Rapes without rapists: The Curious Case of Bemba trial at ICC

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Aman

(7 min. read)

The Appeals Chamber [AC] decision in the case of the Prosecutor v Jean-Pierre Bemba Gombo has generated a lot of debate and discussions around the world. Academicians have written and talked about the various nuances of the judgment and its possible repercussions on the understanding of international criminal law in general and of individual criminal responsibility in particular.

There are many firsts of this case like a) first conviction for sexual crime b) first time the ICC’s AC got the chance to interpret Superior responsibility [Article 28] etc.

So what exactly was the case about?

Mr. Jean-Pierre Bemba Gombo was the President of Mouvement de libération du Congo [MLC] and Commander-in-Chief of the Armée de Libération du Congo [ALC]. In 2002, 1500men under his command were sent to Central African Republic [CAR]. The armed conflict which ensued resulted in ‘widespread attacks against civilian population’ of CAR. In December 2004, the CAR government referred the matter to the ICC. The prosecutor then started an investigation after which an arrest warrant was issued by the Pre-Trial Chamber [PTC]. Accordingly, Mr. Bemba was arrested by the Belgian authorities and was subsequently transferred and surrendered to the ICC.

Charges

Mr. Bemba was prosecuted for War Crimes of Murder, Rape and Pillaging and for Crimes against Humanity of Murder and Rape. The Trial Chamber [TC], after hearing the matter for 330 working days, convicted him on all the charges and awarded a sentence of 18 years of imprisonment.

However, on appeal, he has now been acquitted of all the charges. This AC’s judgment is the subject matter of this post.

Bemba Gombo

AC’s Judgment of 08th June 2018

The AC of the ICC has five judges including the President of the court [Article 39 (2)(b)(i) read with Article 39(1)].

The five judges in Bemba’s appeal were Judge Christine Van den Wyngaert (Presiding Judge), Judge Chile Eboe-Osuji, Judge Sanji Mmasenono Monageng, Judge Howard Morrison and Judge Piotr Hofmański.

On 8th June, 2018 the AC reversed the TC’s findings thereby acquitting Mr. Bemba of all the charges. However, the bench was divided in its opinion [3:2]. Judge Wyngaert, Judge Eboe-Osuji and Judge Morrison held that TC had erred in its findings. Judge Monageng and Judge Hofmański explained their dissent in 269 pages as compared to the majority decision of 80 pages.

Mr. Bemba had raised six grounds of appeal [para 29]. However, the AC decided that only the second and third grounds of appeal merits attention. These two grounds were of a) conviction exceeding the charges and b) responsibility as a military commander. With respect to the second charge it was his position that ‘nearly two thirds of the underlying acts for which he was convicted were not included or improperly included in the Amended DCC and fall outside the scope of the charges’ [para 74].

As far as the third issue was concerned, he had five objections to it [para 30]. He submitted that the TC had erred in finding, inter alia, that he had effective control, that he had actual knowledge, that he didn’t take necessary and reasonable measures.

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Analysis of the AC’s Judgment

There are two main points in the AC’s judgment. These are –

  1. Procedure of the ICC and
  2. Command responsibility [Article 28]

Regarding Procedure

The court has three chambers. These are PTC, TC and AC. The quantum of authority they have rises in ascending order from the PTC. PTC has the job of checking whether the investigation has been genuine or not, to issue arrest warrants if there are reasonable ground to believe that the crimes have been committed. The TC then starts the trial, obviously after summons are served, accused is arrested and surrendered to the court. It is the TC which determines the quality and quantity of evidence and witnesses to be presented [Rule 54]. The parties can then appeal against the TC’s decision to the AC on the grounds of

  1. Procedural error,
  2. Error of fact,
  3. Error of law, or
  4. Any other ground that affects the fairness or reliability of the proceedings or decision.

The last ground is available only to the convicted person.

What this elaborate procedure means is that the PTC has been given the task of merely assessing that the case is genuine or not, TC has been given the task to try the case and find if the suspect is guilty or not after assessing all the evidence and witnesses and finally the AC is to remove any apparent error of law or fact.

However, this AC judgment, as has been noted by Alex Whiting, elevates the before and after while diminishing the trial itself. It aims to amend the Article 58 requirement of ‘reasonable ground to believe’. It now demands that the PTC shall assess every single charge in detail and that any new charge can’t be added afterwards.

This is preposterous. The court seems to have forgotten the fact that it exercises ‘jurisdiction over persons for the most serious crimes of international concern’ and more often than not these most serious crimes are not going to be easy like a municipal trial. This becomes extremely important in a case like this, where a Congolese military commander had troops operating in CAR and these troops committed war crimes and crimes against humanity. Also to be noted is the fact that the trial itself went on for such a long time and it is only natural that within this time frame many new evidence will appear and many new witnesses will come.

Regarding Commander’s Responsibility

The first reaction of many academicians vis-a-vis this judgment was of surprise at the apparent u-turn in the approach of the AC to determine a commander’s responsibility.

Diane Marie Amann has highlighted how the AC ignored the word ‘all’ and focused rather on necessary’ and ‘reasonable’. This distorted ‘defendant friendly approach’ has resulted in the acquittal. Article 28(a)(ii) provides “[t]hat military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution”. [Emphasis mine]

The AC missed the word ‘all’ used in the section. To the contrary it went on to state that ‘it is not the case that a commander must take each and every possible measure at his or her disposal’ (para 169). According to AC, ‘[a]rticle 28 only requires commanders to do what is necessary and reasonable under the circumstances’. It thus omits the word ‘all’. Moreover, it gives no authority to back its purported amendment of article 28.

Further, it gave unnecessary emphasis on the word ‘reasonable’. In a very sympathetic tone, it begs us to consider that Mr. Bemba’s military forces were acting in a foreign country altogether [Mr. Bemba is a Congolese citizen] and hence he had limited control over them. It thus terms him as a ‘remote commander’ [para 171]. It notes that TC should have specifically identif[ied] what a commander should have done in concreto failing to note that the TC had done exactly that as is evident from para 197 of TC’s judgment.

With this judgment the court has moved away from the settled principle of superior responsibility which was developed at the Nuremberg and Tokyo trials and was upheld by the ad hoc tribunals. The far reaching repercussions of this move will be evident in the upcoming hearing and trials not only at ICC but also at the various ad hoc and domestic tribunals.

After-effects of the Judgment

On 13th June 2018, the Prosecutor issued a statement on the AC’s judgment. Respecting the judgment and its finality she nonetheless highlights certain features of it. She notes the ‘significant and unexplained departure’ from the ‘traditional model of appellate review of factual errors’.

This was followed by a statement from the President on 14th June 2018. While he refrained from making any comment on the case, he did talk about the ‘fundamental principle of judicial independence’ guiding the functioning of the court and asked all the parties concerned to keep those principles in mind while making any post-judgment statement.

In the end, the case which started on 21st December 2004 [when CAR referred the matter to ICC] ended with two Judges in the Majority deciding to acquit, one Judge in the Majority allowing the appeal, but favouring a new trial, and the two dissenting Judges upholding the conviction.

Amidst all this, spare a thought for the victims of these crimes. They have been patiently cooperating with the court for the last 13 and half years only to be told that yes, crimes were committed against them, but those crimes were committed by no one. What this means for the Trust Fund for Victims and whether they will get any reparations remains uncertain and that’s the most horrifying aspect of this case.

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