defence's argument that enlistment, conscription into an

armed group and the use of children under the age of 15 in hostilities was

codified as an international crime only as of 1 July 2002496 and that the novelty

of this criminalisation should be taken into account in the Chamber’s

assessment of gravity and/or Mr Ntaganda’s degree of intent,497 the Chamber

observes that the Defence does not contest that the conduct in question was

criminalised at the relevant time.498 The Chamber considers that any novelty of

the criminalisation does not diminish the gravity of the crimes as committed

between August 2002 and December 2003, which Mr Ntaganda has been

convicted of, or his intent in relation thereto,499 as established by the Chamber in

its Judgment.

192. In light of the above, the Chamber considers that Mr Ntaganda’s degree of

intent in relation to the commission of the conscription, enlistment of children

under the age of 15, and their use in hostilities was lower than for the

492
Judgment, para. 832.
493
Judgment, para. 511.
494
Judgment, para. 854.
495
Judgment, para. 489. As for the Defence’s argument in relation to the use of at least one individual under the
age of 15 in the UPC/FPLC assault on Bunia in May 2003 that ‘Mr. Ntaganda had no role and no influence
over the forces that Kisembo gathered for the assault’ (Defence Submissions, para. 84), the Chamber notes
that, for this specific instance of use of children under the age of 15, it has not considered any specific
involvement of Mr Ntaganda therein, and that his degree of participation and intent in relation thereto are
those set out in paragraphs 186 to 189.
496
The Chamber notes that the codification in the Statute in fact took place in 1998, when the Statute was
adopted and opened for signature and ratification.
497
Defence Submissions, paras 76 and 98.
498
In this regard, the Chamber recalls that it previously noted that ‘[i]f certain conduct [that] was […]
criminalised under the Statute, was committed after the entry into force of the Statute, in a State Party, and by
a national of that State, the nullum crimen sine lege principle, as incorporated in [Article 22(1) of the Statute],
would be satisfied’. See ICC-01/04-02/06-1707, footnote 74. See also submissions in Prosecution Response,
para. 16.
499
To the extent that the Defence intends to argue that the mental element was negated as a result of a mistake
of law, this argument ought to have been raised at an earlier stage of the trial.

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commission of crimes against the Lendu pursuant to the common plan, but his

degree of participation was significant.

2. Aggravating circumstances

193. The Chamber considers that the treatment to which some of the children

incorporated into the UPC/FPLC were subjected must be considered as an

aggravating factor for the determination of the sentence. In this respect, the

Chamber recalls that life at the UPC/FPLC training camps, where recruits,

including those under the age of 15, were trained for several weeks and to up to

two months500 included harsh living conditions,501 and being subjected to

threats, including to their life, monitoring of movement, and severe

punishments, including beatings and executions, sometimes without apparent

reason.502 Furthermore, the functioning of the camps was such that the recruits

knew that violent acts were being performed on their peers.503 No particular

protection was given by the UPC/FPLC to its youngest members; from the

moment of enrolment, notably during their training and their participation in

hostilities, children under 15 years of age did not receive special treatment and

500
Judgment, para. 378.
501
Judgment, paras 374-375. As for the Defence’s arguments in relation to the ‘general conditions of hardship at
the time’ (Defence Submissions, para. 77), the Chamber notes that, in support of its argument, the Defence
refers to P-0046’s testimony concerning the conditions at transit centres. According to the witness, the
conditions ‘were not […] particularly good’, the food ration at transit centres did not vary much from what
was available to the general population and the humanitarian situation ‘at large’ was not good (P-0046: T-102,
page 101). In this respect, the Chamber considers that, even if insufficient food was available generally at the
time, the fact that UPC/FPLC recruits, which included individuals under the age of 15, received rotten or
inedible food or had food spooned directly into their hands or clothes, can still be considered by the Chamber
in its assessment of the appropriate sentence for the crimes underlying Counts 14 to 16. Similarly, in relation
to the Defence’s argument that military training and discipline is severe by nature, especially in a context
where recruits have lived through inter-ethnic conflict (Defence Submissions, para. 77), while not disagreeing
with the fact that military training is severe by nature, the Chamber considers that parts of the treatment
imposed on UPC/FPLC soldiers, including those under the age of 15 – which comprised severe beatings,
including without any apparent reason, threats to life, executions, and food deprivation – went beyond was is
required for maintaining discipline within a military context (see also submissions in Prosecution Response,
para. 17; and CLR1 Submissions, para. 26).
502
Judgment, paras 376-377, 409 and 790. As for the Defence’s argument in relation to the Chamber’s finding
that, in at least one instance at Mandro, a person was executed for losing his weapon, based on the evidence of
P-0888 (Defence Submissions, para. 78), the Chamber recalls its explicit finding that it considered the
witness’s evidence on this point to be credible (Judgment, footnote 1069 and para. 44).
503
Judgment, para. 376.

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were threatened and punished in the same way as other recruits and soldiers. 504

The fact that, as pointed out by the Defence,505 any treatment, and particularly

any harsh treatment, including punishment by killing, was not specifically

targeted at individuals under the age of 15 does not affect the fact that all

UPC/FPLC recruits – and therefore including those under the age of 15 – were

treated harshly at the UPC/FPLC training camps.506 Moreover, the

aforementioned conditions are particularly serious when it concerns children

under the age of 15. Indeed, having established that recruits under 15 years of

age were undoubtedly vulnerable,507 the Chamber further found that, once

recruited, these already vulnerable soldiers were subjected to conditions which

could only have the impact of increasing their vulnerability.508

194. In relation to three of the victims – P-0883, Mave and Nadège – the Chamber

considers that their cumulative victimisation can, in principle, constitute an

aggravating circumstance.509 Specifically, the Chamber recalls that, in addition

to being recruited into the UPC/FPLC, Nadège was also raped, P-0883 was

raped and sexually enslaved and Mave, who was used as Floribert Kisembo’s

bodyguard, was also raped and sexually enslaved.510 The Chamber is

nonetheless mindful that these instances of rape and sexual slavery have

already separately been considered above under the analysis of the convictions

for Counts 6 and 9. As a consequence, the Chamber has not considered this in

aggravation of the sentence in relation to Counts 14, 15 and 16.

504
Judgment, paras 362, 376-377, 392, 406, 414 and 1195.
505
Defence Submissions, paras 77-78.
506
See also submissions in Prosecution Response, para. 17; and CLR1 Response, para. 28.
507
See para. 179 above. See also Judgment, para. 818.
508
Judgment, para. 818. See also CLR1 Submissions, para. 35, where the Legal Representative of the Former
Child Soldiers argues that the Chamber should consider as an additional aggravating circumstance the fact that
the harsh conditions and treatment made the victims particularly defenceless. In order to avoid double-
counting, however, the Chamber considers the impact of conditions on the child soldiers here and does not
treat this as a separate aggravating factor.
509
See also submissions in Prosecution Submissions, para. 15; CLR1 Submissions, paras 29 and 48; and CLR2
Submissions, para. 42.
510
See Judgment, para. 1199.

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195. Finally, considering that a legal element of the crime cannot be considered as

an aggravating circumstance, the fact that the victims were children as such

does not constitute an aggravating factor in relation to the enlistment and

conscription of children under the age of 15 years and their use in hostilities.

However, the Chamber has considered the fact that at least of the victims was

very young,511 and therefore particularly defenceless, as an aggravating

circumstance.

196. As for the Legal Representative of the Former Child Soldiers’ argument that

child soldiers within the UPC/FPLC ranks were made to consume drugs and

alcohol to make them docile,512 the Chamber notes that, while having received

evidence that a former UPC/FPLC member indicated that ‘[things] such as

drinking, smoking and taking drugs’ were authorised in the UPC/FPLC ‘in

order [for recruits] to become courageous’,513 the evidence does not establish

that any of the aforementioned activities were imposed upon UPC/FPLC

members, including those under the age of 15.

3. Conclusion

197. As established by the Chamber above, enlistment, conscription and use of

individuals under the age of 15 to participate actively in the hostilities is of

serious gravity. While Mr Ntaganda’s degree of intent in relation to their

commission was lower than in relation to the commission of the crimes

underlying Counts 1 to 5, 7 to 8, 10 to 13, and 17 to 18, his degree of

participation in their commission was significant. The Chamber further

identified the following factors in aggravation: the particularly harsh treatment

511
The Chamber recalls its finding that one girl present at Lingo camp was as young as nine years old
(Judgment, para. 410). See also P-0010: T-47, page 6; and T-48, page 15, also referring to DRC-OTP-0120-
0293, at 00:37:25.
512
T-268, page 20. See also submissions in Defence Submissions, para. 79.
513
P-0877: T-109, page 50.

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of some of the victims and the fact that at least one of the victims was very

young.

198. Based on the above, and mindful of its findings below in relation to

Mr Ntaganda’s individual circumstances,514 the Chamber considers a sentence

of 18 years to appropriately reflect the gravity of conscripting and enlisting

children under the age of 15 into an armed group and using them to participate

actively in hostilities, Mr Ntaganda’s culpability and the aggravating

circumstances in relation thereto.

514
See section IV below.

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IV. MR NTAGANDA’S INDIVIDUAL CIRCUMSTANCES

199. The Defence submits that Mr Ntaganda’s personal circumstances as well as

what it refers to as ‘very powerful’ mitigating factors must be taken into account

in determining the appropriate sentence.515 The Prosecution submits that there

are no significant mitigating circumstances which would warrant any reduction

in sentence.516 The LRVs submit respectively that there are no mitigating

circumstances whatsoever which apply to Mr Ntaganda517 and that none of the

mitigating factors invoked by the Defence should be given any significant

weight.518

200. Furthermore, the Prosecution argues that Mr Ntaganda’s individual

circumstances heighten the need for a high sentence, referring to his age, his

position and experience519 and his history with the Rwandan genocide. 520 The

Legal Representative of the Victims of the Attacks similarly submits that

Mr Ntaganda’s intelligence and military education should be considered as an

aggravating factor.521 The Prosecution further avers that Mr Ntaganda’s

‘misconduct at the Detention Centre and his attempts to obstruct the

investigation and/or prosecution of the charges in this case are aggravating

factors warranting a higher sentence’.522 While not referring to it as an

aggravating circumstance, the Legal Representative of the Former Child

Soldiers similarly argues that the Chamber ought to take the alleged witness

interference into account for the purposes of sentencing.523

515
Defence Submissions, paras 10-14.
516
Prosecution Submissions, para. 87.
517
CLR1 Submissions, para. 57; and CLR1 Response, para. 30.
518
CLR2 Submissions, paras 2 and 48; and CLR2 Response, para. 26.
519
Prosecution Submissions, para. 61.
520
Prosecution Submissions, paras 62-64.
521
CLR2 Submissions, para. 46.
522
Prosecution Submissions, para. 76.
523
CLR1 Submissions, para. 57.

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201. The Chamber first considers the issue of the alleged witness interference and

Mr Ntaganda’s position at the time and military training and experience before

turning to the mitigating factors put forward by the Defence.

A. Aggravating circumstances

1. Alleged witness interference

202. The Chamber recalls that during the trial proceedings it imposed restrictions

on Mr Ntaganda’s communication because it found that there were reasonable

grounds to believe that Mr Ntaganda had engaged in conduct that warranted

their imposition pursuant to Regulation 101(2) of the Regulations of the Court,

including reasonable grounds to believe that he intended or attempted to

engage in witness interference.524 However, the Chamber further recalls that

since its initial aforementioned findings, it was not presented with further

information that would warrant making such findings to a different standard of

proof.

203. According to the Prosecution, ‘the Chamber should now enter specific

findings beyond reasonable doubt regarding Bosco Ntaganda’s misconduct at

the Detention Centre and attempts to interfere with the investigation and

prosecution of the conduct that ultimately resulted in his conviction’. 525 The

Chamber recalls that the Prosecution obtained Mr Ntaganda’s phone

conversations from the ICC Detention Centre pursuant to a decision of Pre-Trial

Chamber I for the purpose of an investigation into alleged offences under

Article 70 of the Statute.526 Given that there is no information, publicly available

or otherwise, before the Chamber on the outcome of this investigation, the

524
ICC-01/04-02/06-1494-Red3, para. 22. See also submissions in Defence Response, paras 40-43.
525
Prosecution Submissions, para. 77.
526
ICC-01/04-02/06-2180-Conf-Exp, para. 6, referring to Pre-Trial Chamber I, Decision on the Prosecutor’s
‘Request for judicial assistance to obtain evidence for investigation under Article 70’, 18 September 2015,
ICC-01/04-729-Conf.

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Prosecution appears to have concluded that it was not warranted to proceed

with any charges pursuant to Article 70. Mindful of the presumption of

innocence,527 the Chamber observes that, to date, there appear not to have been

developments in proceedings before Pre-Trial Chamber I which led to the

issuing of an arrest warrant for such alleged conduct.528 For the Prosecution to

ask the Chamber in these circumstances to make findings beyond reasonable

doubt on matters about which the Defence has not been given the opportunity

to make submissions or to lead evidence,529 is inapposite.

204. The Chamber has made findings on the facts of this case on the basis of the

evidence before it, after having allowed the parties and participants to test this

evidence and make submissions on it. Clearly then, the Chamber will not, as

invited to by the Prosecution, make findings beyond reasonable doubt on the

basis of information that is neither in evidence nor tested through the regular

process applicable to trial proceedings. In this regard, the Chamber notes that

the reason that much of the information on which the Prosecution relies for its

submissions is not in evidence due to the Prosecution’s own conduct, including

the circumvention of an order by the Chamber, which the Chamber found to

have caused prejudice to Mr Ntaganda.530

205. The Chamber therefore concludes that there is no evidence before it on the

basis of which it can conclude beyond reasonable doubt that Mr Ntaganda

527
Article 66 of the Statute.
528
Article 58 of the Statute. It must therefore be presumed that Mr Ntaganda is not suspected of any offences
against the administration of justice, let alone that he has been found beyond reasonable doubt to have
committed any such offences.
529
The Chamber notes in this regard that the Prosecution submits that there are ‘facts that are not in dispute
because [Mr Ntaganda] admitted them’ (Prosecution Submissions, para. 81), but that the Defence responded to
this submission that these facts are, in fact, in dispute (Defence Response, paras 41 and 44-45). The
Prosecution refers, for example, to Mr Ntaganda’s testimony before the Chamber. In this regard, the Chamber
considers that from the statements made by Mr Ntaganda during his testimony (see, e.g., Prosecution
Submissions, para. 85), on which the parties did not previously make submissions, it cannot be inferred that he
indeed intentionally interfered beyond reasonable doubt with the administration of justice.
530
See ICC-01/04-02/06-1883.

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interfered with witnesses. Allegations to this extent can therefore not be taken

into account as aggravating circumstances.

206. As to the Prosecution’s allegations that Mr Ntaganda breached the internal

rules and regulations of the Detention Centre, the Chamber considers that this is

a matter for the Registry. There is no information before the Chamber as to

whether the Chief Custody Officer took any action in this regard during Mr

Ntaganda’s detention and the Chamber does not consider it necessary to proprio

motu request such information, as the alleged breaches of internal detention

regulations do not prima facie have a sufficient link to the crimes Mr Ntaganda

has been convicted of, in order for the alleged breaches in themselves to be

taken into account as an aggravating circumstance.531

2. Mr Ntaganda’s position and military training and experience

207. Matters in relation to Mr Ntaganda’s position at the relevant time and his

military training and experience have been discussed by the Chamber above

and are not discussed here as aggravating factors.

B. Mitigating circumstances

1. Mr Ntaganda’s age

208. In relation to Mr Ntaganda’s age, the Chamber notes that Mr Ntaganda was

an adult of 28 to 30 years old at the time of the commission of the crimes for

which he was convicted532 and had already been in the military for some 11

years by the time those crimes took place.533 The Chamber therefore rejects the

531
Although potential poor behaviour in detention could impact on the Chamber’s overall assessment of
Mr Ntaganda’s behaviour in detention, and thus be a relevant consideration when assessing whether alleged
good behaviour in detention should be taken into account as a mitigating circumstance, the Chamber considers
that the aspect of Mr Ntaganda’s conduct in detention that has been analysed below (see paras 231-234
below), as part of the consideration of mitigating circumstances, to be of such a specific nature that it is
unaffected by the remainder of Mr Ntaganda’s behaviour while in detention.
532
Mr Ntaganda was born on 5 November 1973 (Judgment, para. 1).
533
Mr Ntaganda joined the armed wing of the RPF at the age of 17 (Judgment, para. 5).

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Defence’s suggestion that Mr Ntaganda was ‘very young in assuming [his]

responsibilities’ within the UPC/FPLC.534 The Chamber considers that

Mr Ntaganda’s age at the relevant time is not a mitigating circumstance.

2. Mr Ntaganda’s personal experience during the Rwandan genocide

209. The Defence submits that Mr Ntaganda’s personal circumstances and

motivations connected to his experience of the Rwandan genocide should be

considered in substantial mitigation of his sentence. 535 After recounting

Mr Ntaganda’s experiences of the genocide and highlighting the persecution of

the Hema which took place in the DRC in the period before the temporal scope

of the crimes for which he was convicted, the Defence concludes that while

‘[n]one of this excuses or justifies even a single crime of which Mr. Ntaganda

has been convicted […] these are not venal or vicious motives’. 536

Mr Ntaganda’s ‘actions were a reaction to what he saw as the continuation of

the genocide that he had already lived through, and that had required force of

arms to stop’.537 In addition, ‘the impact that the genocide must have had on

Mr. Ntaganda – and of the measures that might be necessary to stop a genocide

– should not be under-estimated’.538

210. The Chamber does not doubt the traumatic impact on Mr Ntaganda of having

lived through the Rwandan genocide, including the loss of his close family

members.539 However, the Chamber recalls that while it found his testimony

regarding his suffering during the Rwandan genocide credible, as well as his

experience of the discrimination against the Tutsi during his youth, notably in

the region of Eastern Congo,540 it did not find Mr Ntaganda credible when he

534
T-268, page 42. See also submissions in Prosecution Submissions, paras 61 and 64.
535
Defence Submissions, paras 103-110; and Defence Response, para. 75.
536
Defence Submissions, para. 109.
537
Defence Submissions, para. 110.
538
Defence Submissions, para. 109.
539
D-0300: T-211, pages 5-7.
540
Judgment, para. 259.

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affirmed that he always fought and acted, including in 2002 and 2003, for the

liberation and freedom of the civilian population in general in Ituri and that this

revolutionary ideology was governing the functioning of the UPC/FPLC. 541

Rather, the Chamber found beyond reasonable doubt that Mr Ntaganda agreed

to a common plan to drive out all the Lendu from the localities targeted during

the UPC/FPLC’s military campaign against the RCD-K/ML and, by way of this

agreement, meant the destruction and disintegration of the Lendu community,

which inherently involved the targeting of civilian individuals by way of acts of

killing, rape, and the targeting of their public and private property.542 In the

Chamber’s view, the alleged protection of one group through acts aimed at the

destruction and disintegration of another cannot under any circumstance

constitute a matter of mitigation.543 The Chamber thus gives this matter no

weight in mitigation.

3. Measures allegedly taken by Mr Ntaganda to save the lives of enemy

combatants and to protect civilians

211. The Defence raises two instances of Mr Ntaganda allegedly saving the lives of

enemy combatants in Mongbwalu in 2002 and 2003,544 which its submits must

be accorded substantial weight in mitigation.545 In the first instance, according to

P-0016, Mr Ntaganda intervened to prevent Floribert Kisembo from killing him

and 63 other former APC soldiers.546 In the second, according to D-0251,

Mr Ntaganda ordered his troops not to kill some prisoners captured during an

operation in Mongbwalu.547

541
Judgment, para. 261.
542
Judgment, paras 808-809.
543
See also submissions in Prosecution Submissions, paras 61-64; Prosecution Response, para. 30; CLR1
Response, paras 31-34; and CLR2 Response, paras 20 and 25.
544
Defence Submissions, paras 111-114.
545
Defence Submissions, para. 114.
546
P-0016: DRC-OTP-0126-0422-R03, para. 47.
547
D-0251: T-260, page 31.

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212. The Chamber notes that, according to P-0016, Mr Ntaganda preferred to

integrate and train him and the aforementioned 63 soldiers into the UPC/FPLC

because at that time the armed group did not have any trained soldiers of its

own.548 Given that Mr Ntaganda’s actions appear to have been aimed at using

the soldiers for the benefit of the common plan, the Chamber does not consider

this to be a mitigating factor, and accords it no weight. 549 In relation to the

evidence of D-0251, the Chamber recalls that it had reservations about D-0251’s

credibility,550 and notes the scarcity of details in the witness’ testimony on this

subject, including on the number or identity of the prisoners in question.

Considering these factors together, the Chamber does not consider this matter

to be established, even on a balance of probabilities. The Chamber thus accords

it no weight in mitigation.

213. The Defence further raises an instance of Mr Ntaganda allegedly welcoming

and protecting Lendu civilians in Mandro in June 2002, which it submits

constitutes ‘substantial mitigation’.551 It also submits that measures taken by

Mr Ntaganda, once in control of an area, to protect civilians against attacks and

punish crimes against them should be credited in mitigation.552

214. As regards the first issue, the Chamber notes that the witness relied on by the

Defence, D-0054, refers to Chief Kawha having given shelter in Mandro to some

Lendu civilians who fled an attack by a group of Lendu ‘combatants’ in

June 2002.553 While D-0054 mentions ‘Bosco’ as being part of the delegation sent

by Chief Kawha to collect the Lendu civilians,554 the witness provides no other

548
P-0016: DRC-OTP-0126-0422-R03, para. 47.
549
See also submissions in Prosecution Response, paras 31-33; and CLR2 Response, para. 23. The Chamber
distinguishes in this respect the facts of the Popović case cited by the Defence from the facts of the present
case, see Defence Submissions para. 114 and footnote 215, and the arguments of the Prosecution in this
respect in Prosecution Response, para. 34.
550
Judgment, para. 103, and footnotes 213 and 1157.
551
Defence Submissions, para. 115.
552
Defence Submissions, paras 120-123.
553
D-0054: T-243, page 71; and T-244, pages 6-22.
554
D-0054: T-244, pages 16-17.

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details on this person’s role in the events.555 The Chamber also recalls its finding

beyond reasonable doubt that, shortly after the timing of this incident,

Mr Ntaganda agreed to a common plan to drive out all the Lendu from the

localities targeted during the course of the UPC/FPLC’s military campaign and

meant the destruction and disintegration of the Lendu community. 556

Considering this, as well as the limited concrete evidence on his actual role in

the event described by D-0054, if any, the Chamber does not consider this

matter to be established on a balance of probabilities and gives it no weight in

mitigation.

215. As regards the second issue, the Defence refers to seven instances of

Mr Ntaganda ‘tr[ying] to protect the civilian population against attacks’ after

coming into control of an area.557 The Chamber notes that the testimony referred

to in support thereof is Mr Ntaganda’s only.558 In considering this evidence in

mitigation, the Chamber recalls, as noted above, that it did not find

Mr Ntaganda credible when he testified that he fought and acted in 2002 and

2003 for the liberation and freedom of the civilian population in general in

Ituri.559 It also recalls its findings that the Lendu did not return to Mongbwalu

after the UPC/FPLC’s takeover of the town while the UPC/FPLC was still there

because of the risk of being killed,560 that the UPC/FPLC’s conduct in the

aftermath of the assault was clearly aimed at creating conditions to hamper the

return of the Lendu for at least a considerable period,561 and that its conduct in

the aftermath of the assaults on Lipri, Tsili, Kobu, and Bambu also deterred the

population from returning.562 In light of all of the above, the Chamber does not

555
See also submissions in Prosecution Response, paras 31-32.
556
Judgment, paras 808-809.
557
Defence Submissions, para. 120.
558
Defence Submissions, para. 121 and the references contained therein.
559
Judgment, para. 261.
560
Judgment, para. 536.
561
Judgment, para. 1061.
562
Judgment, para. 1067.

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consider it to be established on a balance of probabilities that Mr Ntaganda

genuinely tried to protect the civilian population – at least not the Lendu

civilian population - from attacks once areas had been secured. It therefore

gives this factor no weight in mitigation.

216. As regards Mr Ntaganda’s efforts to punish crimes against civilians, the

Chamber notes that it did not find that his efforts to punish crimes against

Lendu were ‘insufficient’, as submitted by the Defence. 563 Rather, the Chamber

found that rape, murder and pillage committed against the Lendu were not

considered punishable offences.564 In addition, for most of the instances of

punishment raised by the Defence,565 the Chamber recalls that it found them to

be, inter alia, isolated in nature,566 not established due to a lack of credibility in

the relevant testimony of Mr Ntaganda,567 or directed towards crimes against

civilians of ethnicities other than Lendu.568 In this context, the Chamber

considers that the acts of punishment referred to by the Defence cannot be

properly qualified as efforts to reduce the scale or mitigate the impact of crimes

against the Lendu, or to prevent others from committing criminal acts against

the Lendu. The Chamber accordingly gives them no weight in mitigation.

4. Mr Ntaganda’s alleged contribution to peace, reconciliation, and security in

2004 in Ituri

217. The Defence submits that Mr Ntaganda’s contribution to peace, reconciliation,

and security in 2004 in Ituri was ‘phenomenal’, and should be accorded

substantial weight.569 It refers to his alleged contribution to reconciliation with

563
Defence Submissions, para. 122.
564
Judgment, para. 332.
565
Defence Submissions, para. 122.
566
Judgment, footnote 893, referring to the burning of looted goods by Mr Ntaganda, an execution in Ndromo
and the detention of Abelanga, Pigwa, and Thomas Kasangaki for stealing.
567
Judgment, footnote 893, referring to the execution of a UPC/FPLC soldier named Liripa after the First
Operation.
568
Judgment, para. 332 and footnotes 885-886. See also submissions in Prosecution Response, paras 39-41.
569
Defence Submissions, paras 124-134. See also Defence Response, paras 86-90.

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the Lendu community and the FNI and FRPI in 2004, 570 and to his alleged

contribution to the demobilisation of UPC/FPLC soldiers and their integration

into the FARDC in 2004.571 It further submits that Mr Ntaganda displayed a

‘complete shift in attitude’ which began as early as the UPC/FPLC’s operations

in Mongbwalu in June 2003, and that the ‘shift in attitude’ is most significant,

deserving of due consideration, and constitutes an indication that in 2003-2004,

rehabilitation was already underway.572 It also submits that any negative view

held by MONUC of Mr Ntaganda’s actions on this subject does not detract from

the credit that should be given.573 Conversely, the Prosecution and the Legal

Representative of the Victim of the Attacks submit that Mr Ntaganda’s alleged

contribution to peace and security is not established.574

218. The Chamber considers that promotion of peace and reconciliation may only

constitute a mitigating circumstance if it is genuine and concrete.575

219. The Chamber notes the evidence before it on the alleged reconciliation

between ethnic communities in 2004 which indicates that: (i) in 2004, the FNI

had an initiative to conduct an awareness raising campaign among Lendu and –

particularly – Hema about the need for peace, unity and free movement of

people and goods;576 (ii) as part of this initiative, pacification meetings were held

in various Hema villages;577 (iii) one of these meetings, held in March 2004 in

Bule, was attended by a delegation sent by Mr Ntaganda;578 (iv) Mr Ntaganda

570
Defence Submissions, paras 124-134.
571
Defence Submissions, paras 135-136. See also Defence Response, paras 91-93.
572
Defence Submissions, paras 12-14. See also Defence Response, para. 85.
573
Defence Submissions, paras 137-141. See also Defence Response, paras 87-89.
574
Prosecution Submissions, paras 107-112; Prosecution Response paras 42-48; and CLR2 Submissions,
paras 50-54.
575
Bemba Sentencing Judgment, para. 72; Katanga Sentencing Judgment, para. 91; and Lubanga Sentencing
Judgment, para. 87.
576
D-0306: T-267, pages 12-15, also referring to DRC-D18-0001-6754.
577
D-0306: T-267, pages 12-15 and 18-19. The witness indicates that meetings were held in, inter alia, Bule,
Iga Barrière, Katoto, Lopa, and Muhito.
578
D-0306: T-267, page 15.

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encouraged the initiative;579 (iv) Mr Ntaganda had a role in ensuring the security

of FNI representatives while they were travelling to the locations where such

meetings were held;580 (v) Mr Ntaganda spoke about peace in Sali,581 and at

events in Largu,582 Mabanga,583 and Lopa;584 (vi) Mr Ntaganda invited Lendu to

a pacification meeting in Lopa;585 (vii) a ‘rank giving ceremony’ was held in

Largu in July 2004 followed by a celebration in Drodro which was attended by

members of the UPC (including Mr Ntaganda), members of the FNI (including

its President Floribert Ndjabu), and members of the territorial administration of

Djugu, including its Head, Tchachu Lylo, and its Deputy Head, Kiza Mateso.586

Mr Ntaganda was involved in the organisation of this event.587

220. The Chamber first considers the nature of the activities established by the

evidence to suggest a strategic alliance between the UPC/FPLC and the FNI, as

opposed to broader reconciliation and peace between the Lendu and Hema

communities.588 In this regard, the Chamber observes that the evidence suggests

that an alliance between the UPC/FPLC and the FNI was being considered in

order to secure a high position at the national level,589 and that the July 2004

event held in Largu was a military occasion, namely a ‘rank giving ceremony’,

where all soldiers receiving ranks were UPC/FPLC officers.590 Contrary to the

Defence’s submission that the rank giving ceremony was not just a private affair

579
D-0306: T-267, pages 15-16.
580
D-0306: T-267, page 13.
581
D-0306: T-267, page 20.
582
D-0302: DRC-D18-0002-0023, at 0026, para. 22; and D-0303: DRC-D18-0002-0001, at 0007, paras 37-40.
583
D-0305: T-266, pages 35-36.
584
D-0302: DRC-D18-0002-0023, at 0026, para. 20.
585
D-0302: DRC-D18-0002-0023, at 0026, para. 20.
586
D-0047: T-267, page 56-57, also referring to DRC-D18-0001-0436, from 01:06:07 to 01:06:17; D-0305: T-
266, pages 27-28, 32 and 34, also referring to DRC-OTP-0118-0002 at 00:55:42 and 00:59:55 to 00:59:59;
and D-0306: T-267, pages 21-26, also referring to DRC-OTP-0118-0002, from 00:19:30 to 00:20:14, 00:42:17
to 00:42:43 and 00:48:52-00:49:31
587
D-0047: T-267, page 52.
588
See also submissions in Prosecution Submissions, para. 107; CLR2 Submissions, para. 52; and Prosecution
Response, paras 43-44.
589
DRC-OTP-0009-0146-R01, from 0147 to 0148, paras 2(c) and (d).
590
D-0306: T-267, pages 27-28. D-0047 also testified that this was a ‘military activity’, see T-267, page 52.

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between the FNI and the UPC/FPLC,591 pointing in support to the presence of

the head and deputy head of the Djugu territorial administration, the former

who is Lendu, the Chamber observes that, according to the evidence, the Lendu

Djugu territory administrator Tchachu Lylo was also a former UPC and FNI

official.592 Further, evidence before the Chamber suggests that the majority of

the Lendu community was reportedly dismissive in early 2004 of the FNI leader

Floribert Njabu’s ‘rapprochement’ with Mr Ntaganda.593 In addition, as noted

by the Legal Representative of the Victims of the Attacks, there is no evidence

that Mr Ntaganda personally visited any villages affected by the events which

are the subject of his conviction, such as Mongbwalu, Lipri, or Kobu.594

221. Second, contrary to the Defence’s submission that Mr Ntaganda’s

contribution to the peace process was substantial, the evidence before the

Chamber indicates only a limited involvement. While there is evidence that Mr

Ntaganda encouraged the aforementioned awareness raising initiative and

facilitated the security of FNI representatives in moving through Hema

locations, the evidence indicates that the pacification campaign was in fact an

FNI initiative.595 Witness D-0306 specifically rejected the suggestion that the FNI

collaborated with Mr Ntaganda in the awareness raising mission. 596 Evidence

that Mr Ntaganda made speeches about peace in Sali, Lopa and Largu597 and

invited Lendu to a meeting in Lopa598 also suggests to the Chamber some, but

591
Defence Submissions, para. 130.
592
D-0047: T-267, pages 32 and 57; and D-0306: T-267, pages 23-24. See also D-0047: T-267, page 52, where
D-0047 noted that it was mainly ‘officials of various sorts’ who were present at the rank giving ceremony. See
also submissions in Prosecution Response, para. 43.
593
DRC-OTP-0009-0146-R01, from 0147 to 0148, para. 2(d).
594
See CLR2 Submissions, para. 52. D-0047 testified that the UPC went to Kobu in January/February 2004, but
the Chamber notes that, according to the witness, Mr Ntaganda was not present and that there is no concrete
evidence of his role in relation to this event, apart from D-0047 stating that he received a report of the visit
(D-0047: T-267, page 49; see also T-267-FRA, pages 45-46).
595
D-0306: T-267, pages 12 and 15-17, also referring to DRC-D18-0001-6754.
596
D-0306: T-267, pages 40-41.
597
D-0302: DRC-D18-0002-0023, at 0026, paras 21-22; D-0303: DRC-D18-0002-0001, at 0007, paras 37-40;
and D-0306: T-267, page 20.
598
D-0302: DRC-D18-0002-0023, at 0026, para. 20.

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limited, involvement of Mr Ntaganda in the pacification campaign.

Furthermore, the genuine nature of Mr Ntaganda’s actions is placed in doubt by

other evidence.599 While D-0303 testified that following a meeting in Largu, it

was agreed that the Hema could access Lendu markets in three villages,600 and

D-0306 testified that the process initiated by the FNI contributed to freedom of

movement,601 the latter also confirmed that, throughout 2004, the UPC

continued to harass the civilian population in Ituri,602 which is corroborated by

other sources.603

222. On the issue of demobilisation and integration into the FARDC of UPC/FPLC

soldiers, the Chamber notes that the evidence on Mr Ntaganda’s concrete role in

599
Contra Defence Submissions, para. 127 and Defence Response, paras 86 and 87. In this respect, the Chamber
has not accorded much weight to D-0305’s evidence on the outcome of the reconciliation activities or
Mr Ntaganda’s role therein. The witness testified that people in Ituri ‘be it the Lendu people, the Hema people
or Ngiti people […] liked [Mr Ntaganda] a lot because of the peace and security that he brought to the region’
(D-0305: T-266, page 36). The Chamber considers the credibility of the witness’s evidence on this subject,
and her general evidence on Mr Ntaganda’s character, to be low, noting that she is an acquaintance of
Mr Ntaganda’s (D-0305: T-266, page 38), her indication that the reason for her testimony was to counter
untrue things that have been said about Mr Ntaganda, in relation to whom she could not believe that he was
someone who would have committed violent crimes (D-0305: T-266, pages 38-39), a matter clearly
contradicted by the Chamber’s findings in this case, and further noting that she was evasive on the issue of her
alleged membership in the FPLC (D-0305: T-266, pages 44-46 and 58-62).
600
D-0303: DRC-D18-0002-0001, at 0007, para. 40.
601
D-0306: T-267, pages 20-21. The Chamber notes blanket statements from D-0302 that following pacification
meetings in Largu and Lopa, there were no more problems between the Hema and the Lendu, and that thanks
to Mr Ntaganda’s speeches, peace and reconciliation was restored between the two groups (D-0302: DRC-
D18-0002-0023, at 0026, paras 23-24). In assessing D-0302’s evidence, the Chamber notes other categorical
statements from him such as that when Mr Ntaganda became Chief of Staff at the end of 2003, he emphasised
the importance of protecting civilians (D-0302: DRC-D18-0002-0023, at 0025 to 0026, para. 19), that it was
his policy that soldiers should not commit crimes (D-0302: DRC-D18-0002-0023, at 0027, para. 27), that he
did not tolerate threats or crimes against Hema or Lendu (D-0302: DRC-D18-0002-0023, at 0027, para. 28),
and that Mr Ntaganda was deserving of a Nobel Prize and protected the civilian population and soldiers
(D-0302: DRC-D18-0002-0023, at 0027, para. 30). The Chamber notes that these statements are contradicted
by its findings in the Judgment, and notes that this alleged ‘complete shift in attitude’ come just months after
the occurrence of violent crimes against the Lendu civilian population for which the Chamber found Mr
Ntaganda guilty. Without further explanation for the motivation of this alleged sudden ‘complete shift in
attitude’, the Chamber gives very little weight to the testimony of this witness in this regard and to the
aforementioned blanket statements. For these reasons, the Chamber also dismisses the Defence’s arguments
regarding Mr Ntaganda’s alleged shift in attitude, see Defence Submissions, paras 124-134; see also Defence
Response, para. 86.
602
D-0306: T-267, page 36.
603
See DRC-OTP-0185-0843, from 0844 to 0845, para. 2(e), referring to ‘rising harassment against the civilian
population’ by Thomas Lubanga’s ‘faction of the militia’, with Mr Ntaganda (‘BOSCO’) as his military
appointee; and DRC-OTP-2057-0099, at 0099.

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this process is fairly limited.604 At its most significant, D-0020 testified that

Mr Ntaganda appointed an officer to oversee the demobilisation of 500

soldiers.605 Against this, the Chamber notes indications from MONUC that it

considered Mr Ntaganda a potential obstacle to the disarmament process in

early 2004,606 that disarmament and reintegration was, in any event, a legal

requirement,607 and that Mr Ntaganda himself declined to integrate into the

FARDC for a number of years.608

223. As to the Prosecution’s submission that MONUC and the international

community had ‘serious concerns’ about Mr Ntaganda and his group’s

‘ongoing criminal conduct’,609 the Chamber considers much of the material

relied on in support thereof to be of relatively low probative value in terms of

the actual conduct of Mr Ntaganda.610 However, there are nevertheless clear

604
The Chamber does not consider any of the documents referred to by the Defence in paragraph 135 of its
submissions or paragraph 91 of its response to add anything in this regard, noting that none of them speak to
Mr Ntaganda’s concrete role in the events depicted therein. The same applies to the December 2003 Acte
d’engagement cited by the Defence in paragraph 130 of its submissions, noting evidence from D-0047 that
Mr Ntaganda was not at the meeting where the document was created because of his fear of arrest by MONUC
(D-0047: T-267, pages 49, 64 and 68-69, also referring to DRC-OTP-0018-0108). D-0020 testified that in
mid-2004 Mr Ntaganda met with officers and informed them that they must disarm, demobilise or integrate in
the FARDC (D-0020: ICC-01/04-02/06-2397-Conf-AnxA, page 3, para. 15), and attended a demobilisation
ceremony with MONUC representatives (D-0020: ICC-01/04-02/06-2397-Conf-AnxA, pages 3-4, para. 17).
D-0047 testified that Mr Ntaganda worked with a government committee responsible for demobilisation and
was responsible for preparing lists of those who wanted to either demobilise or integrate (D-0047: T-267,
pages 62-63). However, in assessing D-0047’s evidence, the Chamber notes that D-0020 testified that in fact it
was Mr Ntaganda’s secretary who was in charge of compiling the lists for reintegration (D-0020: ICC-01/04-
02/06-2397-Conf-AnxA, page 4, para. 19), and information in a report from the Comité International
d’Accompagnement de la Transition, the oversight body working with institutions set up to assist in
disarmament, that later – in 2005 – Mr Ntaganda, Thomas Lubanga, and the UPC were not cooperating with
authorities in respect of the demobilisation program and raised allegations of assassinations and tortures on the
orders of the UPC hierarchy, in particular Mr Ntaganda, vis-à-vis combatants who chose to hand in their
weapons (D-0047: T-267, pages 85-86 and 88-90; and DRC-OTP-2103-1205, at 1267, second paragraph).
605
D-0020: ICC-01/04-02/06-2397-Conf-AnxA, page 4, para. 18.
606
See DRC-OTP-0009-0146-R01, at 0155, para 12, stating that ‘MONUC made it clear to the armed groups
that the Disarmament and Community Reintegration process would not be derailed by the provocations of
Bosco’s group and that the program would continue as planned’.
607
DRC-D18-0002-0063. See also D-0047: T-267, pages 60-61.
608
DRC-OTP-0086-0036 and D-0047: T-267, page 62, indicating that Mr Ntaganda was conferred the rank of
brigadier general in December 2004; and D-0300: T-223, page 18, indicating that he joined the national army
in 2009.
609
Prosecution Submissions, paras 107-109; and Prosecution Response, paras 42 and 47.
610
For many of the documents cited by the Prosecution, the Chamber notes that the sources of relevant
information are, according to the documents themselves, unconfirmed or require further corroboration, (see,
e.g., DRC-OTP-2066-0380, at 0380, para. 1(b); DRC-OTP-0007-0314, at 0316, para. 4(d); DRC-OTP-0004-

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indications that the UPC/FPLC, with Mr Ntaganda as its Deputy Chief of Staff,

was uncooperative with MONUC and other key institutions working for

pacification in Ituri at that time,611 and that according to MONUC, Mr Ntaganda

was a threat to peace and security during this period. 612 This, in the Chamber’s

view, undermines the Defence’s narrative of Mr Ntaganda’s ‘exceptional’

contribution to peace, security and reconciliation.

224. Taking into account all of the above, the Chamber does not consider a

genuine and concrete contribution to peace and reconciliation, or

demobilisation and disarmament on the part of Mr Ntaganda to be established

overall, on a balance of probabilities. It therefore does not take this into account

in mitigation.

5. Mr Ntaganda’s behaviour towards and cooperation with the Court

225. The Defence identifies several matters related to Mr Ntaganda’s behaviour

towards and cooperation with the Court which it avers should be credited in

mitigation: (i) his voluntary surrender to the Court;613 (ii) his lengthy testimony,

admission of potentially incriminating facts and respectful demeanour and

conduct in court;614 and (iii) his good conduct in detention and, in particular,

specific actions taken by him in the Detention Centre. 615

0372, at 0373, para. 1; and DRC-OTP-1029-0465, at 0467, para. 8(d)). For others, Mr Ntaganda’s actual role
in the events therein described is unclear (see, e.g., DRC-OTP-0185-0843, from 0844 to 0845, para. 2(e)). See
also in this regard the arguments of the Defence in paragraph 88 of its response. The Chamber also takes into
account that Mr Ntaganda’s poor reputation with MONUC may have been connected to its alleged siding with
Floribert Kisembo following the split within the UPC/FPLC, see Defence Response, para. 89.
611
On 7 November 2003, the UPC/FPLC, with Mr Ntaganda as the Deputy Chief of Staff, formally withdrew all
cooperation with MONUC and all participation in the institutions established by the Ituri Pacification
Commission, see D-0047: T-267, pages 70 and 80-81. See also DRC-OTP-0009-0146-R01, at 0155, para. 12;
and Prosecution Submissions, para. 108.
612
DRC-OTP-1029-0591, at 0603, paras 27-28; DRC-OTP-0142-0038; DRC-OTP-0142-0042; DRC-OTP-
2057-0099, from 0101 to 0103; and DRC-OTP-0154-0648, at 0648.
613
Defence Submissions, paras 142-143.
614
Defence Submissions, paras 144-147; and Defence Response, para. 83.
615
Defence Submissions, paras 148-150; and Defence Response, paras 81-82.

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226. The Prosecution submits that Mr Ntaganda’s surrender is not mitigating,616

that he has not cooperated with the Court in any appreciable manner617 and that

he should not be given any credit for his alleged good conduct in detention. 618

The Legal Representative of the Victims of the Attacks submits that

Mr Ntaganda has in no relevant way cooperated with the Court beyond his

initial surrender, which should be weighed having regard to its delay, 619 and

that, while deserving of due recognition, Mr Ntaganda’s specific conduct while

in detention highlighted by the Defence can only be given limited weight.620

a) Voluntary surrender

227. Mr Ntaganda surrendered voluntarily to the Court in March 2013.621 While

mindful of the considerable benefits for international courts and tribunals of

voluntary surrender,622 and noting that a suspect voluntarily surrendering him-

or herself to the Court upon learning of the existence of an arrest warrant

against him or her could be a factor to take into account for substantial

mitigation,623 the Chamber must consider the particular circumstances of Mr

Ntaganda’s surrender in the present case.

228. In this respect, the Chamber notes the significant lapse of time between

Mr Ntaganda’s surrender and the unsealing of the first arrest warrant against

him in 2008.624 Compared to the delay of five months in the case of Blaškić cited

616
Prosecution Submissions, para. 99; and Prosecution Response, paras 49-50.
617
Prosecution Submissions, paras 98-101; and Prosecution Response, paras 51-52.
618
Prosecution Submissions, paras 88-93; and Prosecution Response, para. 52.
619
CLR2 Submissions, para. 48.
620
CLR2 Submissions, paras 61-62.
621
ICC-01/04-02/06-44-Conf-Exp. See also ICC-01/04-02/06-41, para. 7; and submissions in Defence
Submissions, para. 142. The Chamber notes that Mr Ntaganda arrived at the ICC Detention Centre on 22
March 2013, ICC-01/04-02/06-41, para. 7.
622
See, e.g., ICTY, Martinović & Naletilić Appeal Judgment, para. 600.
623
See, e.g., ICTY Milošević Trial Judgment, para. 1003; ICTY, Lukić and Lukić Trial Judgment, para. 1093;
and ICTR, Rutaganira Trial Judgment, para. 145.
624
The first warrant of arrest for Mr Ntaganda was issued on 22 August 2006 and unsealed on 28 April 2008,
see ICC-01/04-02/06-18. The second warrant was issued on 13 July 2012, ICC-01/04-02/06-36-Red.

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by the Defence,625 the Chamber regards the delay of five years in this case as

substantial.626 Indeed, the Single Judge of Pre-Trial Chamber II reflected that ‘it

should not be forgotten that Mr Ntaganda had been at large for many years

since the issuance of the first warrant of arrest’ and that ‘Mr Ntaganda did not

choose to face justice, but instead managed to avoid apprehension during this

period, in total disregard of the serious accusations brought against him’. 627 The

Chamber considers that the delay associated with Mr Ntaganda’s surrender

reduces the value of its mitigating impact, and accordingly affords this factor no

weight in mitigation.

b) Conduct during the trial

229. The Chamber notes that good behaviour and compliance with the law are

expected of any accused or convicted person and are not normally taken into

account in mitigation unless exceptional.628 The Chamber recalls with

appreciation that, with the exception of his hunger strike, Mr Ntaganda was

consistently respectful and cooperative during court proceedings, including

notably consenting to absenting himself from the courtroom to facilitate the

testimony of certain witnesses.629

230. As to Mr Ntaganda testifying in his own defence, which the Defence submits

deserves significant credit,630 the Chamber notes at the outset, that an accused

625
Defence Submissions, para. 143, footnote 294.
626
The Chamber notes in this respect the jurisprudence of the ad hoc tribunals where trial chambers refused to
take voluntary surrender into account or ascribe it any weight in mitigation for a number of reasons, for
example in case of belated surrender only several years after the indictment, see, e.g., ICTY, Mrkšić et al.
Trial Judgment, para. 698; ICTY, Milutinović et al. Trial Judgment (Vol. 3), paras 1184, 1189, 1194 and 1204;
and ICTY, Popović et al. Trial Judgment, para. 2224.
627
ICC-01/04-02/06-147, para. 41, upheld by the Appeals Chamber, ICC-01/04-02/06-271-Red. In addition, the
Chamber notes that the motivations for Mr Ntaganda’s voluntary surrender are not clear. It observes that the
Single Judge of Pre-Trial Chamber II noted that the material before her suggested that the surrender may have
been prompted by a risk to be killed or by other external pressures, see ICC-01/04-02/06-147, paras 43-47.
628
Bemba Sentencing Judgment, para. 81. See also Katanga Sentencing Judgment, paras 127-129.
629
See, e.g., T-46, page 54. See also submissions in Defence Submissions, para. 147.
630
Defence Submissions, para. 145.

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has the right to remain silent.631 The Chamber emphasises that there is no

expectation that an accused will testify and that the choice to testify as a witness

in one’s own case is one that is to be made by an accused, in consultation with

his or her defence team. The Chamber therefore considers that an accused’s

choice not to remain silent does not, in and of itself, qualify as a mitigating

circumstance. Whether or not testifying will be considered as a mitigating

circumstance depends on the circumstances and content of the testimony. In the

present case, the Chamber notes that Mr Ntaganda gave lengthy and detailed

testimony and generally answered all questions put to him.632 On the other

hand, it notes that, while testifying about his involvement in the planning and

unfolding of the First Operation, the Chamber did not find Mr Ntaganda

credible on important aspects related to crimes committed therein for which he

was convicted633 and otherwise stated not to have been involved in the Second

Operation; he also denied that children under 15 years of age were recruited

into and later on formed part of the UPC/FPLC troops, or were subjected to

sexual violence.634 The Chamber also notes that Mr Ntaganda made no sincere

demonstrations of remorse towards his victims. 635 All of the above considered,

while noting with appreciation Mr Ntaganda’s respectful and positive

behaviour during trial, the Chamber does not consider his behaviour

exceptional so as to constitute a mitigating circumstance. The Chamber

therefore affords this factor no weight in mitigation.

631
Article 67(1)(g) of the Statute.
632
Judgment, paras 256-258.
633
See, e.g., Judgment, footnote 1431 (where the Chamber considered Mr Ntaganda not credible in relation to
his testimony that by the time he arrived in Mongbwalu, the entirety of the town had already been taken over),
para. 498 and footnotes 1434 and 1477 (where the Chamber considered Mr Ntaganda not credible in relation
to his testimony that, when the UPC/FPLC entered Mongbwalu, the population had already fled and that he
only saw one body in Sayo and was not an eyewitness to any other killings), footnote 1507 (where the
Chamber considered Mr Ntaganda not credible in relation to his denial of ordering killings in Nzebi), para.
528 and footnote 1574 (where the Chamber considered Mr Ntaganda not credible in relation to his testimonu
that only one person was taken ‘prisoner’ during the First Operation and that this person was subsequently
released) and para. 533 (where the Chamber considered Mr Ntaganda not credible on his denial of having
killed Abbé Boniface Bwanalonga).
634
Judgment, para. 256.
635
See paras 236-239 below.

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c) Conduct in detention

231. The Chamber notes that the Prosecution’s position in relation to

Mr Ntaganda’s conduct while in detention is based, in part, on it contesting the

information relied upon by the Defence, namely the Registry Report on

Mr Ntaganda’s behaviour while being detained at the Detention Centre.636 The

Chamber addresses the Prosecution’s challenges on this point before turning to

the substance of the issue.

232. The Chamber recalls that further to the Chamber’s instruction, 637 the Registry

filed the Registry Report on 29 July 2019. Although it did not respond to, or

otherwise comment on, the report prior to making its written submissions on

sentencing, the Prosecution avers in the Prosecution Submissions that the

Registry Report is ‘incomplete and inaccurate’ and that as a result of its alleged

‘shortcomings’, the Chamber cannot rely on it.638

233. The Chamber considers the Prosecution’s critique inapposite. Any concerns

about the accuracy of the Registry Report should have been raised earlier, in

accordance with the regular procedure and timelines, and not at a stage at

which the Registry could no longer respond to the critique. In view of the

Chamber, the Prosecution’s contentions do not raise doubt as to accuracy of the

Registry Report. The Chamber therefore dismisses the Prosecution’s criticism of

the Registry Report, and sees no reason why it should not rely on the

information on Mr Ntaganda’s behaviour in detention provided by a neutral

organ of the Court.

234. Turning to the substance of the issue, the Registry Report indicates that

Mr Ntaganda’s behaviour in detention has been, according to the Chief Custody

Officer, ‘exemplary’, that he has always been respectful towards the Detention

636
Prosecution Submissions, paras 89-90.
637
Email from the Chamber to the Registry, copied to the parties and participants on 11 July 2019, at 16:29.
638
Prosecution Submissions, paras 89-90.

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Centre staff, has good to excellent relationships with other detainees, and

‘played a constructive role and intervened appropriately with the management

of the ICC DC on behalf of other detainees, when those other detainees could be

described as struggling with being in custody’.639 The Addendum to the

Registry Report details two specific examples of the latter type of behaviour 640

noting that, on two occasions, Mr Ntaganda’s actions assisted Detention Centre

staff in executing their duty of care.641

235. The Chamber considers that Mr Ntaganda’s specific actions in detention as

detailed in the Addendum to the Registry Report to be commendable.

Notwithstanding, considering this against the overall gravity and aggravating

circumstances established above for the crimes of which he has been convicted,

the Chamber considers the weight accorded to be too limited to impact on the

individual and overall sentences.

6. Actions and statements in relation to the victims

236. The Chamber notes that a sincere statement of remorse may be taken into

account as a mitigating circumstance, and that expressions of sympathy or

genuine compassion for the victims, while also relevant for the determination of

the sentence, may be accorded less weight.642 Efforts to compensate victims may

also be considered as a mitigating circumstance. 643

237. In his unsworn statements at the end of closing arguments and at the end of

the sentencing hearing, Mr Ntaganda stated respectively that he feels ‘great

compassion as a result of all the suffering and harm visited upon the civilian

639
ICC-01/04-02/06-2367-Conf-Anx, page 2.
640
ICC-01/04-02/06-2390-Conf-AnxI, paras 10-16.
641
ICC-01/04-02/06-2390-Conf-AnxI, para. 11. The Chamber also notes in this regard the matter and potential
consequences as explained in paragraphs 14-15.
642
See Katanga Sentencing Judgment, para. 117 and the cases cited therein; and Al Mahdi Judgment,
paras 103-105.
643
Rule 145(2)(a)(ii) of the Rules.

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populations of all the ethnic groups’,644 and that he wished to also express his

‘deep compassion for all the victims from all the ethnic groups who suffered

during the conflicts that have devastated the Congo during this period of time,

namely 2002 and 2003, conflicts which still continue’.645

238. While noting with appreciation these statements of compassion from

Mr Ntaganda, the Chamber observes that they are very general, aimed at the

victims of all ethnic groups who suffered during the conflict in the DRC

between 2002 and 2003 and continuing, rather than specifically aimed at the

victims of his own crimes. The Chamber also considers that these statements of

compassion must be viewed in light of the other parts of his latter unsworn

statement, wherein he stated that that he stands by his testimony, including key

aspects on which the Chamber found him to be not credible, namely his denial

of the commission of charged crimes,646 his statement that he is not a criminal,

his claim that a number of witnesses who testified against him told ‘falsehoods’,

and that his aim has always been ‘to set in place the conditions that would

allow all the people of the Congo, without distinction, to live in peace and

harmony’.647 There is also no evidence that Mr Ntaganda has acted in any way

in assistance of the victims of the crimes for which he was convicted.648

239. In this context, the Chamber does not consider that Mr Ntaganda has made

any sincere demonstrations of remorse, nor that his abovementioned

expressions of compassion are sufficient to constitute a mitigating

circumstance.649

644
T-264, page 67.
645
T-268, page 52. See also submissions in Defence Submissions, para. 155.
646
See also para. 230 above.
647
T-268, pages 51-52.
648
See also submissions in Prosecution Submissions, para. 106; and CLR1 Submissions, para. 58.
649
See also submissions in Prosecution Submissions, paras 102-106; CLR1 Submissions, para. 58; and CLR2
Submissions, para. 60.

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7. Mr Ntaganda’s family circumstances and the conditions of his detention

240. The Chamber notes that Mr Ntaganda is married and has seven children, six

of whom are minors.650 It also notes that he has been declared indigent for the

purposes of this trial, and that, according to the Registry, as at July 2019, it had

neither received nor uncovered any information which could confirm

Mr Ntaganda’s ownership of any assets.651

241. The Defence makes several related submissions in respect of Mr Ntaganda’s

family circumstances and conditions of detention. 652 It firstly avers that the six

years and three months spent by Mr Ntaganda in pre-conviction detention

should be taken into account in mitigation of his sentence.653 Second, it submits

that the mitigation warranted therefrom should be increased by the conditions

arising from Mr Ntaganda’s detention in The Hague, which it argues has had a

heavy impact on him and his family.654 These are namely that he has received

only six family visits during his period of detention due to his limited financial

resources,655 that due to logistical difficulties and insufficiency of funds in the

Registry Trust Fund for Family Visits, he has not seen his three youngest

children since March 2013,656 and that the burden of these limited family visits

was substantially increased during the period of strict monitoring of his

telephone communications657 and compounded by the remoteness of his place

of detention from his family.658 The Defence further submits that Mr Ntaganda

is a loving and solicitous husband and father,659 and that an extremely long

650
T-209, pages 42-43.
651
ICC-01/04-02/06-2367-Conf, para. 3.
652
Defence Submissions, paras 6-7, 151-154 and 156.
653
Defence Submissions, para. 151.
654
Defence Submissions, paras 152-154 and 156.
655
Defence Submissions, para. 152.
656
Defence Submissions, paras 6 and 152.
657
Defence Submissions, para. 153.
658
Defence Submissions, para. 156.
659
Defence Submissions, para. 156.

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period of further detention, whether at a great distance from his family or

closer, will have a major impact on Mr Ntaganda and his family. 660

242. In relation to the period of Mr Ntaganda’s pre-conviction detention, which is

six years and three and a half months, the Chamber notes that a periodic review

of Mr Ntaganda’s sentence was conducted by this and the pre-trial chamber661

and that any time previously spent in detention will be deducted from the

sentence to be imposed on Mr Ntaganda in accordance with Article 78(2) of the

Statute.662 The Chamber does therefore not consider this issue further.663

243. As to the other matters raised by the Defence in relation to the conditions

arising from Mr Ntaganda’s detention, the Chamber recalls that the restrictions

on Mr Ntaganda’s contacts were imposed on him because of his own actions. 664

In imposing those restrictions, the Chamber was mindful of Mr Ntaganda’s

right to family life and took into account the need for the restrictions imposed to

be necessary and proportionate in this regard.665 The Chamber further recalls

that these restrictions have been periodically reviewed,666 including as to their

continuing proportionality to and impact on Mr Ntaganda’s family and private

life, including on his wife and children.667 The Appeals Chamber held in respect

of the Chamber’s first review that Mr Ntaganda’s ‘right to privacy and family

life was being appropriately balanced with the objectives of the stated aim of

660
Defence Submissions, para. 156.
661
Mr Ntaganda’s detention has been reviewed six times since his surrender to the Court and on each occasion it
was decided that his detention should be continued. See ICC-01/04-02/06-147, upheld by the Appeals
Chamber, ICC-01/04-02/06-271-Red, OA; ICC-01/04-02/06-284; ICC-01/04-02/06-335; ICC-01/04-02/06-
391; ICC-01/04-02/06-477; and ICC-01/04-02/06-670-Conf.
662
See also submissions in CLR2 Response para. 24.
663
The Chamber further notes that in the Blaškić case cited by the Defence, the eight year period of detention
pending the final outcome of the case was considered as a factor in mitigation in light of the fact that the
tribunal had been ‘hampered by the complexity’ of the proceedings (ICTY, Blaškić Appeal Judgment,
para. 728; see also Defence Submissions, para. 151). The Chamber does not consider this issue to apply in the
present case, see also submissions in Prosecution Response, para. 53; and CLR2 Response para. 24.
664
See para. 202 above. See also submissions in Prosecution Response, para. 54.
665
ICC-01/04-02/06-785-Conf-Exp, para. 62.
666
ICC-01/04-02/06-785-Red, para. 70.
667
ICC-01/04-02/06-1494-Conf-Exp, paras 35-41; ICC-01/04-02/06-1913-Conf-Exp, paras 27 and 32; and ICC-
01/04-02/06-2236-Conf, para. 27.

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the restrictions’.668 In relation to the Defence’s submission that the impact of the

restrictions on Mr Ntaganda’s contacts was compounded by factors ‘outside the

Chamber’s control’,669 the Chamber recalls further that during its continuing

review of the restrictions, it expressly took account of such factors, including the

limited number of family visits received since Mr Ntaganda’s arrival at the

Detention Centre,670 the practical limitations of the Registry in relation to which

the Chamber had no direct oversight671 and the length of time that the

restrictions had been in place.672 It therefore considers that the matters raised by

the Defence were already appropriately taken into account by the Chamber in

imposing and reviewing the restrictions.

244. For all of these reasons, the Chamber does not consider Mr Ntaganda’s family

circumstances, and the related matters of his detention, to constitute mitigating

circumstances in this case.

245. The Defence raises the matter of Mr Ntaganda’s limited financial resources

and the Registry’s declaration of indigence in the context of its submissions

above.673 The Chamber does not consider Mr Ntaganda’s financial position to be

of further separate relevance in the context of the present discussion on

mitigating circumstances.674

668
ICC-01/04-02/06-1817-Conf, para. 101.
669
Defence Submissions, paras 7 and 154, referring in particular to three ‘negative consequences’ outside the
Chamber’s control: (i) the resource constraints that limited Mr Ntaganda’s communications so severely;
(ii) Mr Ntaganda’s distance from his family, which made alternative forms of communication impossible; and
(iii) the long duration of the proceedings, which caused the restrictions to continue for a long period.
670
ICC-01/04-02/06-1913-Red2, para. 27.
671
ICC-01/04-02/06-2236-Red, para. 26.
672
ICC-01/04-02/06-1913-Red2, para. 27; and ICC-01/04-02/06-2236-Red, para. 26.
673
Defence Submissions, para. 6. See also T-268, page 42.
674
See also submissions in Prosecution Submissions, paras 95-97.

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V. DETERMINATION OF THE OVERALL SENTENCE

246. As set out above, the Chamber determines the following sentences in respect

of the crimes for which Mr Ntaganda has been convicted, in the order the

crimes were charged:

 murder and attempted murder as a crime against humanity and as a war

crime (Counts 1 and 2): 30 years of imprisonment;

 intentionally directing attacks against civilians as a war crime (Count 3):

14 years of imprisonment;

 rape of civilians as a crime against humanity and as a war crime (Counts 4

and 5): 28 years of imprisonment;

 rape of children under the age of 15 incorporated into the UPC/FPLC as a

war crime (Count 6): 17 years of imprisonment;

 sexual slavery of civilians as a crime against humanity and as a war crime

(Counts 7 and 8): 12 years of imprisonment;

 sexual slavery of children under the age of 15 incorporated into the

UPC/FPLC as a war crime (Count 9): 14 years of imprisonment;

 persecution as a crime against humanity (Count 10): 30 years of

imprisonment;

 pillage as a war crime (Count 11): 12 years of imprisonment;

 forcible transfer of the civilian population as a crime against humanity

(Count 12): 10 years of imprisonment;

 ordering the displacement of the civilian population as a war crime

(Count 13): 8 years of imprisonment;

 conscripting and enlisting children under the age of 15 years into an armed

group and using them to participate actively in hostilities as a war crime

(Counts 14, 15, and 16): 18 years of imprisonment;

 intentionally directing attacks against protected objects as a war crime

(Count 17): 10 years of imprisonment; and

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 destroying the adversary’s property as a war crime (Count 18): 15 years of

imprisonment.

247. In the circumstances of the case, taking into consideration the nature and

gravity of the crimes, as well as Mr Ntaganda’s solvency, the Chamber does not

consider it appropriate to also impose a fine or forfeiture of proceeds.675 The

Chamber will therefore only impose imprisonment.676

248. The Chamber now proceeds to the determination of the joint sentence

specifying the total period of imprisonment pursuant to Article 78(3) of the

Statute. Under that provision, the total period of imprisonment shall be no less

than the highest individual sentence pronounced, i.e. in this case 30 years of

imprisonment. Furthermore, in conformity with Article 77(1) of the Statute, the

total period of imprisonment shall not exceed 30 years of imprisonment or a

sentence of life imprisonment.

249. As set out above, the sentence determined for the crime against humanity of

persecution combines Mr Ntaganda’s culpability and the aggravating

circumstances for the underlying crimes (i.e. the crimes that Mr Ntaganda was

convicted for under Counts 1 to 5, 7 to 8, 11 to 13 and 17 to 18). The overlap in

conduct that underlies the various crimes has therefore been taken into account.

However, the total sentence to be imposed on Mr Ntaganda must further reflect

Mr Ntaganda’s conviction of the additional crimes committed vis-à-vis children

under the age of 15 who were recruited into the UPC/FPLC (i.e. the crimes he

was convicted for under Counts 6, 9 and 14 to 16) so as to properly account for

the multiplicity of crimes and his overall culpability. As the highest individual

sentence is 30 years of imprisonment, and the maximum imprisonment for a

675
See Article 77(2) of the Statute and Rules 146 and 147 of the Rules.
676
The Chamber notes in this regard that none of the parties or participants suggested the imposition of a fine or
forfeiture of proceeds.

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specified number of years is also 30 years, the Chamber can only impose

30 years or life imprisonment as the overall joint sentence.

250. Life imprisonment is permissible as a penalty under the Statute when justified

by the extreme gravity of the crime and the individual circumstances of the

convicted person.677 The Legal Representative of Victims of the Attacks

communicated the wish of the victims represented by him for a joint sentence of

life imprisonment to be imposed.678 The Chamber has taken note of this wish.

However, having regard to its conclusions per crime, noting the overlap in

conduct between part of these crimes, and on the basis of all further

considerations relevant to this case, notwithstanding the fact that there are no

mitigating circumstances to be afforded any weight, the Chamber finds that the

crimes for which Mr Ntaganda has been convicted, despite their gravity and his

degree of culpability, nevertheless do not warrant a sentence of life

imprisonment.

251. Accordingly, in the particular circumstances of this case, as a result of the

highest individual sentence and the statutorily mandated maximum term of

imprisonment for the joint sentence being the same, no further discretion is

given to the Chamber in the determination of the overall joint sentence, which

shall therefore be 30 years of imprisonment.

252. Pursuant to Article 78(2) of the Statute, Mr Ntaganda is entitled to credit

against this sentence for the time he has spent in detention in accordance with

an order of this Court, namely since 22 March 2013, following his surrender to

the Court and arrival at the ICC Detention Centre, and pursuant to the two

arrest warrants issued for him on 22 August 2006 and 13 July 2012, respectively.

677
Article 77(1)(b) of the Statute.
678
CLR2 Submissions, para. 63.

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VI. DISPOSITION

For the foregoing reasons and pursuant to Articles 76 and 78 of the Statute, the

Chamber:

SENTENCES Mr Ntaganda to a joint sentence of thirty (30) years of imprisonment;

RECALLS that the time Mr Ntaganda has spent in detention pursuant to an order of

this Court, from 22 March 2013 onwards, shall be deducted from his sentence; and

INFORMS the parties and participants that reparations to victims pursuant to

Article 75 of the Statute shall be addressed in due course.

Done in English. A French translation will be prepared, but the English version

remains authoritative.

__________________________

Judge Robert Fremr, Presiding Judge

__________________________ __________________________

Judge Kuniko Ozaki Judge Chang-ho Chung

Dated 7 November 2019

At The Hague, The Netherlands

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