Geoffrey S. Corn, STCL Houston’s Gary A. Kuiper Distinguished Professor of National Security Law, recently co-authored an amicus brief which was cited multiple times in the Appeals Chamber judgment related to an important case before the International Criminal Court (ICC). Professor Corn also was among a small number of amicus authors invited by the Appeals Chamber to appear before the court to offer further observations on the issues raised in the case.
The case involved Bosco Ntaganda’s appeal from his trial court conviction for a variety of crimes in violation of the Statute of the International Criminal Court. These crimes arose during his role as the former deputy chief of staff and commander of operations of the Forces Patriotiques pour la Libération du Congo (FPLC). In 2019, Ntaganda was found guilty of 18 counts of war crimes and crimes against humanity. The Appeals Chamber affirmed Ntaganda’s original conviction and sentence, although the issue that generated the most attention had very little to do with this outcome.
Appeals at the ICC may be brought by either the defense or The Office of the Prosecutor (OTP). The issue Professor Corn addressed was, ironically, not one raised by Ntaganda. Instead, the OTP asked the Appeals Chamber to reverse the Trial Chamber’s interpretation of the definition of an “attack” as it related to the pillage and destruction of protected property committed by Ntaganda’s forces in ‘mopping up’ operations. The OTP pressed a broad definition of this term that would in effect include any act of violence in the context of an armed conflict. The Trial Chamber rejected this interpretation, concluding that an “attack” within the meaning of the Statute has the same meaning as it does in international humanitarian law (the law of war): an act of violence that is part of combat action directed against the enemy or the civilian population. Several amici, including Corn and his colleagues, supported this more historically understood meaning.
The Appeals Chamber ultimately rejected the OTP’s request to overturn the Trial Chamber’s more restrictive definition, although the disparate opinions resulted in a less than clear rationale. However, the strongest support for the Trial Chamber’s interpretation came in a separate opinion filed jointly by Judge Howard Morrison and Judge Piotr Hofmański. The two judges relied on a variety of sources to support their opinion, including the amicus brief submitted by Corn et all, and specifically their proposed definition of an “attack” as a “combat action”, meaning “violent acts directed at harming the adversary (including the civilian population and civilian objects) through physical injury or destruction.”
It should be noted that Professor Corn’s amicus brief in no way mitigated the significance of Ntaganda’s criminal responsibility. Instead, the brief emphasized the important distinction between different categories of war crimes, with abuses unrelated to combat action against an enemy falling within the scope of crimes such as pillage, looting, and destruction of civilian property. However, because ‘attacks’ are subject to a comprehensive legal regime, the concern was that treating every act of violence in an armed conflict as an attack would distort the logic of the law and undermine the law’s clarity.