8 juin 2018

ACTU : From the heaviest sentence to the acquittal: ICC Appeals Chamber acquits former Congolese Vice-President Jean-Pierre Bemba from the charges of war crimes and crimes against humanity

Catherine MAIA

On 8 June 2018, the Appeals Chamber of the International Criminal Court (ICC) decided, by majority, to acquit Jean-Pierre Bemba from the charges of war crimes and crimes against humanity. However, Jean-Pierre Bemba will remain in detention on account of another case in which he has been convicted of offences against the administration of justice, pending a decision of Trial Chamber VII in that case.

The Appeals Chamber's Judgment reversed Trial Chamber III's decision of 21 March 2016, which had concluded that, as a person effectively acting as a military commander and with effective control over the Mouvement de libération du Congo (MLC) troops, Jean-Pierre 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 neighbouring Central African Republic (CAR) from on or about 26 October 2002 to 15 March 2003. At the time, he had sent his militia - a rebel force then turned into a political organization - to quash a coup against the then Central African president, Ange-Felix Patasse.

According to article 28 on the "Responsibility of commanders and other superiors", "In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That 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".

Having considered all written submissions of the parties and participants and the oral observations made during the appeal hearings held in January 2018, the Appeals Chamber found, by majority, that Trial Chamber III had erred on two important issues:
1/ It had erroneously convicted Jean-Pierre Bemba for specific criminal acts that were outside the scope of the charges as confirmed; and 
2/ In its assessment of whether Jean-Pierre Bemba took all necessary and reasonable measures to prevent, repress or punish the commission by his subordinates of the other crimes within the scope of the case, the Trial Chamber made serious errors. More specifically, the Trial Chamber erred in its evaluation of Jean-Pierre Bemba's motivation and the measures that he could have taken in light of the limitations he faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country; in whether he made efforts to refer the allegations of crimes to the CAR's authorities; and in whether he intentionally limited the mandate of commissions and inquiries that he established. Furthermore, in the view of the Appeals Chamber majority, there was an apparent discrepancy between the limited number of crimes within the case's scope for which Jean-Pierre Bemba was held responsible and the Trial Chamber's assessment of which measures Jean-Pierre Bemba should have taken.

On that basis, the Appeals Chamber concluded, by majority, that Jean-Pierre Bemba's conviction must be reversed, that Jean-Pierre Bemba cannot be held criminally liable under article 28 of the ICC Rome Statute for the crimes within the scope of the case that were committed by MLC troops during the CAR operation and that he must be acquitted thereof.

Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański appended a joint dissenting opinion in which they explained why they disagreed with the majority's decision to acquit Jean-Pierre Bemba. Judge Chile Eboe-Osuji, as well as Judge Van den Wyngaert and Judge Howard Morrison appended separate opinions.

Judge Monageng and Judge Hofmański found that all criminal acts for which Jean-Pierre Bemba was convicted fell within the scope of the case that the Prosecutor had brought against him. They also disagreed with the majority that the Trial Chamber erred when it found that Jean-Pierre Bemba had failed to take all necessary and reasonable measures to prevent or repress MLC crimes; in their view, the majority reached this conclusion based on an incorrect standard of appellate review. The judges in the minority would have confirmed Jean-Pierre Bemba's conviction.

Following this Judgment, and while there is no reason to continue Jean-Pierre Bemba's detention on the basis of the present case, it is for Trial Chamber VII to decide, shortly, whether Mr Bemba's continued detention is warranted in relation to his conviction for offences against the administration of justice.

The Appeals Chamber also dismissed as moot the appeals that Jean-Pierre Bemba and the Prosecutor had brought against the sentence Trial Chamber III had imposed.

In 2016, Mr. Bemba was originally sentenced to 18 years in prison, after the Chamber found him “guilty beyond reasonable doubt” as a military commander responsible for two counts of crimes against humanity (murder and rape) and three counts of war crimes (murder, rape, and pillaging) committed in the Central African Republic between October 2002 and March 2003.

In the space of two years, we have gone from the heaviest sentence pronounced at first instance to the acquittal, which calls into question the ability of international justice to prove the responsibility of military commanders.

Source : ICC

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