In its judgment of 8 June 2018, the Appeals Chamber of the International Criminal Court (ICC) acquitted Jean-Pierre Bemba Gombo of war crimes and crimes against humanity committed by his troops between October 2002 and March 2003 in the Central African Republic (CAR). The Mouvement de Liberation du Congo (MLC), an erstwhile armed group based in the Democratic Republic of Congo (DRC), and chaired by Bemba, was invited to intervene in the CAR and support President Ange-Félix Patassé in suppressing a rebellion led by General François Bozizé. The Appeals Chamber’s judgment reversed Bemba’s conviction by the Trial Chamber in March 2016 and also his sentence to 18 years imprisonment in June 2016. Bemba was prosecuted as a military commander under Article 28(a) of the Rome Statute.
Bemba’s acquittal has generated a lot of controversy and debate. The first controversy stems from within the ICC itself. The Appeals Chamber did not adopt its judgment unanimously but on a slight three to two majority, with Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański dissenting. The majority of judges (Christine Van den Wyngaert, Howard Morrison and Chile Eboe-Osuji) delivered separate opinions (here and here) expressing divergent views on the many legal issues arising from the case. Second, this divergence of legal viewpoints has continued after the delivery of the majority decision. The ICC Prosecutor sharply criticised the judgment, whilst the ICC President reacted by recalling that the judiciary is separate from her office and judges are independent in performing their functions. Third, there is a great divergence of views on the judgment among scholars with commentators praising the majority decision for its legal correctness and others arguing that the Appeals Chamber got it wrong.
This post seeks to demonstrate why the Appeals Chamber’s decision has provoked so much controversy. In this regard, the post suggests two main explanations. The first pertains to the technical application of the law and stems from the core reason for the majority decision. The second relates to the perception created by the outcome of the case with regard to the protection of the international rule of law.
2. The legal core of the controversial judgment
It must be recalled that the majority’s decision relates to Bemba’s appeal against his conviction by the Trial Chamber. Article 81(1)(b) of the Rome Statute lists four grounds on which a convicted person may appeal against the judgment of the Trial Chamber, namely, procedural error, error of fact, error of law, and any other ground that affects the fairness or reliability of the proceeding or decision. Bemba himself raised six grounds of appeal relating to these grand categories (see here at para. 29). However, all of them were not examined. The Appeals Chamber used its discretion to select only those grounds that were deemed to be determinative of the outcome of the appeal. Overall, the majority decision creates three core points of controversy, namely, the Appeals Chamber’s recalibration of the standard of review, the framing of the presentation of charges against the accused person, and the assessment of the doctrine of command responsibility in respect of the commander’s failure to take all necessary and reasonable measures within his power to prevent or repress the crimes committed or to submit the matter to the competent authorities for investigation and prosecution.
2.1. The recalibration of the standard of review for factual errors
The standard of review is a procedural mechanism that limits the power of the Appeals Chamber when examining the decision that was rendered at the first instance because an appeal should not lead to a new trial. As such, the Appeals Chamber must confine itself to the assessment of those grounds of appeal raised by the appellant, be satisfied that the first judge has committed an error and determine the negative impact of such an error on the impugned decision. Generally, there are different types of standards of review depending on each ground of appeal. In the Bemba case, the most controversial one relates to the assessment of errors of fact on appeal. The Appeal Chamber has recalibrated the standard of review that has so far been applied in all of the ICC’s judgments and by other international criminal tribunals. As restated in the judgment in the Lubanga case, this so-called traditional standard of review requires the Appeal Chamber not to interfere with the factual findings of the first judge, except if it cannot discern how the trier of fact could have been satisfied beyond reasonable doubt from the evidence before it (see here, paras. 21 and 27). Put it differently, the Appeals Chamber’s role is not to assess whether it could come to a different conclusion from that of the first judge. Rather, its role is to ascertain whether the latter could have reasonably reached its conclusion. As a consequence, the traditional standard of review pays a margin of deference to the factual findings of the trial court. This limitation is necessary as the Appeals Chamber is not in a position to make a de novoassessment of the case because of its limited access to the facts and exposure to the evidence. In acquitting Bemba, the Appeals Chamber held that it had to interfere with the factual findings of the first judge when the failure to do so may occasion a miscarriage of justice (see here, para. 40). This approach apparently aims to protect the right of the accused to a fair trial, the interests of justice and the traditional standard of proof (beyond reasonable doubt). As a consequence, the Appeals Chamber gave itself the power to ‘overturn’ the factual findings of the trial court where the accuracy of the latter’s findings is open to reasonable doubt (see here, paras. 45-46).
In applying this standard, the Appeals Chamber overturned the Trial Chamber’s finding that Bemba failed to take all necessary and reasonable measures to prevent and repress the commission of crimes within his material ability (see here, para. 731). It found that the Trial Chamber’s conclusion was indeed unreasonable because it was tainted by serious errors, including ‘an unreasonable assessment of whether Mr. Bemba failed to take all necessary and reasonable measures in the circumstances existing at the time’ (see here, paras. 166 and 193). This unreasonable assessment resulted in a list of seven errors committed by the Trial Chamber and identified in the majority judgment (ibid, para. 189). The Appeals Chamber’s finding includes the error of failing to properly appreciate the limitations that Bemba would have faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country and the error in considering that the motivations that it attributed to the accused were indicative of a lack of genuineness in adopting measures to prevent and repress the commission of crimes.
The dissenting judges opined that the Appeals Chamber’s departure from the traditional standard of review was at odds with the predictability of the law. This may create legal uncertainty if the ICC would not follow its previous case law but change lightly the interpretation of the law without reasons (see here, para.5). They also posit that the power to overturn the findings of the Trial Chamber would pose the risk of inaccuracy in view of the Appeals Chamber’s aforementioned limitations compared to the Trial Chamber (ibid, para. 7).
Further, this approach is at odds with Article 83(2) of the Rome Statute, which requires that, in order to overturn a conviction, an error must materially affect the decision of the first judge (ibid, para. 11). Therefore, the dissenters found that the conclusion of the Appeals Chamber regarding the measures taken by Bemba was flawed, erroneous and even tainted by subjectivity (ibid, paras. 44-48).
In my view, this opinion is partly correct, particularly if we consider that the Appeals Chamber used its identification of errors committed by the Trial Chamber to conclude that Bemba could not be held criminally liable under the doctrine of command responsibility (see here, para. 194). The fact that the Trial Chamber could not reach the same conclusion as to the measures taken by Bemba if it had not committed those errors (ibid, para. 193) is insufficient to uphold the finding of the Appeals Chamber without demonstrating the unreasonableness of such a conclusion. In other words, the errors themselves cannot render a conclusion unreasonable, unless the Appeals Chamber substitutes its own conclusion to that of the first judge, as it seems to have done (ibid, para. 198). This holds particularly true because different legal conclusions are always a possibility and the Rome Statute itself permits the adoption of judgments by a majority vote.
However, there are reasons for the recalibration of the standard of review as mentioned above. The Appeals Chamber also considered that the margin of deference to the factual findings of the Trial Chamber must be approached with extreme caution because the Rome Statute does not provide for the traditional standard of review (ibid, paras. 38 and 40) and the ICC is not obliged to follow and apply its previous decisions. Article 21(2) of the Rome Statute dealing with applicable law only states that it “may” do so. This is not a common law legal system. In any event, if the recalibration of the standard of review can help to better protect human rights, it can be supported inasmuch as human rights constitute the source of sources of applicable law for the ICC pursuant to Article 21(3) of the Rome Statute.
2.2. The creation of unnecessary constraints of precision of the charges
Another finding that supported Bemba’s acquittal is that his conviction exceeded the charges confirmed by the Pre-Trial Chamber. In this respect, four observations can be made. First, Article 74(2) of the Rome Statute provides that the Trial Chamber’s decision ‘shall not exceed the facts and circumstances described in the charges and any amendments to the charges’. Second, the document containing the charges must be precise. According to Article 52(b) of the Regulations of the Court, it shall comprise ‘a statement of the facts, including the time and place of the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial, including relevant facts for the exercise of jurisdiction by the Court’. This led the Appeals Chamber to hold that charges presented in broad formulation are insufficient to bring the accused person to trial in terms of Article 74(2) of the Rome Statute (see here, paras. 107 and 110). Third, additional criminal acts bought by the Prosecutor after the confirmation of charges and the start of the trial cannot be said to be part of the facts and circumstances described in the charges (ibid, para. 115). On this basis, the Appeals Chamber identified a number of criminal acts (murder, rape and pillage), which could not be part of Bemba conviction because they exceeded the original charges (ibid, para. 116). Such acts could be relied on, but only for the purpose of establishing the contextual elements of the ICC crimes (ibid, para. 117). Fourth, the Appeals Chamber found that Bemba was finally convicted for a limited number of criminal acts, namely, one murder, the rape of 20 persons and five acts of pillaging (ibid, para. 119). It is only in relation to these acts, established beyond reasonable doubt, that the measures taken by Bemba could be assessed, including in respect of their proportionality to the crimes committed and the knowledge of the facts (ibid, paras. 32, 168 and 183).
It follows that this approach creates unnecessary constraints of precision that the Prosecution and the Pre-Trial Chamber must now comply with at a preliminary stage of the proceedings. Of course, it is a bit surprising that the work of the Pre-Trial Chamber is censured at the final stage of the case on appeal against the conviction. Seemingly, nobody thought it necessary to appeal against the decision on the conformation of charges when it was handed down in June 2009.
For the judges who dissented, the Appeals Chamber also misinterpreted the legal framework of the ICC. They posit that to frame the charges in broad terms is not prohibited by Article 74(2) of the Rome Statute for three main reasons (see here, paras. 19-39). First, this leaves a margin of discretion to the Prosecutor who bears the responsibility to bring charges against the accused subject to confirmation. Second, the role of the Pre-Trial Chamber is not to confirm the specific criminal acts but to ‘determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimescharged’ (Article 61(7) of the Rome Statute). Third, the broad formulation of charges is reasonable in relation to mass atrocities and mode of liability such as the doctrine of command responsibility whereby attention to each specific individual criminal acts is not necessary at the stage of confirmation of charges. Therefore, the Prosecutor may bring additional criminal acts against the accused provided that the latter is notified in advance for the purpose of his defense and the said acts fall within the temporal, geographical and other factual parameters of the scope of charges as confirmed by the Pre-Trial Chamber.
I find this opinion convincing. Simply because the degree of precision required by the Appeals Chamber does not stem from the provisions it relied upon. Further, the majority decision tends to transform the function of the Pre-Trial Chamber, which may in future be forced to hold a sort of mini-trial on the merits to confirm the charges. Yet, this is not the stage where the substance of the matter is to be discussed.
Finally, I do not believe that the broad formulation of charges may affect the knowledge requirement of the crimes for which the accused is convicted under the doctrine of command responsibility. This is a matter of proof before the Trial Chamber.
3. The perception of the judgment in relation to the rule of law
The acquittal of Bemba is also perceived as controversial as it relates to the international rule of law. First, one may argue that the decision demonstrates that the ICC is not only victim-orientated. The interests of the accused also matter, including the principle of presumption of innocence, the right to be declared responsible beyond reasonable doubt, the respect for the burden of proof laying on the prosecution, the right of defense, due process and fair trial rights.
Second, the Bemba case seems to have ended in the same way as it began when he was arrested while in exile in Brussels in 2008. His supporters believed that his prosecution was not genuine but rather the result of behind the scenes politics at the ICC. For them, Bemba’s prosecution was aimed at silencing their champion after he had lost the 2006 presidential elections in DRC and as a response to his attempt at mounting a military challenge – against the will of the international community – towards President-elect, Joseph Kabila, in 2007. This perception of political influence was reinforced by the fact that prior to the judgment of the Appeals Chamber, the former US Under-Secretary for African Affairs, Herman Cohen, wrote to the ICC to request Bemba’s release, arguing that his presence was needed in DRC ahead of the presidential elections scheduled for December 2018 as President Joseph Kabila and his political family were trying to illegally cling to power, including through fraudulent elections. Bemba could arguably both appease the political strife and increase the prospects for democracy in DRC.
Two issues remain for discussion. First, the rights of victims insofar as Bemba’s acquittal does not imply that the crimes in question were not committed, nor that no other perpetrators can be identified and brought to justice. In her aforementioned declaration in reaction to the majority decision, the Prosecutor took note of, and welcomed the decision by the Board of Directors of the Trust Fund for Victims ‘to accelerate the launch of its assistance mandate programme in CAR, which will take into consideration the harms suffered by victims in the Bemba case as well as harms suffered from additional sexual and gender-based violence arising out of the situation’. Another possibility for victims is to get justice before the Special Criminal Court for the CAR, created in June 2015, which is about to start its activities. This Court may try other alleged perpetrators of some of the crimes of which Bemba was accused inasmuch as its temporal jurisdiction includes crimes committed from 1 January 2003 onwards.
Second, the acquittal judgment has the effect of transforming Bemba into another potential victim. Not a victim in the traditional sense, but a victim due to ten years of detention only to be acquitted. What would be an appropriate remedy for the prejudice he has suffered from this very lengthy detention? Bemba’s former lawyer, Aimé Kilolo, has already invoked the issue in the media. It is not a new issue, at least with regard to the case law of the International Criminal Tribunal for Rwanda (ICTR) in the Rwamakuba case. The possibility of compensation to an arrested or a convicted person is also provided for in Article 85 of the Rome Statute. The presumed victim must show that he was unlawfully arrested or detained, or that a grave and manifest miscarriage of justice was committed. It remains to be seen if Bemba will decide to initiate such a case against the ICC.
Bemba’s acquittal for the reasons described above has led to his release by the Trial Chamber. This post has shown that the decision is controversial in the way the Appeal Chamber interpreted and applied the law, and in regard to the perception one may have concerning the protection of the international rule of law. But Bemba continues to face charges for offences against the administration of justice, which is at the stage of the determination of the sentence against him on appeal after being finally convicted in March 2018 (see here, para. 1631).
My final view is that such an acquittal by the Appeals Chamber was unwise compared to the discretion it has under Article 83(2) of the Rome Statute. This provision states that the Appeals Chamber may reverse or amend the impugned decision, order a new trial, remand a factual issue to the first judge or call the evidence for the purpose of determining the issue in appeal. By applying the standard of review as it did, the central question remained unsolved as to the necessary and reasonable character of the measures that Bemba took as a commander to respond to the crimes committed by his troops in CAR. Because the majority decision is essentially predicated on the conclusion that the Trial Chamber made an unreasonable assessment of these measures – which does not mean that such measures were in fact necessary, reasonable and sufficient per se – the better course of action would have been to remand the case to the first judge for another determination, with a clear order to take into account its findings on appeal. Having failed to do that, it becomes very hard to discern the majority decision coming from the identification of errors committed by the Trial Chamber to the conclusion that Bemba could not be held criminally liable under the doctrine of command responsibility.
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