18 May 2016

Central African Republic: Bemba Has Served His Sentence, Defense Lawyers Tell ICC Judges

Photo: CPI
Jean-Pierre Bemba.

Lawyers for former Congolese vice president Jean-Pierre Bemba have asked International Criminal Court (ICC) judges to hand him a light sentence, arguing that the eight years he has spent in detention are proportionate to the crimes he was convicted of.

"He has not only reached but long ago passed the time when his sentence should have ended," said defense lawyer Peter Haynes, at today's sentencing hearing. Bemba, who has been in ICC detention since July 2008, was found guilty last March of failing to suppress the commission of rape, murder, and pillaging by his troops who were deployed in the Central African Republic (CAR) during 2002 and 2003.

Bemba himself was in Congo at the time 1,500 of the more than 20,000 Movement for the Liberation of Congo (MLC) troops he commanded were deployed in the neighboring country. However, judges determined that he maintained command and control over the troops he deployed to help the CAR's then-president, Ange-Félix Patassé, beat back a coup attempt.

The two sentences so far handed down by ICC judges have been for jail terms of 14 years and 12 years. The time spent in court custody by the convicted persons was deducted from the sentences. Moreover, under the ICC's rules, when a convicted person has served two thirds of their sentence, the court reviews their sentence to determine if they can be granted early release.

Haynes said as other international tribunals had established, in sentencing commanders over crimes committed by their subordinates, judges consider the gravity and scope of crimes and the degree of the commander's participation. "Mr. Bemba did not participate in the commission of crimes. He didn't stand there encouraging his troops as they tortured civilians," said Haynes. Neither did Bemba order his troops to commit crimes or have ethnic, religious or other discriminatory motive to participate in criminal activity.

Haynes noted that Bemba's culpability arose from his failure to control a small fraction of his soldiers who were thousands of miles away in a different country, and who committed crimes over a limited period of four months.

Regarding the scope of the crimes, the defense lawyer observed that Bemba was convicted on the basis that his soldiers committed three murders and 28 rapes. While it was "unattractive to talk numbers when discussing loss of human life", he said, Bemba's case was different from others such as in Bosnia where a commander ordered the killing of up to 7,000 Muslim men and boys, or in Rwanda where commanders oversaw the extermination of hundreds of thousands of civilians.

The prosecution, which asked judges to hand Bemba a 25-year jail term, argued that rape and murder were among the most serious crimes of concern to the international community. The defense countered that genocide, extermination, and persecution, rather than murder, were among the more serious crimes covered by the ICC.

The prosecution argued that judges can impose any of sentences prescribed by the ICC's founding law, including a life imprisonment, regardless of whether an individual is convicted for command responsibility or for individual criminal responsibility. However, Kate Gibson, another defense lawyer, argued that command responsibility was indirect responsibility whose conviction often rests on omission rather than act, and sentences tend to be low.

According to Gibson, courts should differentiate commanders who are more culpable from those who are less culpable. Some are available when crimes are being committed, issue orders, and physically take part in mass crimes. Others are nowhere near the crime scene and take some insufficient actions against troops who take part in less serious crimes such as plunder. "Bemba had no part in commission of crimes and never intended them to occur," she said.

Prosecution lawyers said Bemba deserved a long sentence because he knew about the crimes his troops were committing and had channels to suppress them but did not. They also said the crimes were against defenceless civilians and were committed with extreme cruelty.

Haynes said for a decade, Bemba worked for peace and democracy in troubled Congo, brokering peace between rival ethnic communities, establishing education and health services for civilians, and fighting a brutal and incompetent government. He should therefore not be judged by the actions of a few of his soldiers over a period of four and a half months.

Haynes added that peacebuilding is a mitigating factor, as appeals judges at the ICC had already determined by reducing the sentence for Germain Katanga due to his support for disarmament and demobilization in Congo's Ituri province. "Bemba agreed to demobilize his entire force of 20,000 men and for them to be integrated into the national army led by his nemesis in the name of peace," he said. Furthermore, the defense reminded judges that Bemba implemented a death sentence for any of his soldiers who committed rape in the Congolese territory he controlled.

Defense lawyers also reminded judges that during the eight years he spent in detention, Bemba lost his lead counsel, father, step-mother, and grandmother. Meanwhile, his five children had been deprived of the emotional, pastoral, and educational care of a father. The defense also argued that there was no risk that if released Bemba would re-offend.

At the end of the sentencing hearing, presiding judge Sylvia Steiner said Bemba's sentence would be announced "in a reasonable period of time."

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