18 July 2018

Congo-Kinshasa: Bemba's Acquittal Raises Concerns on Reparations to Victims in the Central African Republic

The acquittal of Jean-Pierre Bemba has created uncertainty over reparations to several victims of crimes committed by his troops a decade and a half ago. The International Criminal Court's (ICC) rules provide that no reparations order can be issued when there is no conviction.

Bemba's lawyers insist that Trial Chamber III no longer has the ability to make any decisions on reparations, but the prosecution has proposed alternative avenues that could get the victims redress. Among the prosecution's suggestions are the trial of members of Bemba's Movement for the Liberation of Congo (MLC) militia who allegedly perpetrated the crimes, domestic criminal proceedings against Bemba, and civil remedies for victims under national law.

According to lawyers representing the victims, Bemba's acquittal raised several "questions and concerns" for victims, who need time to fully understand the consequences of the judgment to be able to give instructions to their lawyers as to their wishes. The lawyers are conducting consultations with victims after which they will file substantive submissions. A total of 5,229 victims were authorized to participate in the Bemba proceedings.

Although no reparations order will be issued in the Bemba case, the Trust Fund for Victims (TFV) is mandated to offer assistance that is not related to reparations, consisting of physical, psychological, or material support to victims and their families. Following the acquittal decision, the TFV announced that it would accelerate the launch of such a program in the Central African Republic (CAR).

The TFV's assistance mandate activities are distinct from the court's judicial proceedings and do not require the conviction "or even the identification of the perpetrators of the harms suffered by victims," according to Pieter W.I. de Baan, Executive Director of the Fund. The Fund thus considers that irrespective of Bemba's acquittal, victims admitted to the case are victims of the situation in CAR.

The TFV secretariat will conduct an urgent assessment of victim harms and needs ahead of the launch of the assistance program. The assessment will incorporate previous assessment findings on sexual and gender based violence and take account of harms suffered by victims and their families in the Bemba case.

No reparations orders were issued in other cases at ICC that were terminated or resulted in an acquittal. When the trial chamber terminated the case against Kenya's vice president William Samoei Ruto and radio presenter Joshua arap Sang in April 2016, the judges declined to hear a reparation request from victims. It noted that a criminal court can only address compensation for harm suffered as a result of crimes "if such crimes have been found to have taken place and the person standing trial for his or her participation in those crimes is found guilty."

Following Bemba's acquittal, Trial Chamber III invited the defense, prosecution, and victims' lawyers to "file consequential submissions on the reparations proceedings," if they so wished.

Bemba's lawyer Peter Haynes said in July 7 submissions that where the trial chamber has no ability to make decisions on reparations, "it is difficult to see what substantive additional submissions could be presented, particularly given that the parties have already briefed extensively on the question of reparations," and have indeed filed "any other last arguments they wish to be considered" in these matters.

For its part, the prosecution noted that notwithstanding Bemba's acquittal, the majority of appeals judges acknowledged that MLC troops committed crimes in the CAR. It then stated that the judgment does not preclude criminal proceedings against other alleged perpetrators of MLC-related crimes. Secondly, the prosecution said that while fully respecting Bemba's presumption of innocence following the conclusion of the case, the question of whether domestic criminal proceedings can be brought against Bemba for the discontinued crimes "remains an open one in law."

The prosecution also argued that, apart from stating that such crimes are "discontinued," the majority judgment and the associated dissenting opinions are "ambiguous" as to the meaning of the term "discontinued." It suggests that a person can be tried in spite of the provision of Article 20(2) of the court's Rome Statute, which provides that "no person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court."

Accordingly, the prosecution contends that Article 20(2) prohibits further proceedings for "a crime referred to in article 5," in other words, crimes within the court's jurisdiction. As a result, it contends, even if further proceedings for international crimes are disallowed, a person convicted or acquitted by the ICC may also be tried for crimes under national law for the same conduct.

Furthermore, the prosecution has submitted that the outcome of the Bemba case does not exclude the possibility of appropriate civil remedies for victims under national law.

There are only three reparations decision to-date issued by the ICC. In the Thomas Lubanga case, judges set the amount of the former Congolese militia leader's financial liability for reparations to victims at US$ 10 million. Germain Katanga's was set at US$ 1 million. Malian national Ahmad Al Faqi Al Mahdi, who was convicted for attacking religious and historical monuments, was issued a reparations order of €2.7 million (US$ 3.18 million).

Since these individuals have been found to be indigent, the TFV has sought to find other sources of funding to contribute to the reparations. In the Lubanga case, it has rolled out a three-year US$1.06 million program of collective reparations to victims. In the Katanga case, reparations will include an individual symbolic compensation award of US$250 per victim and four collective awards in the form of housing assistance, education assistance, income-generating activities, and psychological rehabilitation.

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