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Key Issues in Bemba’s Appeal Hearing Against ICC Conviction

Did former Congolese vice president Jean-Pierre Bemba’s Movement for the Liberation of Congo (MLC) militia have an organizational policy to attack civilians? And did the nature and scope of the attacks warrant their classification as crimes against humanity? These are among the key issues that will be addressed during an oral hearing in Bemba’s appeal against conviction for crimes committed 15 years ago. The hearing is scheduled to begin on January 9 and will last up to five days.

In March 2016, Trial Chamber III at the International Criminal Court (ICC) convicted Bemba – the former head of the MLC – of war crimes and crimes against humanity for his role in failing to punish or deter his troops who committed rape, murder, and pillaging in the Central African Republic (CAR) in 2002 and 2003. The crimes were committed during the MLC’s deployment in the neighboring country to help its former president, Angé-Felix Patassé, fight off a coup attempt. Bemba appealed the conviction and the 18-year prison sentence. The prosecution similarly appealed the sentence, seeking a jail term of no less than 25 years.

Many of Bemba’s grounds of appeal focus on fair trial issues, mostly related to access by prosecution officials to privileged defense communications and failure by trial judges to grant the defense an opportunity to respond to allegations of witness tampering. Additionally, Bemba’s lawyers contend that judges ignored crucial evidence submitted by the defense, failed to investigate allegations that prosecution witnesses had been bribed, and wrongly concluded that Bemba maintained effective control over his troops accused of brutalizing civilians.

One aspect of the defense appeal, submitted in September 2016, which has drawn attention from the Appeals Chamber judges is the claim that an organizational policy to attack civilians, as a contextual element of crimes against humanity, had not been established.

In the conviction decision, trial chamber judges determined that Bemba’s militia had an organizational policy “to attack the civilian population.” In the judgment, they cited the “recurrent pattern of violence” and the perpetrators’ motives, including punishing “civilians who were suspected rebels or rebel sympathizers, or for MLC losses.”

What was the MLC’s Organizational Policy?

Ahead of the hearing next week, the Appeals Chamber requested specific submissions on contextual elements of crimes against humanity. These include whether the MLC had an organizational policy to attack civilians, whether this policy has been adequately described in Bemba’s trial, and if trial judges provided a “sufficient basis” for finding that there was an organizational policy.

In submissions last November, defense lawyer Peter Haynes argued that the trial chamber did not provide a sufficient basis for finding that the MLC had an organizational policy. He faulted the judges for disregarding evidence showing no such policy existed.

According to the defense, this evidence included the MLC code of conduct that prohibited crimes against civilians, a criminal justice system – including courts martial – to prosecute offending soldiers, and Bemba’s address to his troops in the CAR town of PK12 when he ordered them to behave properly. Haynes also pointed to seven MLC soldiers tried for pillaging in the CAR, an investigative commission Bemba sent to the country to investigate allegations of pillaging, and Bemba’s letter to the United Nations requesting for help to investigate the alleged crimes.

Therefore, the defense argued, attributing any policy to the MLC requires identifying how the group actively promoted or encouraged the policy, or implemented it through a deliberate failure to take action that was consciously aimed at encouraging attacks. Furthermore, said Haynes, no witnesses testified about MLC having an organizational policy to attack civilians, though the prosecution called several former group insiders.

However, the prosecution insisted the MLC had an organizational policy even though this policy was not “formalized.” It cites as evidence of this the troops’ modus operandi, “the recurrent pattern of violence over four and a half months encompassing each location in the broad geographical area under MLC control,” the general motives of the troops, specific MLC operations such as the punitive attack on the town of Mongoumba, and the “active encouragement” of criminality by MLC commanders.

The prosecution argued that this was sufficient and meets the requirement of Article 7(2)(a) of the Rome Statute, for a “state or organizational policy to commit such attack.”

According to the Office of the Prosecutor, although some MLC members may have made some “minor efforts” to halt criminality, this did not contradict the existence of a policy to attack civilians. The MLC code of conduct had deficiencies and was not known to some troops, including at the senior level. The prosecution contended that the limited measures taken by the MLC concerning crimes against civilians were “grossly inadequate” and insincere.

Was an Attack Directed against Civilians?

Appeals Chamber judges further seek to establish whether the trial chamber erred in concluding that there was a course of conduct involving the multiple commission of crimes against civilians. Trial chamber judges found “consistent and corroborated evidence that MLC soldiers committed many acts of rape and murder against civilians.”

The defense faulted trial judges for failing to specify what they termed as “many” incidents of rape and murder, claiming the evidence they relied on mostly related to pillaging or unspecified abuses and all except one incident was hearsay. (Bemba was convicted on two counts of crimes against humanity: murder and rape.)

According to Haynes, the trial chamber’s attempt to demonstrate that the “many acts of rape and murder” constituted a course of conduct and not isolated or random acts by finding that “such acts were consistent with evidence of a modus operandi,” was also flawed. This is because, Haynes argued, there was no evidence on such a course of conduct.

In response, the prosecution countered that the trial chamber did not err when assessing the evidence and applying the law in finding that there was a course of conduct involving the multiple commission of criminal acts. The prosecution argued that there is no requirement in terms of scale, other than the acts be “multiple.” Thus, as long as the acts fall within the course of conduct “anything from ‘more than a few’, to ‘several’, or indeed ‘many’ acts will suffice, even if occurring in a single event.” In this case, the prosecution said the trial chamber correctly considered the evidence “cumulatively” to establish that the threshold was met.

The prosecution also noted that the trial chamber appeared to appropriately restrict itself in considering acts of murder and rape as part of the “many” incidents, contrary to what the defense claimed.

Was the Attack on Civilians Widespread?

The trial chamber found that MLC soldiers committed many acts of rape, murder, and pillaging against civilians over a large geographical area, including in the CAR capital Bangui and the towns of PK12, PK22, Bozoum, Damara, Sibut, Bossangoa, Bossembélé, Dékoa, Kaga Bandoro, Bossemptele, Boali, Yaloke, and Mongoumba.

However, the defense said the “specific underlying acts” of three murders and 28 rapes for which Bemba was found responsible cannot demonstrate a “widespread” attack. It argues that “widespread” connotes a large-scale attack, which must be “massive, frequent, carried out collectively with considerable seriousness and directed against a multiplicity of victims.”

Haynes argued that while trial judges suggested that the murders and rape incidents were committed all over the CAR and throughout the MLC’s presence in that country, those incidents were limited to within 22 kilometers of Bangui before the end of November 2002, or in Mongoumba on March 5, 2003.

The prosecution responded that while a widespread attack must be “large-scale…affecting a large number of targeted persons,” what is considered “large” is not “absolute.” An assessment by the trial chamber must be carried out based on individual facts, and, according to the prosecution, relevant factors may include a “’large number of acts’, the ‘numbers of individuals’ directly victimised, the duration, and the size of population or area otherwise affected.” Again, the prosecution said the trial chamber assessed the evidence cumulatively in confirming the widespread nature of the attack on the civilians in CAR and rejected the defense suggestion that the trial chamber decision was limited to only two locations or specific time periods.

This is only the second time an appeal of a conviction has reached the Appeals Chamber at the ICC. The Appeals Chamber affirmed the conviction of Thomas Lubanga for war crimes in December 2014. Germain Katanga, who was found guilty of war crimes and crimes against humanity in March 2014, did not appeal his conviction.  There was also no appeal in the case of Ahmed Al Faqi Al Mahdi, who was convicted of a single war crime in September 2016.

The oral hearing in the Bemba case will be conducted from Tuesday next week starting at 10:00 CET in The Hague.

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