Q&A on the Bemba case at the ICC

On the occasion of the ICC verdict, delivered on 21 March 2016, finding Jean-Pierre Bemba guilty of crimes against humanity and war crimes committed in CAR in 2002-2003, FIDH is issuing a Q&A on the case.

1. Who is Jean-Pierre Bemba?
2. On what charges has he been convicted?
3. How has Bemba’s case unfolded before the ICC?
4. What are the next stages in the proceedings?
5. Why is this case so important?
6. How have the participating victims contributed to the proceedings?
7. What part did FIDH play in this case?
8. Why are these crimes qualified as war crimes and/or crimes against humanity? Can one attach two qualifications to the same crimes?
9. How can Jean-Pierre Bemba be held responsible for crimes committed by the soldiers under his command?
10. What is the substance of the second case concerning Jean-Pierre Bemba brought before the ICC?
11. Could Jean-Pierre Bemba be prosecuted for the crimes perpetrated by his militia in the Democratic Republic of Congo?
12. Is Jean-Pierre Bemba the only person to have been prosecuted in relation to the Central African situation?
13. Why has the ICC opened a second investigation into the situation in CAR?

1. Who is Jean-Pierre Bemba?

Jean-Pierre Bemba, a national of the Democratic Republic of Congo (DRC), is the President and Commander in Chief of the Mouvement de Libération du Congo (MLC). Before he was arrested, Jean-Pierre Bemba had been the Deputy Prime Minister of the DRC transition government (2003-2006), candidate in the second round of the presidential elections in 2006 and elected senator in 2007. He is the first political figure to be put on trial by the International Criminal Court (ICC).

2. On what charges has he been convicted?

On 21 March 2016, the Trial Chamber of the ICC convicted Jean-Pierre Bemba of war crimes and crimes against humanity, in the form of rape, murder and pillage, perpetrated in the Central African Republic (CAR) from 2 October 2002 to 15 March 2003. Jean-Pierre Bemba was convicted of these crimes in his capacity as military leader of the MLC.

These crimes were committed during an armed conflict which took place in CAR in 2002-2003, when armed groups belonging to the MLC backed up President Ange-Félix Patassé’s Central African armed forces in countering an attempted coup led by François Bozizé (who later became President of CAR, but was also subsequently ousted by another coup in 2013).

3. How has Bemba’s case unfolded before the ICC?

CAR ratified the Rome Statute of the ICC on 3 October 2011.

The State referred the case to the Office of the Prosecutor on 22 December 2004, and public notice thereof was given by the ICC on 7 January 2005. The ICC issued an arrest warrant for Jean-Pierre Bemba in May 2008, following which he was arrested by the Belgian authorities and handed over to The Hague. He first appeared before the ICC judges on 4 July 2008.

The Pre-Trial Chamber confirmed the charges laid against Jean-Pierre Bemba on 15 June 2009. He was charged with war crimes (rape, murder and pillage) and crimes against humanity (rape and murder) perpetrated in CAR in 2002-2003.

The Defence challenged the admissibility of the case, on the grounds that only Central African courts were competent to prosecute Jean-Pierre Bemba, that the case was not serious enough to warrant action by the ICC, and that the procedure was flawed with several judicial errors. These allegations were refuted in June 2010 when the judges ruled that the case was admissible before the ICC; this ruling was confirmed before the Appeals Chamber in October 2010.

Concurrently, and from soon after Jean-Pierre Bemba was taken into custody, the defence filed a stream of requests for conditional release. Despite some twists and turns and disagreements amongst the judges, conditional release was never granted during the investigation stage nor during the trial proper. Jean-Pierre Bemba has remained in the detention unit in The Hague.

The trial finally began on 22 November 2010. Over 5000 victims [1] took part in the trial through their legal representatives.

From November 2010 to April 2014, the Prosecution called 40 witnesses, then five victims gave evidence in person, and finally the Defence called 34 witnesses to the stand.

Accusations of witness intimidation directed at Bemba’s defence team emerged during the trial, giving rise to a second concurrent case [see question 10 of this Q and A].

The trial ended with closing oral statements by the parties and participants on 12 and 13 November 2014.

After the close of the trial, while the judges were deliberating, the Defence submitted several requests for a stay of proceedings alleging procedural errors on the part of the Prosecution, in particular purported violation of privileges and immunity and late disclosure of evidence to the adverse parties. On 17 June 2015, the Trial Chamber held that the Defence failed to substantiate prejudice to the accused’s right to a fair trial and rejected the Defence`s request for a stay of proceedings.

Following a 16 months’ deliberation on the part of the judges, the Trial Chamber has today handed down a verdict in the case against Bemba.

4. What are the next stages in the proceedings?

Since Jean-Pierre Bemba has been convicted, the Trial Chamber must now determine the sentence. Jean-Pierre Bemba could face up to a whole-life tariff, but in principle will serve a maximum sentence of 30 years, which may be compounded with fines and the confiscation of property and assets. Jean-Pierre Bemba’s Defence and the Prosecutor are entitled to appeal the verdict as well as the sentence when they are handed down. Should one of the parties decide to do so, the case will be referred to the Appeals Chamber, which may examine the grounds for appeal arising from procedural errors, mistakes of fact or law. If neither party wishes to appeal the judgement, the latter shall be deemed final.

Simultaneously, the guilty verdict unlocks the procedure for victims to apply for reparations. In fact, the ICC affords victims the right to obtain reparation for the harm suffered as a consequence of the crimes perpetrated by a convicted individual. The Trial Chamber will call upon the various parties to submit observations and may organise reparation hearings, before handing down reparation orders to be met by Jean-Pierre Bemba.

5. Why is this case so important?

The case against Jean-Pierre Bemba is the first ICC case in which the charges relate mainly to crimes of sexual violence.

MLC soldiers practiced widespread and systematic rape amongst the Central African civilian population. In the verdict, the Trial Chamber held that MLC soldiers under Bemba’s command “knowingly and intentionally” committed multiple acts of rape against the elderly, men, women, and children. Rape was certainly used as a weapon of war.

This ruling therefore constitutes fundamental progress in terms of ICC case law on crimes of sexual violence. For the first time, justice has been done for the victims of sexual violence before the ICC. Also, for the first time, victims of these crimes will be able to claim reparations before the Court.

This trial is especially important since none of these crimes has been brought before national courts (the Central African Court of Appeals deferred this case to the ICC in 2006 of its own accord, on the grounds that it did not have the capacity to try the perpetrators of ‘blood crimes’ committed during the conflict). One has to hope that this verdict will have an impact on CAR where similar crimes have been committed during subsequent conflicts.

It is also worth noting that this is the first case handled by the ICC in which a military leader or high-ranking official has been held criminally responsible, prosecuted and convicted. [see question 9 of this Q and A]

6. How have the participating victims contributed to the proceedings?

Apart from the victims’ right to take part in the proceedings and what that means to the victims, their participation in ICC procedures also benefits the Court.

In particular, the victims taking part have made a major contribution to establishing the truth and to understanding the local environment where the events under the ICC scrutiny took place. This aspect of victim participation is crucial to the Court, remote as it is from both physical and cultural realities on the ground.

In the case against Jean-Pierre Bemba, this has been demonstrated in terms of local languages. For instance, the Defence claimed that Lingala, the language spoken by the perpetrators of the crimes and an element which enabled the victims to identify the troops as natives of the DRC, was also spoken in CAR. The Prosecution did not have enough information on this subject and only the legal representatives of the victims, natives of the Central African Republic, were in a position to refute the claims made by the Defence and clarify the matter for the judges. In particular, they were able to explain [2] that Lingala is not spoken in CAR and also point to the differences between the Central African and Congolese accents in French.

Further, several victims taking part were also called upon to testify in person in Court. Of the five victims who gave testimony, two were allowed to submit evidence leading to the guilty verdict of Jean-Pierre Bemba. The statement of Pulchérie Makiandakama, for instance, was decisive in establishing the crimes of collective rape, pillage and murder committed in the Mongoumbo locality, which had not initially been included in the geographical area pertaining to the case as delineated by the Prosecution. The Prosecutors, moreover, quoted the testimony of this witness at length in their oral conclusions [3].

7. What part did FIDH play in this case?

FIDH played a key role in the case against Jean-Pierre Bemba, by contributing both to the establishment of the facts and providing evidence of the responsibility of Jean-Pierre Bemba. [4]

FIDH deployed a first fact-finding mission, at the end of November 2002, to look into serious crimes committed in October against civilians in CAR, and published a report entitled ‘War crimes in CAR’. This report exposed human rights violations perpetrated by General Bozizé’s men, who were attempting to overthrow the government, and by troops loyal to President Patassé, including Congolese mercenaries serving in the MLC and sent by their leader Jean-Pierre Bemba to reinforce the Central African armies. In February 2003, FIDH sent its report, in the form of a communication, to the ICC - the first to be submitted by an NGO to the Court- calling upon it to open an investigation into crimes committed in CAR.

Subsequently, FIDH has regularly carried out several missions in the Central African Republic and taken numerous victims’ statements. The reports produced have all been transferred to the ICC Office of the Prosecutor: ‘What justice for the victims of war crimes’, ‘How will the ICC respond?’, ‘Forgotten, stigmatized: double jeopardy for the victims of international crimes?

These reports served as evidence in the case brought against Jean-Pierre Bemba by the Office of the Prosecutor, the victims legal representative and the judges. In particular, they were cited in the ruling confirming the charges handed down by the Pre-Trial Chamber, in the Prosecutor’s final conclusions as well as in the final verdict. The latter makes several references to the 2003 report in order to provide detailed accounts of alleged acts of murder, rape, and pillaging by MLC soldiers against civilians in the CAR following 25 October 2002.

Furthermore, the investigation work and exposure by FIDH elicited a direct reaction from Jean-Pierre Bemba, who sent a letter to the FIDH President dated 20 February 2003. In his letter, Jean-Pierre Bemba acknowledged having read the FIDH report and claimed to have already investigated and punished the perpetrators of exactions within the MLC. This letter was used as crucial evidence in establishing the criminal responsibility of Jean-Pierre Bemba as military leader. Indeed, as confirmed in the verdict rendered by the Trial Chamber, this letter tends to prove that, by his own admission, Jean-Pierre Bemba was effectively in control of his troops and was fully aware of the allegations of criminal acts perpetrated by soldiers under his command. [5]

8. Why are these crimes qualified as war crimes and/or crimes against humanity? Can one attach two qualifications to the same crimes?

The criminal conduct in this case can be qualified under both war crimes and crimes against humanity on the basis of the contextual elements required for each crime. The fact that the accused was convicted of both highlights the necessity to protect civilians in both times of war and in situations that do not amount to armed conflicts.

The Chamber held that the war crimes and crimes against humanity have materially distinct elements, each requiring proof of a fact not required by the other. The crime against humanity requires the existence of a widespread or systematic attack against a civilian population and a nexus between the perpetrator’s conduct and the attack, while the war crime requires that the victim was either hors de combat or was not taking part in hostilities and that the conduct in question was connected to an armed conflict.

As regards the crimes against humanity, the Chamber concluded that the underlying acts of murder and rape were committed by the MLC soldiers as a part of “widespread attack” directed against the civilian population according to the organizational policy.

In regards to the war crimes, the Chamber found that the crimes were committed against civilians not taking part in the hostilities in the context of an armed conflict of a non-international character between the CAR governmental authorities, supported by other forces, including the MLC, on one hand, and the organized armed group of General Bozizé’s rebels on the other. The Chamber concluded that the armed conflict played a major part in the perpetrators’ decision and ability to commit the crimes as well as in the manner in which the crimes were committed.

The Chamber thus concluded that, given that these offences are materially distinct and each offence requires proof of a fact not required by the other, Bemba’s conviction, based on his criminal responsibility under Article 28(a), for (i) rape as both a war crime and crime against humanity and (ii) murder as both a war crime and crime against humanity is permissible. [6]

9. How can Jean-Pierre Bemba be held responsible for crimes committed by the soldiers under his command?

Jean-Pierre Bemba was convicted of crimes committed by members of the MLC, in his capacity as President and Commander in Chief of the MLC. This is the first time the judges of the ICC have convicted an individual in his capacity as a superior for crimes committed by persons serving under his command.

The guilty verdict is indeed based on criminal responsibility in the sense of Article 28(a) of the Rome Statute, i.e. responsibility of commanders. The responsibility of the commander means the legal responsibility of a (civilian or military) superior for crimes committed by subordinates under his or her control.

Hence, rather than prosecute individuals physically responsible for individual crimes (those who actually murdered, raped, etc.) the judges examine the criminal responsibility of the person who was their superior at the time the crimes were committed.
However, this form of responsibility has to meet strict criteria. In particular, in order to establish the criminal responsibility of a military commander, proof has to be provided that:
- (i) the military commander actually exercised effective control over the forces placed under his or her command,
- (ii) the military commander knew, or because of the circumstances should have known, that his or her forces were committing crimes, and
- (iii) the military commander failed to take all necessary and reasonable measures within his or her power to prevent his or her soldiers from committing such crimes, or to punish them once the crimes had been committed.

The Chamber concluded that, throughout the 2002-2003 operation, Bemba knew that the MLC forces under his effective authority and control were committing or about to commit the crimes against humanity of murder and rape, and the war crimes of murder, rape, and pillaging. It further held that Bemba failed to take all necessary and reasonable measures to prevent or repress the commission of crimes by his subordinates during the 2002-2003 operation, or to submit the matter to the competent authorities.

In the case of war crimes, crimes against humanity or genocide, crimes which often lead to hundreds of thousands of victims over extensive geographical and time scales, the concept of commander responsibility is crucial to allow for the prosecution of individuals who hold high ranking military or political posts. As the Prosecutor highlighted in her official statement following the conviction, this decision affirms that "those in command or authority and control positions have legal obligations over troops. They cannot take advantage of their power and status to grant to themselves, or their troops, unchecked powers over the life and fate of civilians. They have a legal obligation to exercise responsible command and control over their troops – to provide sufficient training to ensure that their troops do not commit atrocities" [7]. The guilty verdict handed down to Jean-Pierre Bemba, convicted for crimes perpetrated by MLC forces because he was the highest ranking individual (i.e. military chief) of the MLC, constitutes substantial progress in the case law of the Court.

10. What is the substance of the second case concerning Jean-Pierre Bemba brought before the ICC?

A second set of proceedings against Jean-Pierre Bemba and a number of his henchmen has been set in motion.

On 20 November 2013, ICC Pre-Trial Chamber II issued a warrant for the arrest of Jean-Pierre Bemba, his main counsel Aimé Kilolo-Musamba, his records management official Jean-Jacques Mangenda Kabongo, Congolese Member of Parliament Fidèle Baba Wandu and defence witness Narcisse Arido. These five persons are charged with offences against the administration of justice, namely witness intimidation and producing false and forged documents.

While Jean-Pierre Bemba is held in detention, the other four suspects have been granted bail.
Almost a year to the day, Pre-Trial Chamber II confirmed the charges of offences against the administration of justice against the five individuals. These offences were witness intimidation and submission of false testimony.

The opening of the trial took place on 29 September 2015 before Trial Chamber VII. The Office of the Prosecutor already finished presenting its evidence and currently the Defense presents its case.

11. Could Jean-Pierre Bemba be prosecuted for the crimes perpetrated by his militia in the Democratic Republic of Congo?

MLC troops, under the command of Jean-Pierre Bemba, were also active in the north of the Democratic Republic of Congo (DRC). They carried out many exactions on the Congolese civilian population, especially during the armed conflict from 1998 to 2003.

The situation in the DRC has been under an investigation initiated by the ICC Prosecutor on 23 June 2004. At the time of writing, six individuals have been charged. Thomas Lubanga and Germain Katanga have been convicted for war crimes and/or crimes against humanity, Mathieu Ngudjolo was acquitted, the Pre- Trial Chamber declined to confirm the charges in the case of Callixte Mbarushimana, the Prosecution is currently presenting its case against Bosco Ntaganda which commenced on 2 September 2015, and yet another accused, Sylvestre Mudacumura, is still at large.

So far Jean-Pierre Bemba has not been charged for alleged crimes perpetrated in the DRC by MLC forces, in particular in the Ituri region in 2002. Congolese victims participating in the situation under investigation in DRC, and represented by FIDH lawyers, have requested in June 2010 the ICC judges to question the ICC Prosecutor about the decision not to prosecute Jean-Pierre Bemba for crimes MLC troops are alleged to have committed in Ituri. In October 2010, the ICC Pre-Trial Chamber I dismissed the victims request on the basis of the absence of an explicit decision of the Office of the Prosecutor not to prosecute Bemba for crimes committed in Ituri [8] . Although the Prosecutor has not made any specific announcement as to a decision on the de facto closing of the Ituri investigation, it can safely be said that it is very unlikely that the ICC Prosecutor will also charge Jean-Pierre Bemba for crimes perpetrated by his militia in the DRC.

On the other hand, national courts can still prosecute Jean-Pierre Bemba. Actually, by dint of the complementarity principle between the ICC and States Parties, first and foremost, it behoves States Parties to investigate and prosecute perpetrators of crimes falling within the jurisdiction of the Court. Although the ICC opened an investigation on the situation in the DRC, the Congolese courts can and should prosecute the perpetrators of crimes committed on Congolese territory which have not been taken up by the ICC. National courts are not time restricted as is the ICC, which means that they could act against Jean-Pierre Bemba for crimes committed by the MLC before 2002.

12. Is Jean-Pierre Bemba the only person to have been prosecuted in relation to the Central African situation?

The crimes committed on Central African territory in 2002/2003 have been under investigation by the ICC since 22 May 2007. To date, Jean-Pierre Bemba is the only person who has been prosecuted and convicted in this connection. FIDH has, on many occasions, called upon the Office of the Prosecutor to prosecute other high ranking officials from all the parties to the conflict, but it seems very unlikely that this will happen. All the more so since the death in 2011 of former President, Ange-Félix Patassé, whose responsibility in the perpetration of serious crimes in the DRC in 2002/2003 was brought to light by FIDH.
Furthermore, the Prosecutor has since opened a new investigation on other serious crimes that were committed more recently in CAR, known as ‘situation in CAR II’.

13. Why has the ICC opened a second investigation into the situation in CAR?

The ICC Prosecutor announced the opening of a second investigation in CAR on the ‘situation in CAR II’. This new investigation relates to crimes allegedly committed after 1 August 2012 in CAR by Séléka and anti-Balaka groups in conjunction with a Coup against General Bozizé and the violence that ensued.

FIDH has conducted several fact-finding missions in CAR and very early on spoke out against serious crimes, in particular, those committed from summer 2013 to February 2014 against the Central African civilian population. In this connection, FIDH called for the Prosecutor to commission a second investigation.

FIDH hopes that this investigation will swiftly lead to the prosecution of high ranking persons responsible for this violence on both sides of the conflict.

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