Bemba acquittal rested on naïve jurisprudence

What about command responsibility?

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Former DRC VP Jean-Pierre Bemba during his ICC session
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By Shadrack Muyesu

On June 8, 2018, the Appeals Chamber of the International Criminal Court overturned a 2016 decision that had found Congolese warlord and former vice president, Jean-Pierre Bemba Gombo, guilty of war crimes and crimes against humanity.

Bemba had been in ICC detention since his arrest in Belgium in 2008. After a trial that lasted almost four years, the ICC’s Trial Chamber III found him liable under the theory of command responsibility for his failure to prevent and punish the criminal behaviour of his troops, who committed rape, murder, and pillage while in the Central African Republic.

The Appeals chamber’s decision is controversial, to say the least – not just because of the status of the defendant and the magnitude of crimes in question, but also the implication of the Court’s determination on future cases and the narrow majority of three out of five judges by which it was conceived. The decision also means that there will neither be compensation for victims of the war nor reparation for a principal champion of the war in Bemba. 

In terms of jurisprudence, the case delivered two telling pronouncements. The first, by the Trial Chamber, is that Warlords are accountable for the actions of their troops. The second, by the Appeals Chamber is that charges must be specific and distinct. Although sound, the appeals decision has come in for severe criticism as it seemingly rejects the legal application of Command Responsibility.

On March 21, 2016, Trial Chamber III had concluded, “as a person effectively acting as a military commander and with effective control over the Mouvement de Libération du Congo (MLC) troops, Bemba was criminally responsible pursuant to Article 28(a) of the ICC Rome Statute for the crimes against humanity of murder and rape, and the war crimes of murder, rape and pillaging committed by the MLC troops in the Central African Republic (CAR) from on or about 26 October 2002 to 15 March 2003.”

Bemba filed an appeal on the grounds that: the trial was unfair; the conviction exceeded the charges; he was not liable as a superior; the contextual elements were not established; and that the Trial Chamber had erred in its approach to the identification of evidence. In summation, Bemba argued that such procedural errors invalidated the conviction.

Addressing itself to the matter, The Appeals Chamber limited itself to grounds two and three of the appeal. The Appeals Chamber also asked whether the Trial Chamber had applied the Standard of Proof correctly. In doing so, it reminded itself that the Court must be satisfied that the factual findings made are beyond reasonable doubt, are clear and are unassailable (to convict) – both in terms of evidence and rationale. As well settled, the burden of proof was the Prosecution’s to discharge.

Specificity

During the confirmation process, in the document containing the changes, the Prosecution listed a number of alleged criminal acts of murder, rape and pillaging. The Court observed that, by using the words “includes” and “includes but are not limited to” in the description of crimes, the Prosecution indicated that the list was not exhaustive. The Trial Chamber therefore confirmed the charges in broad terms.

The Appeals Chamber also took the view that the Trial Chamber acted in error when it convicted Bemba on the basis of, inter alia, information on individual criminal acts that the prosecution only provided later and was not in the charge sheet. Agreeing with Bemba that nearly two-thirds of the acts for which he was convicted were not included or were otherwise improperly included in the charge sheet – thus widening the scope of the charges – the Appeals Chamber noted that the Trial Chamber’s conviction made no reference to even an approximate number of individual criminal acts of murder, rape and pillaging that it (the Trial Chamber) found established. As well, it did not make any further demarcation on the scope of the conviction. The conviction appeared to cover all the crimes committed by MLC Soldiers, which according to the Appeals Chamber, amounted to a great injustice.

Thus, where it should have been specific, the Appeals Chamber found that the Trial Chamber’s decision was absurdly broad and hence did not reflect the crimes for which Bemba had been charged.

Scope of charges

The Appeals Chamber further noted that while the amended charge sheet and the confirmation decision were more specific in identifying the criminal acts for which Bemba was charged (being one count of murder, 20 counts of rape and three counts of pillage), the criminal acts that the Prosecution added after the confirmation decision by means of disclosure and inclusion in the ancillary documents could not be said to have been part of the facts and the circumstances contemplated by Article 74. Any additional changes would have required an amendment of pleadings; as such, Bemba could not be convicted of them.

The third ground of appeal

On the third ground, the Appeals Chamber found that the Trial Chamber erred in finding that Bemba had failed to take all necessary and reasonable measures to prevent or repress the crimes committed by the MLC forces or report them to the competent authorities.

Bemba raised a number of grounds in support of the third ground. He averred that the Trial Chamber: failed to apply the correct legal standard; misappreciated the Limitations of the MLC’s jurisdiction and competence to investigate; ignored that Bemba had asked the Central African Republic Prime Minister to investigate the allegations; erred by taking into account irrelevant considerations and that its findings on the measures taken were unreasonable, misstated and ignored relevant evidence.

Addressing itself to these issues, the Appeals
Chamber identified serious errors in the Trial Chamber’s approach. Inter alia, it found that the Trial Chamber erred in failing to appreciate the limitations Bemba faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country. In its view, the Trial Chamber ignored significant testimony showing logistical difficulties and cooperation between the MLC and the CAR government.

Secondly, it found the Trial Chamber to be in error for failing to admit into evidence a letter Bemba wrote to the CAR authorities calling for them to investigate any crimes, and finding Bemba had not asked CAR to conduct any investigations. It was, in fact, not correct the conclusion that Bemba failed to take necessary steps.

Third, the Appeals Chamber found that the Trial Chamber erred in determining that Bemba’s motivations precluded him from taking the required measures in good faith. It ruled, “The motive to preserve the reputation of troops does not render the measures taken any less reasonable or invalid in preventing crime. The measures taken by a commander cannot be faulted for poor execution.” As such, the Trial Chamber was wrong in faulting Bemba for the poor execution of the measures he ordered in repressing MLC’s crimes.

Fourth, the Trial Chamber erred in finding that Bemba failed to empower other MLC officials to fully and adequately investigate and prosecute crimes. In its view, the position taken by the Trial Chamber contradicted its earlier finding that the MLC officials conducted themselves responsibly in the field.

Finally, the Court found that the Trial Chamber erred by basing its assessment of necessary and  reasonable measures on the totality of crimes allegedly committed by the MLC, whereas only a limited number of these crimes were proved beyond reasonable doubt.

The Court established that a finding that the measures taken by the commander were insufficient in repressing and preventing extended crime does not mean that the measures were also insufficient to repress the limited number of specific crimes of which the commander is ultimately convicted.

In summation, the Appeals Chamber found that contrary to the need and importance of total discovery, nowhere in the Prosecutions Pleadings was Bemba made aware of this measure. As a result of the lack of proper notice, Bemba suffered prejudice as a matter of right, had to be acquitted (

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