On June 8, 2018, the Appeals Chamber of the International Criminal Court acquitted Jean-Pierre Bemba of the two counts of war crimes and three counts of crimes against humanity for which he was found guilty of in 2016. Bemba, former vice-president of the Democratic Republic of the Congo, had been convicted due to the role he played in commanding a militia that committed mass murder, rape, and also participated in the pillaging of the Central African Republic between October 2002 and March 2003.
The five-judge panel, of which the majority, headed by Judge Christine Van den Wyngaert and three judges, held that the trial court had “erroneously convicted Bemba for specific criminal acts that were outside the scope of the charges as confirmed.” It was further posited that “the trial chamber erred in its evaluation of 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.”
The original charges Bemba had been convicted of were crimes against humanity (i.e., the crimes of murder and rape), and war crimes (i.e., the crimes of murder, rape, and pillaging). He was thereby sentenced to 18 years in prison. The recent appeal was made against both the sentence and the verdicts of the original trial. While three of the five Appeals Court judges supported overturning the original ruling, the remaining two issued a dissenting judgement upholding the convictions. The outcome is a significant set-back to the ICC Office of the Prosecutor, which invested significant time and resources into Bemba’s case.
The success of Bemba’s appeal represents a massive blow to developing human rights norms and regimes for two reasons. Firstly, from a legal perspective, it sets a precedent for the level of control a commander can be held accountable for, as the original guilty verdict had been the first time a defendant has ever been convicted for crimes committed by others under his command. The ruling will be important to other UN war crimes tribunals, as well as to legal systems more generally, in interpreting the legal definition of the ‘command responsibility’ held by senior figures in charge of troops who commit war crimes and crimes against humanity.
Secondly, Bemba’s original conviction was the first ruling by the ICC that recognized rape as a war crime. Indeed, this ruling was welcomed by the international community because of its far-reaching import in bringing sexual and gender-based violence into the legal paradigm and addressing their widespread and systematic use as a weapon of war. The head of UN Women, Phumzile Mlambo-Ngcuka, praised the landmark conviction as “a clear message that the international community will hold accountable those who fail to exercise their responsibilities as commanders to prevent and punish the use of sexual and gender-based crimes as weapons of war.”
Rupert Skilbeck, the director of Redress, a UK based human rights group, called the judgement a “devastating outcome for the more than five thousand victims who participated in the trial and waited 15 years to see justice done.” He noted the graphic nature of the crimes committed, adding that, “Some victims contracted HIV after being gang-raped… Others were rejected by their families and ostracised by their communities, and many have been left to fend for themselves, without access to basic anti-retroviral drugs, psychological or economic support.” In January, the International Committee of the Red Cross warned that half the population of the Central African Republic were still in dire need of humanitarian aid, while a Human Rights Watch report from October last year stated that soldiers continue to us sexual violence to “terrorise women and children.”
While the ruling will weaken some criticisms of the Court – which is often derided as a neo-colonial tool which targets African nations – and is arguably a victory for legal procedure, it massively undermines the normative implications of the original ruling. Bemba will remain in the custody of the ICC as he has been convicted of witness tampering in October 2016.
The verdict is a disappointing turn in a case defined by its major normative implications. Sexual and gender-based violence have long been neglected in the international legal and normative human rights frameworks, despite their inherently devastating nature and the added role they play in crimes such as genocide. The major suffering of civilians at the hands of the forces under Bemba’s command is not something that the international community can overlook. The high-profile nature of the Bemba case will mean that the ICC Office of the Prosecutor will have to work even harder to successfully prosecute alleged perpetrators of human rights abuses and war crimes, and the international community may have to seek alternative ways to repair the damage to the normative framework caused by the passing of this appeal.
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