4.4 THE CENTRAL AFRICAN REPUBLIC CASE
4.4.1 Jean-Pierre Bemba Case
4.4.1.4 The Trial Chamber’s Judgment
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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
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The defence objected to the proposed re-characterisation by the Trial Chamber stating that it
‘would result in manifest unfairness and actual prejudice to the accused’.955 On 13 December 2012, to enable the defence to prepare for a possible re-characterisation and obtain further evidence, the Trial Chamber suspended the proceedings until March 2013.956 The defence however, filed a motion requesting that the Chamber to vacate the temporary suspension of proceedings.957 In lifting the suspension of the proceedings on 6 February 2013, the Trial Chamber noted that the defence’s motion to vacate the proceedings was based on a misconceived allegation that the Trial Chamber had not made a ‘formal decision to amend the charges accordingly or to render a decision that regulation 55 is in fact being relied upon in the proceedings’.958 The Trial Chamber stated that there was no need for a ‘formal decision to amend the charges’ as it could re-characterise the facts ‘on its own motion, “at any time during the trial”’.959 In handing down its judgment on 21 March 2016, the Trial Chamber did not find that the facts warranted a re-characterisation to include the ‘should have known’ mens rea.960 The Trial Chamber found Bemba criminally responsible under article 28(a) for the crime of rape and murder as a crime against humanity and the crime of rape, murder and pillaging as a war crime.961 In finding Bemba criminally responsible under article 28(a), the Trial Chamber found sufficient evidence that the accused ‘knew that the MLC forces under his effective authority and control were committing or about to commit’ the said crimes.962 Factors such as: ‘the notoriety of the crimes, Mr Bemba’s position, . . . direct knowledge of allegations of murder, rape and pillaging by MLC soldiers at specific times throughout the 2002-2003 CAR operation’ were taken into account to determine Mr Bemba’s knowledge.963
955Prosecutor v Jean-Pierre Bemba Gambo ‘Defence submissions on the Trial Chamber’s notification under regulation 55(2) of the Regulations of the Court’ (18 October 2012) ICC-01/05-01/08, para 10.
956Prosecutor v Jean-Pierre Bemba Gambo ‘Decision on the temporary suspension of the proceedings pursuant to regulation 55(2) of the Regulations of the Court and related procedural deadlines’ (13 December 2012) ICC-01/05- 01/08, para 15.
957Prosecutor v Jean-Pierre Bemba Gambo ‘Defence Motion to vacate Trial Chamber’s “Decision on the temporary suspension of the proceedings” of 13 December 2012 and notification regarding the envisaged re-qualification of charges pursuant to regulation 55’ (28 January 2013) ICC-01/05-01/08, para 9.
958 Prosecutor v Jean-Pierre Bemba Gambo ‘Decision lifting the temporary suspension of the trial proceedings and addressing additional issues raised in defence submissions’ (6 February 2013) ICC-01/05-01/08, para 17.
959Idem para 16.
960Prosecutor v Jean-Pierre Bemba Gambo ‘Judgment pursuant to article 74 of the Statute’ para 57.
961Ibid.
962Idem paras 717, 735, 741 and 752.
963 Idem para 717.
153 4.4.1.5 The Sentencing of Bemba.
In handing down its judgment, the Trial Chamber III considered cumulative convictions once again, relying on the rulings in the Katanga case and the ad hoc tribunals.964 In the Katanga case, The Trial Chamber stated that cumulative convictions were allowed where:
The conduct in question clearly violates two distinct provisions of the Statute, each demanding proof of a “materially distinct” element not required by the other. An element will be considered distinct if it requires proof of a fact not required by the other.965
In agreeing with the decisions in Katanga and the ad hoc tribunals, the Trial Chamber III held that crimes against humanity and war crimes had ‘materially distinct elements, each requiring proof of a fact not required by the other’ and ‘not the acts or omissions of the accused’.966 The Trial Chamber therefore found that it could convict Bemba for rape as a war crime and crime against humanity, and murder in the like manner.967
The Trial Chamber III sentenced Bemba on 21 June 2016. For each crime committed the Trial Chamber considered the gravity of the crime and aggravating circumstances. It stated that the gravity of the crime was
a principal consideration in imposing a sentence. In cases of command responsibility, the Chamber must assess the gravity of (i) the crimes committed by the convicted person’s subordinate, and (ii) the convicted person’s own conduct in failing to prevent or repress the crimes, or submit the matter to the competent authorities.968
In assessing the gravity of rape, the Trial Chamber heard evidence from two experts in ‘post- traumatic stress disorder and sexual violence in armed conflict’ who testified as to the medical, psychological, psychiatric and social consequences that rape victims suffer.969 The Trial Chamber also heard the evidence from another expert who testified on the ‘longitudinal and intergenerational impact of mass sexual violence’, who noted that:
The more severe the crime is – for instance someone who “was gang raped multiple times”, particularly intimate and humiliating traumatic experiences like rape … witnessed by family
964 For example, see Prosecutor v Germain Katanga ‘Judgment pursuant to article 74 of the Statute (7 March 2014) ICC-01/04-01/07, paras 1692 – 1696.
965 Idem paras 1695.
966Prosecutor v Jean-Pierre Bemba Gambo ‘Judgment pursuant to article 74 of the Statute’ para 750-751.
967 Idem para 751.
968Prosecutor v Jean-Pierre Bemba Gambo ‘Decision on sentence pursuant to article 76 of the Statue’ (21 June 2016) ICC-01/05-01/08, para 15.
969 Idem para 36.
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members, and the rape of children – the more likely it will increase the magnitude of negative and permanent psychological issues.970
With regard to the crime of rape and pillaging, the Trial Chamber III took into account the following aggravating circumstances, which included:
Whether the victims were armed, the location of a crime, for example, whether it was committed in places of civilian sanctuary, such as churches and hospitals or the victims’ homes, the victims ages, particularly in cases of sexual violence, the duration and repeated nature of the acts, the perpetrators’ motives, and the violent and humiliating nature of the acts, including their public nature, and any verbal, physical, or other abuse or threats accompanying the crime.971
The Trial Chamber found that the crime of rape along with the crime of murder and pillaging were of serious gravity.972 In the case of the aggravating circumstance regarding rape, the Trial Chamber found that this crime was ‘committed against particularly defenceless victims and with particular cruelty.’973 The Chamber found no mitigating circumstance974 on the cumulative convictions when giving its judgment in Bemba’s case.975 It therefore imposed the same sentence for rape as a crime against humanity and war crime, as they had ‘distinct contextual elements.’976 Consequently, the Chamber sentenced Bemba to 18 years imprisonment for rape as a crime against humanity and 18 years for rape as a war crime – the highest sentence, which it could impose.977 The sentences were to run concurrently with those for murder and pillaging.978
Although the prosecutor was successful in convicting Bemba for SGBCs committed in armed conflict, the full extent of the suffering experienced by the victims, and the gravity of the accused’s criminal conduct was diminished when the Pre-Trial Chamber dismissed the cumulative charges of torture and outrages upon personal dignity.979 The full extent of Bemba’s
970 Idem para 37.
971 Idem para 25.
972 Idem para 93.
973 Ibid.
974 Ibid.
975 Idem para 95.
976 Idem para 94.
977 Ibid.
978 Idem para 95.
979The 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’ at paras 39 and 40. Laurie Green ‘First-class crimes, second-class justice: Cumulative charges for gender-based crimes at the International Criminal Court’
(2011) 11 International Criminal Law Review 529 at 541 (stating that ‘the opportunities for gender justice were lost when the Pre-Trial Chamber denied cumulative charges for sexual and gender-based crimes in Bemba.’) Green also argues that the culture surrounding SGBCs can only be broken by recognising the full spectrum of harm caused by these crimes, and by charging SGBCs accordingly.) Kai Ambos ‘Critical issues in the Bemba confirmation decision’
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culpability and ‘complete picture of his criminal conduct’ was not portrayed on account of the charges of torture and outrages upon personal dignity relating to these SGCCs not being charged cumulatively.980 In finding that it was not feasible to cumulatively charge the crime of torture and outrages upon personal dignity with rape, the Pre-Trial Chamber considered the same evidence in satisfying the elements of each crime.981 The Pre-Trial Chamber did not
‘consider the legal elements of each offence’ but ‘the acts or omissions giving rise to the offence’.982 As pointed out by scholars, a review of the history of how the Rome Statute and of the Elements of Crimes were negotiated points to the intention that some crimes be charged cumulatively.983 Multiple charges based on the same conduct assist Trial Chambers ‘to enter multiple convictions based on that conduct, at least with respect to charges that contain materially distinct elements’.984 If the Pre-Trial Chamber had not dismissed the cumulative charges for torture and outrages upon personal dignity, the Trial Chamber might have felt empowered to hand down a sentence of 25 years as recommended by the prosecution.985
The first sentence imposed by the ICC for SGBCs for a crime as serious as rape which causes lifelong harm to victims, should serve to deter perpetrators. The 18-year sentence handed down does not reflect the gravity of the crime, especially as the time already spent in custody is taken into account,986 and the sentence can be reviewed after two thirds of it has been served987 (2009) 22 Leiden Journal of International Law 715 at 724 (argues against cumulative charging. She states that the practice of cumulative charging is unnecessary and creates ‘a difficult situation for the defence.’ She also considers it as an overcharging of charges.)
980 The War Crimes Research Office at the American University Washington College of Law amicus curiae brief
‘The Practice of Cumulative Charging before International Criminal Bodies’ February 2011, para 8 (Appeals Chamber) available at www.legal-tools.org/doc/ad00a6/pdf/ (accessed on 2 June 2017).
981 Idem at para 19.
982 Idem at para 21. Green ‘First-class crimes, second-class justice’ at 534. Both referring to the ICTY Appeals Chambers Judgment in the case of Prosecutor v Kordic & Cerkez where the Tribunal stated that ‘what must be considered are the legal elements of each offences, not the acts or omissions giving rise to the offence.’
983 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.’ Green ‘First-class crimes, second-class justice’at 536.
984Idem at paras 2 and 8.
985 Erdei is of a different opinion that cumulative convictions will necessarily ensure that the convict receives the appropriate sentence. Ildiko Erdei ‘Cumulative convictions in international criminal law: Reconsideration of a seemingly settled issue’ (2011) 34 Suffolk Transnational Law Review 317 at 328.
986Prosecutor v Jean-Pierre Bemba Gambo ‘Decision on sentence pursuant to article 76of the Statue’ at para 96.
Article 78(2) of the Rome Statute, allows for the deduction in detention of an accused. Article 78(2) provides that:
In imposing a sentence of imprisonment, the Court shall deduct the time, if any, previously spent in detention in accordance with an order of the Court. The Court may deduct any time otherwise spent in detention in connection with conduct underlying the crime.
987 Rome Statute, art 110(3) provides that:
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possibly entitling the convict may get an early release. Although the ad hoc tribunals such as the ICTR have handed down lower sentences for rape, as in the Akayesu case where the accused received 15 years imprisonment for rape, the Rome Statute allows judges to impose higher sentences, up to a maximum term of 30 years imprisonment or ‘a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person’. 988 Scholars such as Whiting have drawn attention to the fact that sentences for direct participation in the crimes attract a higher sentence than those for command responsibility.989 Although the prosecution sought on appeal to have Bemba’s sentence increased to 25 years,990 the outcome of that endeavour will never be known as Bemba was acquitted of all charges brought against him when he appealed against his conviction and sentence.