The Prosecutor has applied for leave to appeal the decision of the Pre-Trial Chamber that issued an arrest warrant for crimes against humanity and war crimes against President Bashir of Sudan because it rejected the charge of genocide: http://www.icc-cpi.int/NR/exeres/CC751CCC-B58D-49A8-8073-83E0D06D3717.htm
In order to obtain leave to appeal, in accordance with article 82, he must demonstrate that the decision 'involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial' and for which 'an immediate resolution by the Appeals Chamber may materially advance the proceedings'. It is really hard to see how these conditions can be met. The evidence to prove crimes against humanity and genocide will be essentially the same, and therefore this should not affect the proceedings in a significant way. The Trial Chamber can always conclude that there is enough evidence to sustain a charge of genocide, and then amend the charges, bearing in mind the need to give fair warning to the defence. In other words, there is no need to resolve this issue now. It can easily be fixed at trial, if indeed a mistake has been made.
The Prosecutor's arguments in his application for leave to appeal are not very convincing. Essentially, they amount to saying that any time a Pre-Trial Chamber denies certain charges in an arrest warrant, this raises issues of fairness and requires immediate determination. He is claiming, I think, that a decision of the sort should automatically be subject to an appeal.
This is surely not what was intended by the drafters of the Rome Statute, it is not what the Statute says, and it doesn't make sense. The whole purpose of limiting the right of interlocutory appeal is to expedite the proceedings. It is generally framed within concern about dilatory motions by the defence. One would not expect it to be the Prosecutor who is delaying proceedings.
One of the arguments in the application for leave to appeal that I found particularly intriguing is the claim that the Pre-Trial Chamber decision creates unfairness for the defense. This is very creative. I doubt that the defense agrees, however, that the Prosecutor should be able to appeal in order to add a charge of genocide!
The application says that the Prosecutor also intends to apply for a new arrest warrant, with new material. Aren't there more important things for the Prosecutor to be doing? After all, he obtained a warrant for crimes against humanity. Why not concentrate on proving that one, rather than quibble about whether the charge should also be one of genocide?
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Jean-Pierre Bemba, a victim of a political trial?
Is the proceeding against J.-P. Bemba intended to hold him accountable for crimes his men may have perpetrated in the Central African Republic (CAR), to give hope to victims that justice will be done, as alleged by the Prosecutor, or the point is simply to put J.-P. Bemba out of the political scene in the Democratic Republic of Congo, in order to secure the presidency of Joseph Kabila regime, by weakening his opposition?
This case raises multiple questions we can’t deal with in these papers. We are going to focus only on just a few of them by relying essentially on an analysis of the Pretrial chamber (PTC) decision under the Prosecutor application for an arrest warrant under art. 58 of the Statute dated from the 10th June 2008 (ICC-01/05-01/08), as well as on questions and replies raised during the confirmation of charges hearings held from 12 to 15 January 2009. Given some erroneous ideas that have circulated and are continuing to circulate, it seems important to shed light on the question related to the status of Bemba as a gig fish of the ICC, to recall that the Bemba's case is the result of investigations that have lasted more than four years, which in fact would suggest that the Prosecutor had enough time to make a good case. Unfortunately, the Defense team seems to have succeeded in weakening the arguments of the Prosecutor set in the arrest warrant of the 10 June 2008, in relation with two points, a) the Prosecutor’s allegations on the existence of a common plan to commit crimes, allegation that cannot go with the notion of risk developed by the same Prosecutor and the PTC in the same Decision; b) the question related to the responsibility of the M.L.C., as well as that of the individual criminal responsibility of Mr. Bemba in the commission of the crimes in the CAR. Above all the question is to know whether Mr. Bemba is not an “expiatory victim” of these horrendous crimes and atrocities committed in the CAR, without being necessarily guilty of them. The allegation of a political trial against Mr. Bemba can be confirmed, if the case is not sound, and if, in the case, charges are not confirmed against him, he is nevertheless maintained in detention in order to allow the Prosecutor to collect other evidences in support of his case against him. In the latter case, it will be easy to the Prosecutor to fall in the trap of setting aside exculpatory evidences, and violating the requirement of a fair trial for the accused. The concrete and final result on the ground in the DRC, will be to put Mr. Bemba out of the political scene, on the base of a file that is not addressing each of the fundamental questions.
It seems also important for us to precise that I am not a M.L.C. supporter. I am just a human right activist, and I think that justice is served, and human rights must be defended regardless of any kind of distinction based on the race, the sex and political affiliations of the accused. Let’s begin by the addressing the question concerning the status of J.P. Bemba as a big fish of the ICC.
I- Is Mr. Bemba, a “big fish”?
As a reminder, Mr. Bemba has been always presented as a big fish of the ICC. This conception is not true. If Mr. Bemba can be considered as a big fish in the DRC, that is not necessarily the case in the CAR where crimes have been committed. In the CAR Mr. Bemba is not the big fish. The former as well as the incumbent CAR presidents are the real “big fishes” in the commission of crimes in their country. The troupes loyal to the incumbent CAR president seem to be implicated in crimes committed in the Northwest part of the CAR. As a reminder, the Prosecutor of the ICC had notified his intention to bring to justice the most responsible of crimes committed to that part of the CAR; crimes that are attributed to Bozizé’s men. The latter “wrote a letter to UN Secretary General Ban-Ki moon on August 1, 2008, asking the UN to intercede in any possible ICC investigations of crimes in the north of the country pursuant to article 16 of the Rome Statute of the ICC, which empowers the UN Security Council to suspend court proceedings for up to 12 months, renewable, if required to maintain international peace and security” Human Rights Watch, Improving Civilian Protection in Northwest Central African Republic, December 2008, n° 1, p. 22 available on line at http://www.hrw.org/sites/default/files/related_material/car1208web.pdf ).
Another point is to stress the fact that crimes Bemba is charged of, are subsequent to his status as a DRC Vice-President, as well as that of senator at the time of his arrest in Brussels. The crimes seem to have been committed when he was only the President of the M.L.C.
Third, as a reminder, when he was arrested, Mr. Bemba was preparing to return in the DRC, to work as an opposition leader. As the Prosecutor spokeswoman said, his return in the DRC would make difficult his arrest, because it was easier to arrest him in Brussels than in Kinshasa in the DRC. Obviously this argument is not sound, because right now, all ICC detainees are Congolese arrested in Kinshasa. On this point the quality of the cooperation offered by the RDC government has never been challenged and the fear advanced is not founded.
II.- The base case: the result of investigations that have lasted more than four years
As a reminder, it is since 22nd December 2004, that the CAR referred the situation to the Prosecutor of the ICC. Two years later, given the inaction of the Prosecutor, the CAR government reminded the case to the ICC. On the 30 November 2006, the PTC of the ICC decided to request the Prosecutor “to provide the Chamber and the Government of the CAR, no later than 15 December 2006, with a report containing information on the current status of the preliminary examination of the CAR situation including an estimate of when the preliminary examination of the CAR situation will be concluded and when a decision pursuant to art. 53 (1) of the status will be taken”. On this basis the Prosecutor submitted a Report on 15th December 2006, in which he provided general information on the status of the preliminary examination and the problems this examination is facing on the ground in the CAR situation.
On 22nd the ICC Prosecutor, decided finally to open an investigation (Doc. n° ICC-OTP-BN-20070522-220-AA_Fr). In this decision, the Prosecutor promised to focus on crimes committed between October-November 2002 and February-March 2003. He affirmed his determination to collect information and to pay a particular attention to allegations of crimes committed in other parts of the CAR, namely in the North at the end of 2005.
On 9th May 2008, the Prosecutor submitted a sealed application for a warrant of arrest under art. 58 of the Statute against Mr. Bemba. But on 21st May, the PTC requested additional information and evidences concerning some aspects of his application namely in support of of the charges of others forms of sexual violence and murders, these two crimes envisaged in their double qualifications of crimes against humanity and war crimes (Decision of 10 June 2008, § 6). But the Prosecutor, before giving these additional information and evidences, came back to the judges to request an application for a provisional arrest under Art. 92, against Mr. Bemba alleging a risk of fleeing in the DRC if he is not arrested. On this basis, Mr. Bemba, the only suspect in the CAR situation, was arrested on 24th May 2008 in Brussels, on the basis of the PTC decision to request his provisional arrest under Art. 92. This decision was delivered at the previous day of his arrest and the judges were relying on Art. 58 as well as Art. 92 of the Statute, before obtaining additional information and evidences they requested in their previous Decision. The hurry will lead to some inconsistencies in the Decision and during the confirmation of charges hearing.
III.- Are the crimes committed the result of a common criminal plan or the result of an activity the realization of which entailed the risk of committing the alleged crimes?
In the 10 June 2008 decision under hands, the judges came back several times on the notion of the “risk” (paragraphs 72, 80 and 82). The fact of resorting on the notion of risk seems to be inconsistent with the existence of a criminal plan as alleged by the Prosecutor. If the crimes were committed because Bemba accepted the risk, that is to say we are facing accidental or collateral victims of a war led by “non-professionals” of war, that is to say a war done by uncontrolled soldiers. These kinds of acts are out the scope of Art. 8 of the Rome Statute. In reality, every war contains a risk of the commission of war crimes. The notion of a “clean war” does not exist in practice. It seems important to remind here that Art. 8 of the Rome Statute applies on war crimes “in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes”. Concerning crimes against humanity, Art. 7-2-a defines the term “attacks against any civilian population” in crimes against humanity, as “a course of conduct involving the multiple commission of acts referred to in paragraphs 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack”. Such formulation of Art. 7 and Art. 8 of the Rome Statute is excluding, for sure, the hypothesis of crimes committed as a result of a risk that may have been assumed, and is excluded the hypothesis of collateral victims of isolated acts committed by uncontrolled soldiers. It seems to be inconsistent to allege that those crimes were committed as the result of risks assumed by Mr. Bemba, and to allege at the same time the existence of a common plan the purpose of which was to commit the alleged crimes.
IV. On the question of responsibility
A.- The imprecision on the attribution of the crimes committed on the MLC troops
What has led the Prosecutor’s to allege that it was MLC troops that committed alleged crimes? In the Decision under hands, the criteria taken were that of the language used by the attackers. They were speaking “lingala”. This criteria seems to be uncertain and not reliable, because in one hand, there is a part of CAR population speaking this language; and in another hand, the attackers are called Banyamulenge. Now the Banyamulenge, as it is known, are people living in the high plateau of Minembwe, near the Uvira city, in the South Kivu, province of the DRC. These people speak Kinyarwanda and Kiswahili and not lingala, and are well known for their rebellion launched against the presidency of Mobutu which led Laurent-Désiré to the Power in Kinshasa in 1997. That is to say, the language criteria cannot be used to identify the attackers as the MLC fighters. If we assume that the attackers were banyamulenge, we should exclude the MLC fighters in the commission of the alleged crimes because those who committed them were speaking lingala. Obviously, the question of Mr. Bemba’s responsibility cannot be raised before establishing the responsibility of MLC troops in the commission of those crimes. But even in the case the MLC troops committed those crimes; the establishment of Mr. Bemba’s individual responsibility is not as such simplified. On this point, one observes the imprecision of the type of mode of liability used against Mr. Bemba. Even by retaining the lower one, liability as a commander or other superiors, what could obviously simplifies the work of the Prosecutor, some imprecision and even inconsistencies can be seen, in relation to a well established jurisprudences of the International Court of Justice, the European Court of Human Rights, and even the International Criminal Tribunal for the former Yugoslavia.
B.- The imprecision on the choice concerning the mode of liability in the commission of alleged crimes in the Bemba case (Art. 25-3-a and 25-3-b of the Rome Statute).
This imprecision derives mainly from the wording of the decision of 10 June 2008. Many people thing erroneously that Mr. Bemba is charged on the basis of superior or commander who failed to take appropriate measures to prevent or punish crimes committed by his men. This mode of liability is set in Art. 28 of the Rome Statute. Other people think he is charged for having ordered the commission of those crimes. The latter mode of liability is more serious than the first and is based on Art. 25-3-b of the Rome Statute. But the true is that he is charged with a more serious mode of liability, as a co-perpetrator (Art. 25-3-a). The aggravation of his accusation is unfortunately not supported by available evidences in the file. These evidences, as it could be seen during the confirmation of charges hearing, does not allow to take even the lower level of liability, that of a commander or superior who might have failed to take appropriate measures to prevent or to punish the alleged crime committed by his men.
Such high level of liability, that of co-perpetrator, requires not only a high level of control on the troops that committed the alleged crimes, but also something more than the simple fact of ordering to commit those crimes. It is question to commit the alleged crimes “through another person, regardless of whether that other person is criminally responsible” (Art. 25-3-a). It is not easy to demonstrate this mode of liability when the alleged responsible was very far from the place of the commission of the crimes.
Now the Prosecutor’s team was not able to prove that Mr. Bemba knew or had reasons to know that his troops had committed or were committing or about to commit the alleged crimes. Even in this case this level of proof would be required for the case of prosecution based on the liability as a commander or superior, and not as a co-perpetrator. The only clues available were some newspapers from the RFI (Radio France International). Whereas the thing is those are indirect sources, whose impartiality can be challenged, given the fact that France was involved in the CAR conflict at this time. Another point is the confusion between the facts of receiving report from the field on the general situation on the ground, the numbers of the wounded that of the killed etc. and to receive report on the crimes they were committed abroad. This distinction does not appear in the file of the Prosecutor. It is also the same confusion that appears once more concerning the control of the troops on the battle field.
C.- The difficulty to establish the individual criminal liability of Mr. Bemba, even as a commander or superior (Art. 28 of the Rome Statute).
Who had the control of MLC troops in the CAR? This is the central question. Given the fact the alleged crimes were committed by abroad by the MLC troops that were sent in the CAR, under an invitation of the legal et democratically elected government of this sovereign State, the question related to the responsibility of Mr. Bemba on his troops abroad can be addressed according to the guidelines set forth by Art. 8 of the Draft Article on State responsibility of the International Law Commission (ILC), adopted on 2001 by the General-Assembly of the UN (Yearbook of the International Law Commission, 2001 vol. II(2), page 47) which provides: “The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct”. (http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf )
One of its applications is the Nicaragua case in which the ICJ set the criteria of an effective control. (ICJ, Nicaragua v. USA, Decision of 27 June 1986, para 115), the Appeal Chamber of the ICTY, in the Tadic case, thought sufficient the criteria of a “global control” to attribute to the FRY acts committed by the Bosnian Serbs and to qualify the conflict in Bosnia-Herzegovina as an international (Prosecutor v. Tadic, Appeals Chamber, 15 July 1999, para 145). It is once more on the same criteria of the effective control that the ICJ came back by affirming in the Bosnia-Herzegovina case (Decision of the 26th February 2007, in the case opposing the DRC to Uganda, decision of 19th December 2005. The ICJ is not the only Tribunal affirming that criteria. Some decisions from the European Court of Human Rights can be mentioned, namely the Decision in Bankovic v. Belgium, 19 December 2001, and specifically the Decision in Behrami v. France, and Saramati v. France, Germany and Norway, 2 May 2007, para 133-139). We will make an in-depth analysis of these jurisprudences later after the decision of the PTC on confirmation of charges. For now, what we need to bear in mind is that the criteria of effective control is fundamental I the establishment of the state responsibility and consequently that of individual responsibility of states authorities. It is these same criteria which appear to be fundamental in the establishment of the individual criminal responsibility of rebels’ leaders when crimes are attributed to their troops. We discover then, as argued by the Defense, that one of the weakness of the Prosecution allegations is to infer from the control that Bemba exerted on his men in the DRC, in the territory under his leadership, to infer from this control in the DRC the control in the CAR. This reasoning appears to be too simplistic, because the troops were sent abroad following the invitation from the democratically elect government. The simple logic in this case is commends to go rather from the opposite presumption, that is to say to consider that it is the CAR authorities who have the full technical and operational control in the ground. It is hard to understand the opposite way of thinking consisting to go from the idea that it is Mr. Bemba who continued to exercise control on the battle field abroad, and to put the burden of proof on him, by asking him to prove that he did not have the control over his men in the CAR. The presumption must be in favor of Mr. Bemba because military operations were done abroad, in a country in which he had no power. In so doing, it is up to the Prosecution to prove that even abroad; Mr. Bemba continued to give instructions to his men in the battle field. Even in this hypothesis, nothing allows us to say that these instructions were necessarily criminal, because of the occurrence of war crimes. The criminal instructions have to be demonstrated and not simply supposed from the result on the ground.
The second problem consists to blame Mr. Bemba for having done nothing to punish his men when he had that they might have committed crimes in the CAR. This is absurd simply because Mr. Bemba wrote to the special representative of the UN in the CAR on 4th January 2003, as well as to the President of the ONG FIDH, to request their support in order to conduct an investigation and shed lights in the allegations concerning war crimes that might have been committed by his men and that might have occurred during the military campaign in the CAR, and to bring those who will be found responsible for that to trial. Since they have been no reply to these two letters from the UN as well as from the FIDH, it is absurd to blame mR. Bemba for having done nothing to punish his men for the perpetration of the alleged crimes in the CAR.
V.- Conclusion : Is Mr. Bemba an expiatory victim?
The movement of the fight against impunity can lead to a conflict with the requirement of a fair trial. Since the authority and the prestige of the international justice lays essentially on its ability to set a balance between these two requirements. The Bemba case seems to be an illustration of this dilemma. In one hand, considering the situation of victims of these atrocities, which chokes the universal consciences, it is clear that this kind of crimes can not go unpunished. But when some suspects are brought before justice, the requirements of a fait trial must be respected in order to avoid making the latter, expiatory victims of an unbalanced system in favour of direct victims of crimes under international law. In the Bemba case, it seems like the Prosecutor, touched by the cries of victims (that is legitimate), has fallen in the trap of searching not necessarily the guilty but someone who must pay the price, the expiatory victim. The question is then to know if the sword of justice might have fallen on the wrong person, Mr. Bemba Gombo, after four years of investigations. One could object by saying even if the charges are confirmed the suspect is still enjoying his presumption of innocence, because the PTC would have decide not on his guilty but on the confirmation of charges. But this presumption is nothing but theoretical. As a reminder, Mr. Bemba was arrested in Brussels since 24 May 2008. All his belongings as well as his bank account, that of his wife and even that of his children have been seized by the ICC; that he was arrested when he was about to go in the DRC to assume his task as the leader of the opposition in the DRC. No matter whet the final result in this case, his arrest and his detention in The Hague, has been a way to sully his reputation of a political leader. Finally the triumphalism of NGO, the media on his arrest betrayed the fact that he is already judged and convicted by the Tribunal of the public opinion, that of the media and NGO, in such a way his eventual acquittal by the ICC judges will be considered as a scandal. This state of thing will obviously continue when the PTC, in the case it does not confirm the charges, nevertheless holds Mr. Bemba in detention, so the Prosecutor can continue to collect evidences against him. In this case, it will be easy for the prosecutor to fall in the trap of collecting only inculpatory evidences and put aside exculpatory evidences, contrary to the requirement to investigate in both sides. In any case the result is the same: Mr. Bemba is put out of the political scene in the DRC. And if the file is not consistent, it would be very hard to reject the argument of a political trail against Mr. Bemba.
Done in The Hague, this 20th January 2009.
Jacques MBOKANI
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