In early June the International Criminal Court appeals chamber acquitted Jean-Pierre Bemba in a 3-2 ruling. Two years ago Bemba was sentenced to 18 years' for his role, as military commander, for atrocities committed in Central African Republic (CAR).
The decision astounded observers. The unexpected, narrowly decided acquittal, brought scads of criticism. This was because Bemba's 2016 conviction was considered hugely significant. It assigned criminal responsibility to a senior military official physically removed from the violence. It also made sexual violence a centrepiece of the charges.
Sexual violence, a staple of war, has long been absent from international criminal law's charge sheets. By assigning Bemba responsibility for the rapes committed by fighters under his command, the 2016 judgment was seen as an important doctrinal advance for international criminal law.
Bemba's acquittal has wide implications. This is true both for Bemba as well as the ICC and international criminal law. Bemba, who will shortly be released, is rumoured to be returning to Democratic Republic of the Congo (DRC) to pursue political goals. There are reports that his party, the Movement for the Liberation of Congo, known as the MLC, has nominated him as its candidate for the presidential race.
In acquitting Bemba, the Appeals Chamber made three novel judicial interpretations.
First, the Bemba majority found that the ICC prosecution didn't sufficiently specify the charges against Bemba. International criminal courts have traditionally employed relatively lenient standards of precision in pre-trial indictments and charge sheets. And they've permitted the prosecutor relatively wide latitude in amending the charges, including during trial.
But the Appeals Chamber found that alerting Bemba to the categories of charges he faced (rape, murder, pillage) was not sufficient to later bring precise instances not named prior to trial.
Second, the Bemba majority addressed the question of the appropriate standard of review for appellate bodies. Appellate courts rule on questions of how the law is interpreted and applied, turning to questions of fact only when such facts cannot, as a matter of law, stand as interpreted by the trial court.
The typical appellate standard is therefore one of deference. But the Bemba majority held
when the Appeals Chamber is able to identify findings [of fact] that can reasonably be called into doubt, it must overturn them.
This would seem to invite appeals courts to re-litigate cases heard by trial courts.
Anticipating this objection, the Appellate Chamber emphasised:
This is not a matter of the Appeals Chamber substituting its own factual findings for those of the trial chamber. It is merely an application of the standard of proof [beyond a reasonable doubt.]
This line of argument is not, so far, convincing many observers. The international law scholar Leila Sadat, for example, notes that it is inappropriate for the appeals court to substitute its judgment for a court which worked four-and-a-half years, hearing the testimony of 77 witnesses and producing a nearly 400 page decision.
In addition, some note that the decision directly rewards Bemba's witness interference. This was because witness tampering - for which Bemba and some of his cohorts were convicted - arguably had a direct impact on some of the testimony that the Appeals Chamber found to be "in doubt."
The judgment made no mention of how Bemba's conviction for obstruction of justice might have altered the evidence it was assessing.
Finally, the appellate majority reconsidered Bemba's conviction under command responsibility. It found that the Trial Chamber improperly determined that Bemba did not take "all necessary and reasonable" measures when it convicted him. Specifically, the majority took issue with what it found were unsubstantiated interpretations regarding Bemba's intent, as well as the Trial Chamber's use of a standard regarding what Bemba should have done (and the fact that Bemba was never informed of this standard). This may have substantial implications for the possibility of winning convictions under command responsibility.
What the judgment means
Bemba arguably signals a change in direction for the ICC. Other cases have recognised evidentiary ambiguities and inconsistencies.
The Kenyatta & Ruto cases were dismissed when evidence dissolved: witnesses changed their stories, disappeared, or died. Some were murdered.
In the ICC's first judgment, Lubanga, all witness testimony was ultimately found to have been tainted and thrown out. Lubanga was still convicted, but given a relatively light sentence.
What's different about the Bemba case is that it's the first one in which, after years of effort, evidentiary inconsistencies resulted in acquittal.
More significantly, the Bemba majority's language, arguing against international criminal law as a form of "strict liability," signals the possibility of a change of direction in terms of how legal doctrine is applied and interpreted. This new direction has great positive potential.
Rights advocates and victims lament that substantive justice is not served when defendants are acquitted on procedural grounds. But the language of Van den Wyngaert and Morrison's concurrence in the judgment is instructive and correct. They argue that though acquittals like this are "regrettable", they in fact constitute
the price that must be paid in order to uphold fundamental principles of fairness and the integrity of the judicial process.
But with its narrow majority and its bombshell reception, it's not clear this new focus on procedural legitimacy will hold.
Regarding the problem of witness tampering, the Bemba Appeals Judgment is more ambiguous. Witnesses and their testimony constitute huge, unresolved problems for international criminal trials. US law professor Nancy Combs' fascinating Factfinding Without Facts follows the problems of evidence gathering and presentation before the ICC. Small and mobile, ICC operatives and investigators can never hope to attain local expertise, and are thus eternally at the mercy of local operators and their interests. This makes the information they collect particularly subjective.
On the other side, the ICC has had trouble protecting witnesses, either from coaching or threat or both. In response to these challenges, the ICC appears to be "getting tougher" through, for example, its prosecution of Bemba and several others for obstruction of justice in his case. On the other hand, Bemba's acquittal on evidentiary grounds that do not themselves reference or consider the problem of witness coaching and tampering, works against any tough line on witness tampering.
Finally, it's not clear what Bemba's acquittal means for the recognition and prosecution of sexual violence crimes. Sexual violence, although pervasive in war, has faced slow doctrinal development under international criminal law. The 2016 Bemba trial judgment's focus on sex crimes was significant, particularly its doctrinal findings about how sexual violence is articulated under international humanitarian law, and this doctrine is unaffected by the acquittal since it was not addressed.
On the other hand, heightened scrutiny for evidentiary matters is arguably a challenge to future prosecutions for sexual violence. Victims of sexual violence are often slow to come forward, or slow to report sex crimes as part of the litany of what they have suffered. In addition to being very personal (and thus inappropriate to discuss with strangers taking a witness statement), sexual violence often carries deep and pervasive stigma against victims.
The 2016 Bemba judgment was seen as a victory for substantive justice, an important step in carrying us towards the "more just world" the ICC pursues. In the 2018 Bemba acquittal, the majority issued an important challenge about the necessary balance between procedural and substantive justice.