{"id":253854,"date":"2018-06-13T09:28:15","date_gmt":"2018-06-13T07:28:15","guid":{"rendered":"https:\/\/www.npwj.org\/?p=253854"},"modified":"2024-01-18T09:33:39","modified_gmt":"2024-01-18T08:33:39","slug":"icc-appeals-chamber-overturns-bemba-conviction-implications-for-international-justice-brussels-13-june-2018","status":"publish","type":"post","link":"https:\/\/www.npwj.org\/it\/press-release\/icc-appeals-chamber-overturns-bemba-conviction-implications-for-international-justice-brussels-13-june-2018\/","title":{"rendered":"ICC Appeals Chamber Overturns Bemba Conviction: Implications for international justice Brussels, 13 June 2018"},"content":{"rendered":"

Alison Smith, 13 June 2018<\/span><\/h1>\n
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On 21 June 2016, Jean-Pierre Bemba, President of the\u00a0Mouvement de lib\u00e9ration du Congo\u00a0(MLC) and Commander in Chief of its Military Branch, and former Vice-President of the DRC, had been convicted by the International Criminal Court Trial Chamber III for sexual and gender-based crimes committed by MLC troops during the 2002-2003 CAR Operation on the basis of command responsibility. Just under two years later, the ICC Appeals Chamber held by a 3 to 2 majority that the Trial Chamber had erred when it found that Mr Bemba had failed to take all necessary and reasonable measures within his power to prevent or repress those crimes, or to submit the matter to the competent authorities for investigation and prosecution.<\/p>\n

The Appeals Chamber therefore overturned Mr Bemba\u2019s conviction, paving the way for Mr\u00a0Bemba\u2019s interim release yesterday, pending sentencing for his conviction for interfering with witnesses.<\/p>\n

\u201cThe Bemba Appeals Decision is surprising on many levels,\u201d said Alison Smith, Director of International Justice at No Peace Without Justice, \u201cprimarily because it denies redress to the victims of crimes committed by the MLC troops. Mr Bemba was the only person indicted by the ICC, despite the large-scale nature of the campaign of murder, rape and pillaging that was committed by MLC forces during that peak of criminality in 2002-2003. The Appeals Chamber did not refute that massive crimes were committed, and the finding remains that they were committed beyond reasonable doubt but who is going to provide justice and redress for the thousands of victims?\u201d<\/p>\n

Since the conviction in March 2016, the Court had been undertaking proceedings to determine how reparations would be made in this case. However, under article 75 of the ICC\u2019s founding Statute, a reparations order can only be made against a convicted person. \u201cNo conviction, no reparations\u201d, Ms Smith continued, \u201ceven if the ICC Trust Fund for Victims can still do useful and important work in CAR. But the Court in general will have a lot of work to do to explain last Friday\u2019s decision to the more than 5,000 victims who participated in Mr Bemba\u2019s case. And the CAR authorities are really going to have to step up their game with the Special Criminal Court, which now seems to be the only possible avenue through which victims can pursue justice.\u201d<\/p>\n

\u201cAside from the effect on this particular case, we found the Bemba Decision to be surprising on another level, namely that the ICC seems confused about what role should be played by which Chamber\u201d, said Ms Smith. \u201cThe Bemba Appeals majority seems to seek to change the standard of review by the Appeals Chamber.\u201d In the earlier Lubanga Appeals Decision, the Court held that the Appeals Chamber should only interfere with findings of fact by the Trial Chamber if \u2018it cannot discern how the Chamber\u2019s conclusion could reasonably have been reached by the evidence before it\u2019. \u00a0\u201cNow, however, it seems the Appeals Chamber can ask itself whether factual findings reached by the Trial Chamber might be \u2018called into doubt\u2019 and, if so, it can decide that those factual findings should be thrown out. In effect, the Appeals Chamber seems to be substituting its own judgement for that of the Trial Chamber\u2019s, not just on the law, but also on the facts \u2013 without having heard the entirety of the evidence and without having seen a single witness. According to well established precedent, such issues of fact, if they arise, would be referred back to the Trial Chamber. So we have to ask: who is the trier of fact at the ICC, and if it is the Appeals Chamber, what does that do to the right of appeal?\u201d<\/p>\n

The final straw for Mr Bemba\u2019s conviction was the majority\u2019s new reading of the principle of command responsibility. The Appeals Chamber majority held that the Trial Chamber made a number of factual errors in assessing whether Mr Bemba took the \u201creasonable and necessary\u201d measures required to prevent or punish the crimes being committed by troops under his command, overturning their finding that he had failed to do so. \u201cThe Appeals Chamber seems to have found that the motivations for the measures that were eventually taken, namely to deflect criticism, rather than to prevent and publish criminal conduct, were not so important. To make matters worse, it also seems to imply, without reference to any judicial precedent or legal authority, that as a remote Commander-in-Chief, with an armed group operating in a foreign country, Mr\u00a0Bemba should somehow be held to a lower standard of duty than if he had been on the ground. We are deeply concerned by what this majority decision might mean for the fundamental principle of command responsibility and its application in the future. \u00a0We hope that in the future, this will be seen as a glitch in the system and that previous established precedent, as well as the dissenting opinions, will form the basis of future jurisprudence.\u201d<\/p>\n

#AsktheCourt<\/a>\u00a0Why did the judges decide to acquit Mr\u00a0#Bemba<\/a>? Find out the answer in the Q&A here\u00a0https:\/\/www.icc-cpi.int\/itemsDocuments\/180608-bemba-qa_Eng.pdf\u00a0\u2026<\/a>\u00a0and watch:\u00a0https:\/\/youtu.be\/DoqXAcsi_c8<\/a><\/p>\n

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