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ICC: Milestone Guilty Verdict Treats Rape as a War Crime

(Apr. 14, 2016) On March 21, 2016, the three-member Trial Chamber III of the International Criminal Court (ICC), in what has been described as a landmark ruling, unanimously declared the former Vice President of the Democratic Republic of Congo, Jean-Pierre Bemba Gombo, “guilty beyond any reasonable doubt of two counts of crimes against humanity (murder and rape) and three counts of war crimes (murder, rape, and pillaging).” (Press Release, ICC, ICC Trial Chamber III Declares Jean-Pierre Bemba Gombo Guilty of War Crimes and Crimes Against Humanity (Mar. 21, 2016), ICC website.)  Bemba, who served as Vice President from 2003 to 2006, was President of the Mouvement de Libération du Congo (MLC) and Commander-in-Chief of the Armée de Libération du Congo (ALC), the figurehead organization of the MLC that provided its funding and set its goals.  (Id.; Thomas Escritt et al., Congo Ex-Vice President Guilty in Landmark ICC War Rape Ruling, REUTERS (Mar. 22, 2016).)

The ruling marks the first time that the ICC has “secured a conviction for ‘command responsibility,’ meaning that a commander can be found guilty even if he did not himself take direct part in such crimes as rape, murder and pillage but allowed them to be committed.” (The International Criminal Court Recognises Rape as a War Crime, ECONOMIST (Mar. 22, 2016).)

Background

The alleged crimes were committed in the Central African Republic (CAR) from the end of October 2002 to mid-March 2003 by an MLC contingent of about 1,500 men, when Bemba was “effectively acting as military commander with effective authority and control over the forces that committed the crimes.” (ICC Trial Chamber III Declares Jean-Pierre Bemba Gombo Guilty of War Crimes and Crimes Against Humanity, supra.) Bemba had deployed the troops to the CAR in 2002 “at the request and in support of former CAR President Ange-Félix Patassé to counter forces loyal to former Chief of Staff of the Forces armées centrafricaines (‘FACA’), General François Bozizé.” (Id.)

Belgian authorities arrested Bemba on May 24, 2008, pursuant to an ICC arrest warrant, and they surrendered him to the Court on June 3, 2008.  The trial opened on November 22, 2010; the prosecution, the defense, and the victims’ legal representative gave their closing oral statements on November 12-13, 2014. The ICC trial chamber “granted 5229 persons the status of victims authorised to participate in the proceedings.” (Id.)

Findings of Fact

The Chamber concluded that the 2002-2003 conflict in the CAR “was an armed conflict between the Central African governmental authorities, supported by other forces, including the MLC, on the one hand, and the organized armed group of General Bozizé’s rebels, composed of various former FACA soldiers and some Chadian nationals, on the other.” (Id.) The Chamber also found that the MLC troops had carried out “a widespread attack against the civilian population” during the period in questions and had “committed many acts of pillaging, rape, and murder against civilians, over a large geographical area, … .” (Id.) The Chamber further concluded that the troops had carried out such acts in a manner “consistent with evidence of a modus operandi apparent from the earliest days and employed throughout the 2002-2003 CAR Operation: after General Bozizé’s rebels had departed an area, MLC soldiers searched ‘house-to-house’ for remaining rebels, raping civilians, pillaging their belongings, and, on some occasions, killing those who resisted.” (Id.)

Bemba’s Personal Liability

After establishing that the MLC troops had committed crimes that fell with the ICC’s jurisdiction, the Chamber considered Bemba’s role and responsibility in the commission of the crimes. (Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo, No. ICC-01/05-01/08 (Mar. 21, 2016), ¶¶ 694-695, ICC website.)  First, the Chamber found Bemba to have been “a person effectively acting as a military commander [under article 28(a) of the ICC’s Rome Statute] and had effective authority and control over the MLC forces that committed the crimes.” (Id. ¶ 705.) Article 28(a) of the Rome Statute, on the responsibility of commanders and other superiors, states that a military commander or person effectively acting as one will be criminally responsible for crimes within the ICC’s jurisdiction committed by forces under his or her effective command (or authority) and control due to his or her failure to properly exercise control when:

(i) that commander or person either knew or should have known, based on the circumstances at the time, that “the forces were committing or about to commit such crimes”; and

(ii) that 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.” (Rome Statute of the International Criminal Court (in force on July 1, 2002), ICC website.)

Second, the Chamber held that 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.” (Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo, supra, ¶ 717.)

Third, the Chamber concluded, Bemba “failed to take all necessary and reasonable measures within his power to prevent or repress the commission of crimes by his subordinates during the 2002-2003 CAR Operation, or to submit the matter to the competent authorities.” (Id. ¶ 734.)

Finally, the Chamber found that, in light of the above findings, had Bemba “taken, inter alia, the measures identified above, the crimes would have been prevented or would not have been committed in the circumstances in which they were,” and therefore “the crimes against humanity of murder and rape, and the war crimes of murder, rape, and pillaging committed by the MLC” during the CAR Operation “were a result of Mr Bemba’s failure to exercise control properly.” (Id. ¶ 741.)

Decision, Sentencing, and Right of Appeal

Based on the above findings, the Chamber found Bemba guilty under article 28(a) “as a person effectively acting as a military commander,” of the crimes of murder as a crime against humanity and as war crime; rape as a crime against humanity and as a war crime; and pillaging as a war crime. (Id. ¶ 752.)

The Chamber will determine the procedure to be followed for sentencing “after hearing the parties and the Legal Representative of Victims.” (ICC Trial Chamber III Declares Jean-Pierre Bemba Gombo Guilty of War Crimes and Crimes Against Humanity, supra.)  The prosecution and the defense have the right to appeal the decision on conviction within 30 days, based on the Rome Statute and the ICC’s Rules of Procedure and Evidence. In the case of an appeal, the matter will be handled by an ICC Appeals Chamber comprising five judges (as opposed to the Trial Chamber’s three judges). (Id.; Rome Statute of the International Criminal Court, arts. 81 & 83; Rules of Procedure and Evidence (2002), Rules 150 & 151, ICC website.)