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The Bemba et al. Case: Can States Impose Additional Punishments upon Convicted ICC Defendants?

The Appeals Chamber at the International Criminal Court (ICC) recently delivered its judgment on Jean-Pierre Bemba’s appeal against the resentencing decision for his conviction for witness tampering. The Appeals Chamber unanimously dismissed Bemba’s appeal and upheld the sentence imposed by Trial Chamber VII in September 2018. The judgment is significant because it considers novel and previously unexplored arguments as to whether Article 23 of the Rome Statute prevents states from imposing additional criminal punishments and civil sanctions upon individuals who have been convicted by the ICC. The Appeals Chamber’s decision – that Article 23 is no bar to the imposition of domestic civil sanctions – raises important questions about the ICC’s dual jurisdiction with national and regional courts and the extent to which states may impose criminal and civil punishments upon convicted ICC defendants.

In June 2018, the Appeals Chamber acquitted Bemba, a former vice-president in the Democratic Republic of Congo (DRC), of all charges of war crimes and crimes against humanity. However, in parallel proceedings, Bemba was convicted, along with members of his defense team, of offenses against the administration of justice pursuant to Article 70 of the Rome Statute. He was sentenced to one year of imprisonment and ordered to pay a fine of €300,000. After a challenge from the defense, the Appeals Chamber overruled this sentencing decision and remitted it back to Trial Chamber VII for resentencing.

On September 10, 2018, one week prior to Trial Chamber VII’s resentencing decision, Bemba filed an urgent request, asking Trial Chamber VII to “take steps to protect the right of Mr Bemba not to be pursued and punished twice for the same conduct in different jurisdictions.” Bemba argued that a decision by the DRC Constitutional Court, which held that Bemba was ineligible to hold public office in the DRC due to his conviction at the ICC for witness tampering, “constitutes a severe sanction, which falls outside the legal frameworks of the Statute, and the law in force at the time of the conduct. The decision to impose sanctions independently of the ICC therefore violates article 23 of the Statute,” which provides that “a person convicted by the Court may be punished only in accordance with this Statute.”

This marked the first time that Article 23 had been used as a basis to argue against the imposition of additional punishments by a state. In support of this argument, Bemba relied on the views of William Schabas, who has noted that defendants “may argue that civil sanctions such as … prohibition of holding office, constitute additional punishment and are therefore prohibited by article 23.”

Trial Chamber VII rejected [pdf] Bemba’s urgent request, finding that Article 23 “is principally concerned with punishments that this Court imposes on a convicted person. A loss of the right to seek office by a domestic court is beyond its ambit.” The Chamber emphasized that it is not appropriate for the ICC to intervene in domestic electoral proceedings. Bemba appealed, arguing that Trial Chamber VII’s interpretation of Article 23 was erroneous.

On November 27, 2019, the Appeals Chamber rejected Bemba’s appeal and affirmed Trial Chamber VII’s interpretation of Article 23. The Appeals Chamber found that the DRC Constitutional Court’s ruling “does not amount to a criminal proceeding” and therefore does not subject Mr Bemba to parallel criminal proceedings and punishments. Rather, the decision “is limited to the eligibility assessment of presidential candidates … without making any determinations as to Mr Bemba’s guilt.” The Appeals Chamber also affirmed the position of Trial Chamber VII that it is not the role of the ICC to intervene in domestic electoral proceedings.

The distinction drawn by the Appeals Chamber between a criminal punishment and a civil sanction is important. The DRC did not subject Bemba to subsequent criminal proceedings but imposed a civil penalty on Bemba as a consequence of his ICC conviction. This interpretation sits comfortably with the drafting history of Article 23, which shows that disqualification from holding political office was included in the draft list of penalties that the ICC may impose upon a convicted person but was ultimately removed from the final version of the Rome Statute due to concerns that political sanctions would be more appropriately dealt with by domestic authorities rather than the ICC.

Significantly, however, the judgment leaves open the possibility that Article 23 may prevent states from imposing additional criminal punishments upon defendants who have already been convicted by the ICC. This possibility has important consequences for how Article 23 relates to Article 20(2). Article 20(2) embodies the principle of ne bis in idem (often referred to as the prohibition on double jeopardy in common law jurisdictions), 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.” Article 20(2) only shields a defendant from a domestic trial if the characterization of the domestic charges is identical to the ICC charges and, therefore, provides very limited protection to ICC defendants. The possibility that Article 23 prevents subsequent criminal punishments may therefore expand the protection offered to ICC defendants beyond that provided by Article 20(2).

The decision also has implications for the principle of complementarity – the idea that the ICC’s jurisdiction is complementary, rather than supplementary, to that of states. Bemba is not the first ICC defendant to face subsequent punishment by domestic authorities in the aftermath of his ICC trial. Despite being acquitted, Mathieu Ngudjolo was refused asylum in the Netherlands and Switzerland on the basis of his ICC charges. Germain Katanga, who was tried alongside Ngudjolo, is still awaiting a separate trial in the DRC for domestic war crimes charges following the serving of his sentence for war crimes and crimes against humanity at the ICC. Bemba is also unlikely to be the last.

It remains to be seen whether Laurent Gbagbo, who was acquitted by the ICC in January 2019, will run for president in the 2020 Ivory Coast elections and whether there may be any legal attempts to prevent him from doing so. In light of the recent push towards “positive complementarity,” which encourages states to take a more active role in prosecuting international crimes under domestic law, issues relating to domestic punishment of those already tried by the ICC will continue to arise in the future. Furthermore, with the establishment of more regional and hybrid courts, such as the African Court of Justice and Human Rights and the Central African Republic’s Special Criminal Court, whose jurisdictions overlap with that of the ICC, the prospect of ICC defendants facing subsequent criminal or civil penalties will likely increase. Consequently, while the Appeals Chamber has closed the door on Article 23 prohibiting civil sanctions, it remains to be seen whether a domestic or regional court that imposes additional criminal sanctions upon an ICC defendant may contravene Article 23.

Adaena is an Australian lawyer interested in international human rights law and international criminal law. She holds a Juris Doctor from Melbourne Law School where she was the Editor-in-Chief of the Melbourne Journal of International Law. She also holds a Bachelor of Arts in French Studies and Italian Studies from the University of Western Australia. She interned in the Trial Chambers of the International Criminal Court and has previously worked as a Research Assistant at the Asia Pacific Center for Military Law.

The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

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