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The Bemba Acquittal: Checks and Balances at the International Criminal Court

With the recent news that the Movement for the Liberation of Congo political party nominated Jean-Pierre Bemba as their presidential candidate at a party congress in Kinshasa, it has become clear that the acquittal of the former Congolese vice president has implications beyond the jurisprudence of the International Criminal Court (ICC). While much of the focus has shifted to what impact Bemba will have on domestic politics in the Democratic Republic of Congo (DRC), and indeed many Congolese are celebrating this moment, it is important to reflect on the legal debate generated by the ICC’s decision to acquit.

On June 8, 2018, the Appeals Chamber of the ICC overturned Jean-Pierre Bemba’s 2016 conviction for war crimes and crimes against humanity. The former vice president and militia leader from the DRC had been in ICC detention since his arrest in Belgium in 2008. After years in pre-trial detention and a trial that lasted almost four years, Trial Chamber III found Bemba liable under the theory of command responsibility for his failure to prevent and punish the criminal behavior of his troops, who committed rape, murder, and pillage while in the Central African Republic. Many praised the conviction as a strong deterring signal and a significant step in the development of international criminal law.

Thus, it came as a shock to many when the Appeals Chamber overturned Bemba’s conviction in a narrow 3-2 majority decision. However, some commentators, who  monitored the case and previously pointed out its shortcomings, were less surprised. At the heart of the discussion lie the questions of the pre-trial chamber’s role and the extent of review power the Appeals Chamber has or should have. The discussants seem to agree that the ultimate goal is a correct and just outcome. However, as the below analysis of the public discussion illustrates, the opinions differ extensively on how to get there.

The majority of commentators have criticized the appeal judgment as a destabilizing aberration of the ICC’s law and procedure. From this critical perspective, the Appeals Chamber majority naively engaged in judicial law making by taking the liberty to disregard well-established case law and “inexplicably chang[ing] the rules.”

One main point of controversy focuses on the confirmation of charges phase. According to the Appeals Chamber decision, the trial chamber should not have convicted Bemba of more criminal acts than what the pre-trial chamber confirmation of charges decision included. In the words of critics, the majority took an “absolutist approach to the confirmation process” with severe implications and consequences for current and future cases. The worry is that, to meet the new standard, future investigations by the Office of the Prosecutor (OTP) will have to be even longer and more expensive. Bringing a case to the pre-trial chamber that is not absolutely trial-ready, with all necessary types and quantities of evidence for a watertight case, will be too much of a risk. This way, the traditionally low hurdle of the confirmation of charges hearing will become the “mini-trial” that it was not designed to be, as pre-trial chamber judges have repeatedly insisted.

Commentators have also taken much note of the standard of review that they say the majority “erroneously” employed in its decision. This is, in the view of many, the “most troubling aspect” of the judgment. Until now, the generally accepted and followed approach was that an appeals chamber would only interfere where a trial chamber’s findings, based on the evidence presented to it, was “wholly unreasonable.” Save this extreme exception, an appeals chamber should defer to the factual findings of the trial chamber that examined the case and evidence, an approach also referred to as “margin of deference.” However, the majority in the Bemba appeal departed from this settled standard, holding that “it may interfere with the factual findings whenever the failure to interfere may occasion a miscarriage of justice.”

In short, the Appeals Chamber majority opined that it had the right to deviate from the conventional approach to allow itself to reweigh the facts of the case and possibly find doubt in the accused’s guilt. A move without which it could not have guaranteed that the original guilty verdict indeed met the burden required for a conviction while respecting fair trial standards. A number of critical voices contend, however, that the examination of the facts is the absolute prerogative of the trial chamber, the only organ that examines and interprets the totality of evidence.

The example of sexual and gender-based crimes is illustrative in this regard. Discussants have pointed out that these types of crimes “often require a comprehensive analysis of context,” which an appeals chamber is neither equipped for nor mandated to execute. Many had heralded the Bemba conviction for sexual and gender-based crimes, including against men, as historic and profoundly significant, especially from the victims’ perspective. Now, the fear is that the acquittal and new standard of review “increases the risk of impunity for crimes of sexual and gender-based violence.”

As a result, the majority’s move of selecting and reviewing parts and pieces of the body of evidence has been strongly condemned as “significant and unexplained,” “unwarranted and contrary to the aims of achieving justice,” and even a possibly “ idiosyncratic, opportunistic and ultimately unsuccessful attempt at judicial law-making.” Indeed, it has been argued that the change of rules by the majority is a “naïve and pointless act of formalism” and illustrates that “the judges […] resolutely refused to engage with the practical consequences of their findings on the scope of the charges, beyond the immediate implications for Mr Bemba’s appeal.”

Yet, whether or not the majority was indeed overly formalistic and theoretical in disregard of practical implications turns out to be a matter of perspective. In fact, the majority’s approach has been observed to actually be quite realistic and practical, at least concerning the command responsibility part of the case. Lawyers for the defense argued that the trial chamber should have specifically examined and concretely identified what Bemba, as a commander, should have done in concreto, instead of arriving at abstract findings regarding what a commander might or might not have done theoretically. A practical approach that apparently made sense to and convinced the majority in the Appeals Chamber. It arrived at the finding that the trial chamber in its examination of Bemba’s command responsibility should have focused more on the specific operative situation of him as a “remote commander” with “non-linear command” in a foreign country.

This reasoning illustrates the majority’s concern regarding whether the lower chamber arrived at the conviction in a just and fair manner. Indeed, it has been pointed out that the ICC’s Appeal Chamber is “very much the end of the road” for any accused. The Appeals Chamber is not like a national appeal court, in the sense that the ICC system does not offer an external review mechanism in the form of a highest or constitutional court or regional human rights tribunal, which an accused can turn to for arguments based on alleged violations of fair trial rights. This perspective sees the majority as taking a more activist approach in defense of the ideal of avoiding potential miscarriages of justice – in the present case and beyond. In the absence of an additional layer of appeal and review, the Appeals Chamber standard of review “needs to be designed in a way that protects the rights of the accused most efficiently.”

In addition to these procedural considerations, early discussions show that, despite the surprise felt by many when he was acquitted, the case against Bemba had a shadow looming over it from the very beginning.

The case started during the early years of the court. While the arrest dates back to 2008, the investigation had been ongoing for years prior to that. At the time, the OTP’s “light-touch” strategy reportedly focused on building cases quickly to help establish the institution as a whole. Criticisms include that the early investigations relied too heavily on international assistance, were not substantiated by the court’s own field investigations, and lacked substance. For the present case, this meant that the OTP, as one commentator paraphrased the critique, “did not do its job. The evidence was insufficient; the case theory was weak; they had the wrong mode of liability.” This spectrum of the commentaries thus draws attention to the idea that the majority, at least partially, disciplined the OTP for its early-years strategy.

However one looks at the above points of discussion, all analyses and interpretations concur that the Bemba acquittal, unexpected or not, represents a milestone in international criminal justice that has sent shock waves from The Hague into the world. It will have significant impact on ongoing and future investigations and trials at the ICC and beyond. Time will tell how prosecutors, lawyers, and chambers will handle the new standards introduced by the Appeals Chamber majority.

Fritz Streiff is a Dutch qualified lawyer and current litigation fellow at the Open Society Justice Initiative, where he is involved with strategic human rights litigation. Streiff has a particular focus on cases in the fields of international conflict and justice, anti-corruption, and fundamental human rights abuses. He holds a BA in international law, relations, and development from University College Utrecht, and an LLB and an LLM from Utrecht University School of Law. Follow him on Twitter @fritz_streiff.