The International Criminal Court (ICC) prosecutor Fatou Bensouda has asked judges to sentence former Congolese vice president Jean-Pierre Bemba to a minimum of 25 years in jail. According to Bensouda, as the leader of the Movement for the Liberation of Congo (MLC), Bemba bears the “highest degree” of culpability for crimes committed by his troops against civilians in the Central African Republic during 2002 and 2003.
“Deterrence is one of the main purposes of sentencing,” said Bensouda in submissions to judges on the sentence for the former rebel leader-turned politician. “A long sentence, proportionate to the gravity of Bemba’s culpability would also pursue the objective of deterring other military commanders from committing similar crimes.”
Bemba, who has been in court custody since 2008, was convicted last March of three war crimes and two crimes against humanity, after judges determined that he knew his troops were committing rape, murder, and pillaging but he failed to take decisive steps to stop or to punish them.
In an April 15 filing, Bensouda said Bemba deserved the long jail term because of the gravity of the crimes he was convicted of, the damage to the victims and their families, the gravity of “command responsibility” and the degree of Bemba’s participation in committing the crimes. She noted that rape, pillaging and murder are among the most serious and heinous crimes of concern to the international community.
She added that command responsibility is intrinsically a very serious form of criminal liability and must be sanctioned with harsh punishment. While each individual soldier who commits a war crime is criminally liable for the acts they commit, a military commander who fails to exercise their authority to stop these atrocities is responsible for the cumulative whole of the criminal acts of all subordinate forces, said Bensouda. This was because a failure to stop atrocities had the consequence of exacerbating the devastation to civilian communities.
The prosecutor added that command responsibility is accorded parity with individual criminal responsibility both by the ICC’s legal regime and the jurisprudence of ad hoc tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Therefore, added Bensouda, trial judges may impose any of the sentences prescribed, including a life imprisonment, for any form of responsibility underpinning the conviction, including command responsibility.
Article 77 of the court’s founding law, the Rome Statute, provides that the court may sentence a convicted person to a maximum of 30 years, or life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.
The two individuals previously convicted by the court, Congolese nationals Thomas Lubanga and Germain Katanga, were sentenced to prison terms of 14 years and 12 years respectively. Lubanga was convicted of conscripting, enlisting, and using child soldiers, while Katanga was convicted for aiding and abetting war crimes and crimes against humanity.
In making a case for a much longer sentence for Bemba, Bensouda noted that ad hoc tribunals, particularly the ICTR, imposed life sentences for convictions based solely on command or superior responsibility. She cited the case of former Rwandan army officer Aloys Ntabakuze, who was sentenced by the ICTR to life imprisonment for convictions of genocide, crimes against humanity and war crimes based solely on command responsibility. An appeals chamber reduced the sentence to 35 years’ imprisonment “only because it had quashed some convictions that involved many victims, regardless of the mode of liability underpinning them,” argued Bensouda.
Furthermore, Bensouda argued that, as judges determined in the conviction decision, Bemba had extensive authority and control over his MLC forces, and also had actual knowledge of the crimes committed by his troops. Had he taken “meaningful action”, the crimes committed by his troops would have been prevented, or would not have been committed in the circumstances in which they were.
Bemba’s lawyers had up to April 25, 2016 to file their sentencing submissions. The filing is yet to be made public. The sentencing hearings are scheduled to take place starting next week Monday, May 16, during which at least four individuals are expected to testify.