4.4 THE CENTRAL AFRICAN REPUBLIC CASE
4.4.1 Jean-Pierre Bemba Case
4.4.1.3 The Prosecutor’s appeal against the Pre-Trial Chamber’s decision
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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
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Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.
Leave to appeal was granted on two grounds. The first was that the Pre-Trial Chamber did not have authority to refuse to confirm the charge of torture as a crime against humanity and the charge of outrages against personal dignity as a war crime. This was because these two charges were ‘cumulative of rape charges’ and, whether these two crimes were ‘either objectively as a matter of law or in particular based on the facts alleged. . ., they were wholly subsumed within rape charges’.934 The Chamber had misapplied the relevant principles relating to each offence, since it failed to analyse whether each offence required ‘a material legal element not contained in the other’.935 In explaining how the elements of rape as a crime against humanity differed from that of torture as a crime against humanity, the prosecution stated that in securing a conviction for rape, it did not need to prove that the victim had to endure ‘a certain quantum of pain or suffering’.936 Also regarding a torture, it did not have to prove that such a victim endured ‘a physical invasion of a sexual nature’. By example, a man who was forced to watch his wife repeatedly raped would not be the victim of rape, but of torture.937 ‘Men, women and children were raped by multiple MLC perpetrators in their homes, raped in front of family members, forced to watch rapes of family members, and raped in public locations.’938 There were also lootings, rapes and murders by MLC troops who punished rebel sympathisers. The prosecutor gave as an example of torture as a crime against humanity a victim who was forced to watch his four daughters and wives raped by MLC soldiers.939 The prosecution recommended that the applicable test which the Court should apply to cumulative crimes, was:
if the victim is the same in both offences and the facts overlap, or whether it should be based on the traditional examination of the provisions, to determine if the crimes contain different and separate elements and protect distinct and separate interests.940
Another argument advanced by the prosecutor was that victims would be denied a fair hearing if
‘the full range of their suffering and victimisation [was not] reflected in the charges’.941 In
934 Prosecutor v Jean-Pierre Bemba Gambo ‘Prosecutions application for leave to appeal the decision pursuant to article 61(7)(a) and (b) on the charges against Jean-Pierre Bemba’ (22 June 2009) ICC-01/05-01/08, para 8.
935 Idem at para 17.
936 Ibid.
937 Ibid
938 Idem at para 34.
939 Ibid.
940 Idem at para 18.
941 Idem at para 23.
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addition, this would exclude certain victims from giving evidence and exclude the seeking of evidence, from victims such as those who were forced to watch their family members raped.942
The prosecutor’s second ground of appeal, related to whether the Pre-Trial Chamber had authority to refuse to confirm charges where the accused was not given sufficient pre- confirmation notice but ‘the Document Containing the Charges, and the In-Depth Analytical Chart gave the accused sufficient notice of the changes and the supporting facts’.943
In responding to the prosecutor’s application for leave to appeal, the Office of Public Counsel for Victims (OPCV) filed its observations to the effect that it was the prosecutor’s discretion and not that of the Trial Chamber to decide what charges are brought against an accused. The OPCV expressed concern inter alia about a situation in which many victims would be denied their right to participate in the trial [and] to express their views and concerns, as ‘the victim status is linked to the charges of the case’.944
The Women’s Initiatives for Gender Justice (WIGJ); an international human rights organisation, was granted leave to submit an amicus curiae observation, regarding the Pre-Trial Chamber’s decision of 15 June 2009 relating to cumulative charging945 to assist the Pre-Trial Chamber in determining the case.946 The WIGJ observed inter alia that the Pre-Trial Chamber had applied the correct standard relating to cumulative charges, that is, the test in the Prosecutor v Delalic case as applied by the ICTY’s Appeals Chamber. It however, observed that the test had been incorrectly applied to ‘at least three categories of the witnesses’ in this case.947 WIGJ observed that Pre-Trial Chamber ‘had applied in a too narrow fashion the cumulative charging test with regard to torture and rape’ to these categories of witnesses. It had also done the same with regard to rape and the outrages upon personal dignity charge.948
The Pre-Trial Chamber II rejected the prosecutor’s application for leave to appeal on 18 September 2009, on the basis that both grounds of appeal did not ‘significantly affect both the
942 Ibid.
943 Idem at para 8.
944 Prosecutor v Jean-Pierre Bemba Gambo ‘Decision in the Prosecutor’s application for leave to appeal the
“Decision pursuant to article 61(7)(a) and (b) of the Rome Statute on the charges of the Prosecutor against Jean- Pierre Bemba”’ (18 September 2009) ICC-01/05-01/08, paras 41 and 42.
945 Prosecutor v Jean-Pierre Bemba Gambo ‘Amicus Curiae Observations of the Women’s Initiatives for Gender Justice pursuant to rule103 of the Rules of Procedure and Evidence’ (31 July 2009) ICC, para 1.
946 Idem para 17.
947 Idem paras 18, 25 and 27.
948 Idem para 28.
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fair and expeditious conduct of the proceedings or the outcome of the trial’.949 Regarding the first ground of appeal, the Pre-Trial Chamber stated that it could not make a decision on the ‘proper interpretation of the constitutive elements of the crimes concerned and the assessment of the evidence of the case’ as these issues were not within the scope of article 82(1)(d) of the Rome Statute.950 In disagreeing with the prosecution that the Pre-Trial Chamber did not have authority to decline to cumulate the charges, the Appeals Chamber held that:
[a]ccording to article 61(3) of the Statute, the Prosecutor is under an obligation to present the charges, but it is incumbent upon the Pre-Trial Chamber to delineate the scope of the trial proceedings by way of its decision pursuant to article 61(7) of the Statute, in which it evaluates the evidence and applies the law. To limit such a decision to a mere formality, barring the Chamber from one of its core functions, would run counter to the Pre-Trial Chamber’s understanding of its statutory role and mandate. The duty of the Prosecutor is to present the facts that he has investigated and to provide his view on their legal characterisation in the document containing the charges. But it is for the judges of the Pre-Trial Chamber to apply the law to those facts as presented by the Prosecutor and give the legal characterisation to those facts951