4.4 THE CENTRAL AFRICAN REPUBLIC CASE
4.4.1 Jean-Pierre Bemba Case
4.4.1.2 The Confirmation of Charges Hearing
Following the confirmation of charges hearing, held between 12 January and 15 January 2009, the Chamber on 3 March 2009 requested the prosecutor to consider including an article 28 mode of criminal responsibility charge against the accused, which provision refers to a military
904 Situation in The Central African Republic, Decision assigning the situation in The Central African Republic to Pre-Trial Chamber III (19 January 2005) ICC-01/05.
905 Decision on the constitution of Pre-Trial Chambers and on the assignment of the Central African Republic situation (19 March 2009) ICC-Press-01-09. Just over a month later, the Presidency had to re-constitute Pre-Trial Chamber II, following the death of one of its judges. Decision reconstituting Pre-Trial Chamber II (29 April 2009) ICC-Pres-02-09.
906 Prosecutor v Jean-Pierre Bemba Gambo ‘Warrant of arrest for Jean-Pierre Bemba Gambo’ (23 May 2008) ICC- 01/05-01/08. Prosecutor v Jean-Pierre Bemba Gambo ‘Judgment pursuant to article 74 of the Statute’ (21 March 2016) ICC-01/05-01/08, para 5.
907 Idem paras 9 and 17.
908 Prosecutor v Jean-Pierre Bemba Gambo ‘Warrant of arrest for Jean-Pierre Bemba Gambo replacing the warrant of arrest issued on 23 May 2008’ (10 June 2008) ICC-01/05-01/08.
909 Prosecutor v Jean-Pierre Bemba Gambo ‘Decision pursuant to article 61(7)(a) and (b) of the Rome Statute on the charges of the Prosecutor against Jean-Pierre Bemba Gambo’ (15 June 2009) ICC-01/05-01/08, para 4.
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commander or superior’s responsibility.910 The prosecutor accordingly filed an amended Document Containing the Charges on 30 March 2009 with other amended documents,911 adding an article 28 mode of criminal responsibility as an alternative to the primary article 25(3)(a) mode of criminal responsibility.912 The charges contained in the arrest warrant of 10 June 2008 were retained. In its decision on the confirmation hearing given on 15 June 2009, the Pre-Trial Chamber II confirmed charges of Bemba being criminally responsible as a superior under article 28(a) of the Rome Statute, for murder as a crime against humanity and war crime, rape as a crime against humanity and war crime, and pillaging as a war crime.913
Article 28 of the Rome Statute provides:
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.
(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii) The superior 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.
910 Idem paras 12 and 15. Prosecutor v Jean-Pierre Bemba Gambo ‘Judgment pursuant to article 74 of the Statute’
(21 March 2016) ICC-01/05-01/08, para 6.
911 Idem para 17.
912 Prosecutor v Jean-Pierre Bemba Gambo ‘Prosecution’s submission of Amended Document Containing the Charges, amended list of evidence and amended in-depth analysis chart of incriminatory evidence (30 March 2009) ICC-01/05-01/08, paras 9 and 11. The other amended documents filed were an amended list of evidence and an amended related in-depth analysis chart of the evidence. Prosecutor v Jean-Pierre Bemba Gambo ‘Judgment pursuant to article 74 of the Statute’ (21 March 2016) ICC-01/05-01/08, para 7.
913 Prosecutor v Jean-Pierre Bemba Gambo ‘Decision pursuant to article 61(7)(a) and (b) of the Rome Statute on the charges of the Prosecutor against Jean-Pierre Bemba Gambo’ para 444.
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Thus, article 28(a) of the Rome Statute provides for liability of a military commander who either
‘knew’ or ‘should have known’ that his ‘forces were committing or about to commit’ the crimes being charged.914 The Chamber found that there was sufficient evidence to establish that Bemba
‘knew about the occurrence of the crimes’ committed during the period in question.915 As a consequence, the ‘should have known’ requirement of article 28(a) of the Rome Statute was not considered by the Pre-Trial Chamber. The Pre-Trial Chamber declined to confirm the criminal responsibility of the accused under articles 25(3) (a) and 28(b) of the Rome Statute.916
The Chamber declined to confirm the charges of torture as a crime against humanity and war crime, and outrages upon personal dignity as a war crime under article 28(a) of the Rome Statute.917 In the Amended Document Containing the Charges the crimes of torture as a crime against humanity and outrages upon personal dignity, as a war crime; were cumulatively charged by the prosecutor with that of rape. The Chamber rejected this cumulative charging approach.
Applying a restrictive interpretation to these crimes, the Chamber found that the prosecutor’s evidence relating to both crimes exhibited the same conduct as that of rape, and thus concluded that both these crimes were ‘fully subsumed by the count of rape, which was the most appropriate legal characterisation of the conduct presented’.918 The Chamber differentiated between the definition of torture as a crime against humanity and torture as a war crime by stating that ‘the definition of torture as a crime against humanity, unlike the definition of torture as a war crime, does not require the additional element of a specific purpose’.919 In addition, the Chamber stated that ‘the specific material elements of the act of torture, namely severe pain and suffering and control by the perpetrator over the person, are also the inherent specific material elements of the act of rape. However, the act of rape requires the additional specific material element of penetration, which makes it the most appropriate legal characterisation in this particular case’.920
914 Rome Statute, art 28(a).
915 Prosecutor v Jean-Pierre Bemba Gambo ‘Decision pursuant to article 61(7)(a) and (b) of the Rome Statute on the charges of the Prosecutor against Jean-Pierre Bemba Gambo’ para 489.
916 Idem para 344.
917 Ibid.
918 Idem paras 190, 205, 302, 310 and 312.
919 Idem at para 195.
920 Idem at para 204.
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The Chamber also found the term ‘other forms of sexual violence’, which the prosecutor used in characterising the crime of torture as a crime against humanity,921 was not qualified in the Amended Document Containing the Charges by the other acts of torture apart from those of rape he was relying on.922 The Pre-Trial Chamber also stated, that the method by which these acts of torture had been committed was not stated in the Amended Document Containing the Charges; it was only by examining the disclosed evidence that the Pre-Trial Chamber was able to identify the acts and method of commission of torture on which the prosecutor was relying, and this only when the Prosecutor presented ‘at the Hearing some material facts parenthetically’.923 The Chamber pointed out that it was the prosecutor’s duty to provide the Chamber with all the facts which supported the charges, as it would not give credit for such flaws.924 The Chamber concluded that the material facts of ‘torture as a crime against humanity through other acts of torture’ had not been provided in the Amended Document Containing the Charges, nor their method of commission. This resulted in the Chamber declining to confirm this part of the charge relating to torture on the ground that the accused would otherwise be placed at a disadvantage in preparing his case.925 The Chamber also held that the information relating to the outrage upon personal dignity charge was insufficient, as the prosecution had not specified the facts relating to this charge in the Amended Document Containing the Charges.926 It was at the hearing that the factual basis of the prosecutor’s case was unveiled, when he unfolded seven groups of facts, on which he was relying.927
Though the Pre-Trial Chamber declined to confirm the count of torture as a crime against humanity, and outrages upon personal dignity as a war crime, due to the cumulative charging approach used by the prosecution, it recognised that various national courts and international tribunals had applied the cumulative charging approach in certain circumstances.928 The Pre-Trial
921 The count of torture as a crime against humanity was framed as torture ‘through acts of rape or other forms of sexual violence.’ Idem para 197.
922 Idem paras 206 and 207.
923 Idem para 208.
924 Ibid.
925 Idem at para 209.
926 Idem at paras 307 and 309.
927 Idem at para 308.
928 Idem at para 200. An example of one of the cases referred to by the Chamber was the case of Prosecutor v Delalic et al, which was heard by the ICTY’s Appeals Chamber. In the Prosecutor v Delalic et al case the Appeals Chamber in allowing multiple charges held that:
Reasons of fairness to the accused and the consideration that only distinct crimes may justify multiple convictions, lead to the conclusion that multiple criminal convictions entered under different statutory
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Chamber II, however, pointed out the undue burden, which the cumulative charging approach placed on the accused. The Chamber and stated that:
As a matter of fairness and expeditiousness of the proceedings, only distinct crimes may justify a cumulative charging approach and, ultimately, be confirmed as charges. This is only possible if each statutory provision allegedly breached in relation to one and the same conduct requires at least one additional material element not contained in the other.929
The Chamber further pointed out, that the provisions of regulation 55 of the Regulations of the Court, allowed a Trial Chamber to change the legal characterisation of a crime not provided for in the legal framework of the ad hoc tribunals. Due to this power given to the ICC by its judges, the Pre-Trial Chamber II was of the opinion that a cumulative charging approach was not necessary.930
With regard to non-confirmation of the charge of torture as a war crime, the Pre-Trial Chamber held that ‘the prosecutor failed to provide the factual basis in the Amended Document Containing the Charges underpinning the charge of torture as a war crime’.931 Furthermore, the prosecutor’s failure at the hearing to ‘elaborate on the specific intent of alleged MLC soldiers which would have clearly characterised the alleged acts of torture as a war crime’, placed the accused at a disadvantage in preparing his case.932 The Pre-Trial Chamber II reiterated the fact, that the Chamber did not have a duty to correct flaws in the prosecution’s case.933