8 June 2018

Congo-Kinshasa: Bemba Acquitted of War Crimes At the ICC

Photo: CPI
Jean-Pierre Bemba.

The Appeals Chamber at the International Criminal Court (ICC) has overturned Jean-Pierre Bemba's conviction for war crimes and crimes against humanity.

In a ruling issued Friday afternoon, a majority of appeals judges found that the trial chamber erred in finding that Bemba did not take necessary and reasonable measures to prevent the crimes committed in the Central African Republic (CAR) by his subordinate troops 16 years ago.

They also ruled that trial judges erroneously convicted Bemba for specific criminal acts that were outside the scope of the charges confirmed against him by the pre-trial chamber.

Judges Sanji Mmasenono Monageng and Piotr Hofmański disagreed with the majority's decision to acquit Bemba. Other judges on the Appeals Chamber were Christine Van den Wyngaert (presiding), Chile Eboe-Osuji, and Howard Morrison.

Bemba is the most high profile individual tried at the ICC, having served as a vice president of the Democratic Republic of Congo (DRC) from July 2003 to December 2006, and later as the country's leader of the opposition. He was unanimously convicted by a three-judge panel of the court in March 2016 for failure to deter and punish his Movement for Liberation of Congo (MLC) fighters who committed rape, murder, and pillaging. He was sentenced to 18 years in jail.

Despite today's acquittal, Bemba will remain in ICC detention because he was, in October 2016, convicted for tampering with witnesses before the court. In that case, he was sentenced to a one-year prison term and a fine of €300,000.

Last March, the Appeals Chamber upheld his conviction on the counts of giving false testimony and corruptly influencing witnesses but overturned the conviction over presentation of false oral testimony. Furthermore, the Appeals Chamber asked the trial chamber that convicted him to issue a new sentence for Bemba and his two former lawyers who were convicted alongside him.

A status conference has been scheduled for Tuesday, June 12, to discuss the continued detention of Bemba.

In a summary [pdf] of the decision read during a public hearing on Friday, appeals judges found "serious errors" in trial judges' assessment that Bemba did not take necessary measures to prevent, repress, or punish the commission of crimes by his subordinates. They said the trial chamber "failed to appreciate the limitations" Bemba faced in the investigation and prosecution of crimes as a "remote commander" to troops stationed in a foreign country.

Bemba remained in Congo when he deployed his MLC troops in the CAR to help its then-president, Ange-Félix Patassé, fight off a coup attempt. In his defense, Bemba said those troops were under the control of the Central African army and that he lacked the means to issue direct orders to them.

In its decision in March 2016, the trial chamber found that Bemba had direct communication lines with commanders in the field, and that, although he was not in the CAR, he "could and did offer operational orders" from Congo to troops deployed in the neighboring country.

However, appeals judges determined that Bemba's powers to investigate crimes faced "logistical difficulties" throughout the conflict and, contrary to trial judges' findings, Bemba in fact took measures to refer crimes to authorities in the CAR. They also said trial judges erred in determining that Bemba intentionally limited the mandate of commissions and inquiries that he established to investigate and prosecute the crimes.

Appeals judges also found that the trial chamber erred when "it convicted Bemba of acts which did not fall within the facts described in the charges." They noted that the conviction decision "makes no reference to even an approximate number of the individual criminal acts of murder, rape and pillage" that the trial chamber found established and that it did it make a demarcation of the scope of the conviction.

As such, "the conviction would therefore appear to cover, potentially, all such crimes committed by MLC soldiers in a territory of more than 600,000 square kilometers and over a period of more than four and a half months," stated the appeals chamber.

The appeals judges determined that given the broad formulation of the confirmation of charges decision and the Document Containing the Charges (DCC), any criminal acts the prosecution added to its case could not be considered to be part of the facts and circumstances of the case, unless the DCC had been amended. Such an amendment to the DCC was not done.

"The criminal acts added after the confirmation decision had been issued and not listed in the DCC did not form part of the fact and circumstances of the case and Bemba should not have been convicted for them," stated Judge Van den Wyngaert.

In its appeals submissions, the defense claimed that two-thirds of the acts upon which Bemba was convicted were not included in the DCC and fell outside the scope of the charges.

The ICC issued a warrant of arrest for Bemba on May 23, 2008, and the next day he was arrested near the Belgian capital Brussels, where he has a home. Since his transfer to the ICC detention center on July 3, 2008, Bemba has traveled to Belgium twice - in July 2009 for the funeral of his father and in January 2011 to attend the requiem mass of his stepmother.

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