The Prosecutor v. Jean-Pierre Bemba Gombo

Court	International Criminal Court (Trial Chamber III), The Netherlands
Case number	ICC-01/05-01/08
Decision title	The Prosecutor v. Jean-Pierre Bemba Gombo
Decision date	21 March 2016
Parties	The Office of the Prosecutor: Ms. Fatou Bensouda, Mr. Jean-Jacques Badibanga. Counsel for the Defence: Mr. Peter Haynes, Ms. Kate Gibson, Ms. Melinda Taylor, representing Mr. Jean-Pierre Bemba Gombo. Legal Representatives of the Victims: Ms. Marie-Edith Douzima Lawson.
Categories	Crimes against humanity, War crimes
Keywords	command responsibility, crimes against humanity, rape, war crimes
Links	The Prosecutor v. Jean-Pierre Bemba Gombo
Other countries involved	Belgium Central African Republic Congo Portugal

Summary

The Bemba case represents a significant milestone in international law, particularly concerning the doctrine of command responsibility. Mr. Jean-Pierre Bemba, a former Vice-President of the Democratic Republic of Congo, was charged with two counts of crimes against humanity (murder and rape) and three counts of war crimes (murder, rape, and pillaging). These charges were linked to the actions of the Movement for the Liberation of Congo (MLC), a militia group under his command, in the Central African Republic (CAR) between 2002 and 2003.

Mr. Bemba's trial was groundbreaking in several aspects. It was one of the first major ICC trials focusing on sexual violence as an international crime, setting a precedent for how such crimes are prosecuted globally. The prosecution argued that Mr. Bemba had effective command and control over the MLC troops and failed to take necessary and reasonable measures to prevent or repress the commission of these crimes, nor did he submit the matter to the competent authorities for investigation and prosecution.

The defense contended that Mr. Bemba had limited means to control his forces once they were deployed in CAR and that he was not directly responsible for the atrocities committed. They argued for his inability to exercise control over the troops due to communication challenges and logistical constraints.

The judgment and the legal reasoning behind it delved into the nuances of command responsibility, assessing the extent of a military leader's liability for the actions of their subordinates. The trial also addressed complex issues of jurisdiction, admissibility, and the participation of victims in the proceedings, making it a landmark international criminal law case.

This case was closely watched by international legal experts and human rights advocates, as it had significant implications for how commanders at all levels are held accountable for war crimes and crimes against humanity. The verdict was seen as a test of the ICC's ability to bring high-ranking officials to justice and a statement on the international community's commitment to addressing grave human rights violations.

Procedural history

Referral and Investigations (2004 – 2007):

December 2004: The Government of CAR referred to the Court the crimes committed in its territory after 1 July 2002.
June 2005: The Government of CAR provided the Prosecutor with documents and judicial proceedings in relation to crimes that committed in its territory in 2002-2003.

May 2007: The Prosecutor decided the launch of an investigation.

Arrest and Pre-Trial Proceedings (2008-2009):

May 2008:An arrest warrant was issued and Mr. Bemba was subsequently arrested in Belgium.

June 2008: A new arrest warrant was issued after additional information was provided by the Prosecution.

July 2008: Mr. Bemba was surrendered to the Court and made his first appearance.

October 2008 - March 2009: The Prosecution filed charges against Mr. Bemba, including crimes against humanity and war crimes. After a confirmation of charges hearing, the Pre-Trial Chamber asked the Prosecution to consider amending the charges to include a different mode of criminal liability.

Amendment of Charges and Confirmation Decision (2009):

March - June 2009: The Prosecution amended the charges, presenting Mr. Bemba as a co-perpetrator or, alternatively, as a military commander responsible for crimes against humanity and war crimes.

June 2009: The Pre-Trial Chamber confirmed charges against Mr. Bemba based on command responsibility.

Trial Preparations and Commencement (2009-2010):

September 2009 - October 2010: The Chamber was constituted, and the Prosecution filed amended documents and summaries of evidence. Defence objections were addressed, and the Prosecution filed the Corrected Revised Second Amended DCC.

November 2010: The trial commenced with opening statements, and the Prosecution called its first witness.

Regulation 55 Notification and Further Proceedings (2012-2013):

September 2012 - February 2013: The Chamber notified the parties of the possibility of considering an alternate form of liability under Article 28(a)(i). The proceedings were temporarily suspended for the Defence to prepare its case.

Completion of Evidence Presentation and Closing Briefs (2013-2014):

April 2014 - November 2014: The presentation of evidence was declared closed. Closing briefs were filed by the Prosecution, Legal Representative, and Defence. The Prosecution and Defence made their closing oral statements.

Overall Conduct of the Trial:

The Chamber heard a total of 77 witnesses and admitted 733 items of evidence. Throughout the proceedings, 1,219 written decisions and 277 oral decisions/orders were issued.

Related developments

On 8 June 2018, the Appeals Chamber acquitted Mr. Bemba, overturning the Trial Chamber's decision. The Appeals Chamber found that Bemba had been improperly convicted for acts outside the scope of the charges and that the Trial Chamber erred in its assessment of Bemba's command responsibility, thus acquitting him of charges of war crimes and crimes against humanity.

Legally relevant facts

Mr. Jean-Pierre Bemba was the head of the Movement for the Liberation of Congo (MLC) and Commander in Chief of its military wing, the Armée de Liberation du Congo ( ALC). The judgement details the MLC's involvement in military operations in the Central African Republic (CAR) from 2002-2003. Key points (pp. 170-185) include:

Mr. Bemba's control over the MLC: Mr. Bemba had ultimate authority and control over the MLC’s military operations, strategy, logistics, and discipline. He maintained direct communication with MLC commanders in the CAR and visited the region several times.

Use of communication equipment: Radios, satellite phones, and mobile phones enabled direct communication between Mr. Bemba and MLC commanders, facilitating regular updates on operations.

Allegations of crimes by MLC soldiers: There were widespread reports of theft, rape, killing of civilians, and other crimes committed by MLC soldiers in the CAR, as detailed in intelligence reports and media coverage.

Response to allegations: Mr. Bemba established inquiries like the Mondonga Inquiry and the Zongo Commission to investigate allegations of crimes, but these were deemed limited and inadequate. The document argues that these measures were motivated more by a desire to protect the MLC’s image rather than to genuinely address the crimes.

Mr. Bemba's knowledge and inadequacy of measures: The judgement emphasises Mr. Bemba's awareness of the crimes and his capacity to take effective measures, which he failed to implement adequately.

Failure to prevent or repress crimes: The judgment concludes that Mr. Bemba did not take necessary measures to prevent or repress the commission of crimes by his subordinates, nor did he submit the matter for investigation and prosecution to competent authorities.

Potential preventive measures not taken: The document outlines several measures Mr. Bemba could have implemented, including proper training in international humanitarian law, genuine investigations, clear orders to prevent crimes, altering troop deployment, and cooperating with authorities for investigation.

Consequences of actions: Mr. Bemba's actions and inactions contributed to the continuation and escalation of crimes committed by MLC forces in the CAR.

Core legal questions

Command Responsibility:

Did Mr. Bemba have effective command and control over the MLC troops deployed in the Central African Republic?

Did Mr. Bemba take all necessary and reasonable measures to prevent or punish crimes committed by MLC troops under his command?

Can a commander be held criminally responsible for the acts of his subordinates even if he did not have actual knowledge of the crimes being committed?

Crimes Against Humanity and War Crimes:

Did the MLC troops commit murder, rape, and pillaging in the CAR?

Specific legal rules and provisions

Murder as a Crime Against Humanity (Article 7(1)(A) of the Rome Statute)

Murder as a War Crime (Article 8(2)(C)(I) of the Rome Statute)

Rape as a Crime Against Humanity and a War Crime (Articles 7(1)(G) and 8(2)(E)(Vi) of the Rome Statute)

Pillaging as a War Crime (Article 8(2)(E)(V) of the Rome Statute)

Contextual Elements of War Crimes (Article 8 of the Rome Statute)

Contextual Elements of Crimes Against Humanity (Article 7 of the Rome Statute)

Contextual Elements of Crimes Against Humanity (Article 7 of the Rome Statute)

Command Responsibility (Article 28 of the Rome Statute)

Court's holding and analysis

Court's holding:

1. Guilty verdict: Mr. Bemba was found guilty of:

- Murder as a crime against humanity and as a war crime.

- Rape as a crime against humanity and as a war crime.

- Pillaging as a war crime.

2. Sentencing: On 21 June 2016, Trial Chamber III sentenced Mr. Bemba to 18 years of imprisonment.

Court's analysis:

1. Command responsibility: A crucial aspect of the case was the application of the doctrine of command responsibility. Bemba, as a military commander, was held responsible for crimes committed by his troops. The Trial Chamber found that he had effective command and control over his forces and was aware of their criminal behavior but failed to take necessary and reasonable measures to prevent or repress the commission of crimes.

2. Nature of crimes: The Trial Chamber emphasised the severity of the crimes committed by Mr. Bemba's forces, highlighting the systematic and widespread instances of murder and rape. These acts were not isolated incidents but were part of a modus operandi established by the MLC.

3. Evidence and witness testimonies: The judgment was based on a comprehensive evaluation of evidence, including witness testimonies, which provided a detailed account of the atrocities committed. The testimonies were crucial in establishing the pattern of crimes and Mr. Bemba's knowledge of these acts.

4. Bemba's knowledge and inaction: The Court found that Mr. Bemba was aware, or at least should have been aware, of the crimes being committed by his forces. Despite this knowledge, he failed to take any effective action to prevent or punish the perpetrators, constituting a significant failure of command responsibility.

5. Legal precedents and international law: The Bemba case set important precedents in international criminal law, particularly regarding the responsibility of military commanders for crimes committed by their subordinates. The judgment reinforced the principle that commanders cannot escape liability simply by being physically distant from the location of the crimes.

6. Impact and significance: The case was significant for its detailed examination of the concept of command responsibility and for reinforcing the accountability of military leaders in international law. It highlighted the importance of leadership responsibility in preventing war crimes and crimes against humanity.

Further analysis

Nora Karsten, ‘Distinguishing Military and Non-military Superiors: Reflections on the Bemba Case at the ICC’, Journal of International Criminal Justice, vol. 7(5), 2009, pp. 983–1004.

Janine Natalya Clark, ‘The First Rape Conviction at the ICC: An Analysis of the Bemba Judgment’, Journal of International Criminal Justice, vol. 14(3), 2016, pp. 667–687.

Marie-Alice D’Aoust, ‘Sexual and Gender-based Violence in International Criminal Law: A Feminist Assessment of the Bemba Case’, International Criminal Law Review, vol. 17(1),2017, pp. 208-221.

Instruments cited

Rome Statute of the International Criminal Court

Rules of Procedure and Evidence of the International Criminal Court

Related cases

Rape

ICTY: The Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, Judgment, 12 June 2002, IT-96-23 & IT-96-23/1-A (para. 436).

ICC: The Prosecutor v. Mathieu Ngudjolo, Judgment Pursuant to Article 74 of the Statute, 18 December 2012, ICC-01/04-02/12. (para. 107).

ICTR: The Prosecutor v. Laurent Semanza, Judgment, 15 May 2003, ICTR-97-20-T (paras. 476, 586).

ICTR: The Prosecutor v. Anto Furundžija, Judgment, 10 December, T-95-17/1-T (para. 165).

ICTR: The Prosecutor v. Jean-Paul Akayesu, Judgment and Sentence, 2 December 1998, ICTR-96-4-T (para. 685).

Murder

ICTR: The Prosecutor v. IldephonseHategekimana,6 December 2010, ICTR-00-55B-T (para. 699).

ICTR: The Prosecutor v. Ferdinand Mahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Judgment and Sentence, 3 December 2003, ICTR-99-52-T (para. 1085).

Pillage

ICTR: The Prosecutor v. Ephrem Setako,Judgment and Sentence, 25 February 2010, ICTR-04-81-T (para. 492).

SCSL: The Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Judgment, 16 December 2011, ICC-01/04-01/10, (para. 750).

Command Responsibility

ICTR: Prosecutor v. Bagilishema, Judgment, 3 July 2002, ICTR-95-1A-A, (para. 37).

ICTR: Prosecutor v. Clement Kayishema, Obed Ruzindana, Judgement, 21 May 1999, ICTR-95-1-T (para. 212).

Additional materials

W Wakabi, ‘Reactions to Bemba’s Conviction’, International Justice Monitor, 31 March 2016.

A Matta, ‘Jean-Pierre Bemba Decision: Landmark Judgment at the ICC’,Hague Institute For Global Justice, 22 March 2016.

Open Society Justice Initiative, ‘The Trial Of Jean-Pierre Bemba At The ICC: Judgment: Executive Summary’, OSJI, Match 2016.

O Bowcott, ‘Congo politician guilty in first ICC trial to focus on rape as a war crime’, The Guardian, 21 March 2016.

Coalition for the International Criminal Court,‘Bemba verdict: First ICC command responsibility trial – all you need to know’,CICC, 18 March 2016.

M. Vianney-Liaud and C. Pineau, ‘Assessing Victim’s Contribution to the Determination of the Truth in the Bemba Case’,12, Eyes on the ICC,2016-2017, pp.51-72.

F. Mukwiza Ndahinda, ‘The Bemba – Banyamulenge Case before the ICC: From Individual to Collective Criminal Responsibility’, International Journal of Transitional Justice, Vol. 7, Issue 3, November 2013, pp. 476-496.

K. Ambos, ‘Critical Issues in the Bemba Confirmation Decision’,Leiden Journal of International Law, Vol. 22, Issue 4, December 2009, pp.715-726.