Why Bemba’s Conviction Was Not a “Very Good Day” for the OTP (Updated)

by Kevin Jon Heller

As readers probably know by now, the ICC convicted Jean-Pierre Bemba yesterday of various war crimes and crimes against humanity, including rape as both a war crime and crime against humanity. Commentators are praising the conviction as landmark with regard to sexual violence — against both women and men. Here, for example, is Niamh Hayes:

Today is a very good day for the Office of the Prosecutor. This afternoon, Jean Pierre Bemba Gombo was convicted of rape as a crime against humanity and a war crime, due to his failure as a military commander to prevent or punish such crimes committed by MLC troops under his effective control. This represents the first ever conviction for the crime of rape at the International Criminal Court. Although rape was charged in the cases against Germain Katanga and Mathieu Ngudjolo, and although the Trial Chamber ultimately concluded that the alleged acts of sexual violence had in fact taken place, Katanga and Ngudjolo’s individual criminal responsibility for those crimes were not proven to the satisfaction of the judges and they were both acquitted on those counts. Bemba is not only the first defendant to be convicted of rape as a war crime or crime against humanity at the ICC, he is also the first person to have been held individually responsible for violations of international criminal law committed during the 2002-2003 coup in the Central African Republic.

It is even more significant to realise that the Bemba judgement represents the first time in the history of international criminal law that sexual violence against men has been charged as the crime of rape (as opposed to crimes of torture, outrages upon personal dignity or cruel treatment) or that a defendant has been convicted of rape based on the testimony of male victims. The Bemba case will go down in history as a vital precedent on that basis alone, but it also represents a hugely important step in the ICC’s broader efforts to provide greater accountability for sexual violence crimes. Prosecutor Bensouda today reiterated her personal and professional commitment to that goal: “[w]here some may want to draw a veil over these crimes I, as Prosecutor, must and will continue to draw a line under them.” The inclusion of further allegations of male rape in the Ntaganda case and extensive allegations of sexual violence against civilians in the Ongwen case are important and welcome developments in that regard.

I agree with Niamh that the decision is a landmark in terms of sexual violence — but I would take strong issue with the idea that Bemba’s conviction represents a “very good day” for the OTP. On the contrary, the Trial Chamber’s judgment illustrates that the OTP continues to have problems developing its cases without the judges’ help. As Niamh notes, Bemba is the first ICC defendant convicted on the basis of superior responsibility. But she fails to point out a critical fact about the trial: the OTP alleged that Bemba was responsible for the various war crimes and crimes against humanity as a superior only because the Pre-Trial Chamber told it to do so. The OTP’s original theory of the case was that Bemba was responsible for those crimes solely as an indirect co-perpetrator. The PTC, however, disagreed: because the evidence the OTP presented at the confirmation hearing indicated that Bemba was most likely responsible for the crimes as a superior, not as an indirect co-perpetrator, the PTC adjourned the hearing and requested (read: instructed) the OTP to amend the charges to include superior responsibility. The OTP did so — but it continued to insist that Bemba was primarily responsible for the charges as an indirect co-perpetrator. Here is the relevant paragraph from its Amended Document Containing the Charges:

57. Primarily, BEMBA is individually criminally responsible pursuant to Article 25(3)(a) of the Rome Statute, for the crimes against humanity and war crimes referred to in Articles 7 and 8 of the Statute, as described in this Amended DCC, which he committed jointly with Patassé through MLC troops. Alternatively 1 , BEMBA is criminally responsible by virtue of his superior-subordinate relationship with MLC troops pursuant to Article 28 (a), or in the alternative Article 28(b), of the Statute, for crimes against humanity and war crimes, as described in this Amended DCC and enumerated in Counts 1 to 8, which were committed by MLC troops under his effective command, or authority, and control as a result of his failure to exercise control properly over these forces.

The OTP should be grateful to the PTC for its “request,” because the PTC ultimately refused to confirm Bemba’s potential responsibility as an indirect co-perpetrator. Had the PTC not intervened, the case would not even have made it past the confirmation stage.

So, to summarise: The OTP had a theory of the case. The PTC told it to rethink that theory. The OTP did so — reluctantly. The PTC rejected the OTP’s preferred theory. And the TC ultimately convicted Bemba on the theory first proposed by the PTC.

Bemba’s conviction clearly represents a very good day in the struggle against sexual violence. But it hardly represents  a very good day for the OTP. On the contrary, it actually represents a rather stunning rebuke to the OTP’s ability to develop its cases without the judges’ help.

NOTE: I have updated the post in light of an email from Alex Whiting pointing out that the PTC refused to confirm indirect co-perpetration. My thanks to him for the correction.


11 Responses

  1. It is rather concerning that both the Pre-Trial Chamber and the Trial Chamber seem to be acting as prosecutors, not judges. It is also concerning that they completely ignored the arguments of the prosecutors and instead developed their own theory of the case, bringing into question how fair the trial can said to have been and whether the Chamber had a pre-conceived outcome in mind.

  2. Hi Kevin

    Thanks for the interesting perspective. I wonder, though, whether one could put this down to the fact that we are still in the start-up phase of the ICC (in terms of the quantity of jurisprudence available, particularly in terms of judgments) and therefore the casuistic evolution of the case law on modes of participation is yet to mature sufficiently for the Prosecutor to get an accurate sense of the most appropriate modes that are likely to succeed on the basis of particular fact patterns. Presumably, once the jurisprudence matures, the Prosecutor will be better equipped to construct more accurate case theories? In the meantime, I imagine the OTP will be extremely satisfied with the verdict in this case…

  3. Hi Barrie,

    Shouldn’t we be a bit tired by the “ICC is new” excuse at this point? I simply find it troubling that the PTC had to say, “oh, by the way OTP, your own evidence better supports superior responsibility than indirect co-perpetration.” And that, in response, the OTP still tried to privilege indirect co-perpetration.

  4. Mistakes indeed , can always happen . Even a judge can commit mistake ( see for example , in the case of Omar Al Bashir , where the pre trial judge , urged south Africa to arrest Omar Al Bashir , in the AU summit , stating that : The SC resolution ( 1593 ) implicitly striped of Al Bashir from his immunity as head of state , while , it was him ( the judge ) who had done it , and explicitly done , all , while issuing arrest warrants , while the SC , can never do such think whatsoever , it is a judicial discretion ) .

    The above mentioned mistake, was a ” novel ” one, lacking jurisprudence and clear provisions in the Rome statute , but , the one described in the post, should not happen!! There is nothing novel or too illusive in ” vicarious liability ” , yet :

    What counts is the lesson to be drawn here:

    A prosecutor , can never be granted , independent power , in relation to a judge discretion ( while working at the same judiciary of course ) . It does illustrate , that futile article in the Rome statute (53 (3 ) (a ) ) dictating the judge , to request the prosecutor , to reconsider his decision . A judge , must prevail , always prevail !! A judge doesn’t recommend to a prosecutor to reconsider his decision (let alone, after reviewing the whole material and should reach a final decision, while needing to grant ” go ahead ” to a full investigation).

    The prosecutor independence , is in relation to political pressures he may face for example , yet not in relation to a judge having power on him .


  5. Hi Kevin,

    Interestingly, the prosecution’s closing submissions were entirely focused on command responsibility under Art 28: https://www.icc-cpi.int/iccdocs/doc/doc2194009.pdf. It seems like the OTP itself moved away from the indirect co-perpetration mode of liability over the course of the trial. Strange that it remained in the DCC, but hardly a crushing defeat for the OTP.

    All the best,

  6. Yvonne,

    I didn’t say it was a crushing defeat for the OTP. And yes, the OTP did have to prove superior responsibility at trial. (Without the need for legal recharacterization, fortunately — the topic of a subsequent post.) But it’s still troubling that the PTC had to essentially order the OTP to pursue superior responsibility in the first place. That’s what I mean by not a very good day.

  7. Hi Kevin,

    I agree with you generally on the OTP needing help to get convictions. But I am a little surprised by your affirmation that the TC ignored the prosecutor. As fat as I can recall, charges were only confirmed on 28. So, save for a regulation 55 trick, article 25(3)(a) was not even on the table for the trial, whatever the Prosecutor said in his amended DCC. In other words, the TC was bound by the PTC decision, that’s the whole point of tje confirmation of charges decision, so nothing surprising there.

  8. Dov,

    Absolutely right. I amended the post in response to a comment by Alex Whiting.

  9. I’d certainly call it a good day for the OTP, if a rather embarrassing one. The OTP’s goals were achieved, albeit in much the same way Duncan’s goals were achieved in the (must-read) Canadian case of R. v. Duncan (https://www.canlii.org/en/on/oncj/doc/2013/2013oncj160/2013oncj160.html).

    Very good day? Probably not. Good day? Probably.

  10. CT,

    To be sure, a conviction is a conviction — and obviously better than an acquittal. But there is still something wrong with how the OTP develops cases. So call it a very good day for justice, a very good day for the struggle against sexual violence, even a very good day for the ICC. But not for the OTP.

  11. Hi Kevin,

    Thanks for the post. I’m in the middle of writing a follow-up that will go into some of the pre-trial issues in the case a bit more. You’re right to point out that going for command responsibility was more the Pre-Trial Chamber’s call than the Prosecution, but it’s worth remembering that the Pre-Trial Chamber also recharacterised and effectively removed additional charges of torture based on sexual violence during the confirmation process, so no-one really emerges with full credit. I haven’t exactly been their biggest cheerleader over the last few years, but I think it’s fair enough to say that Monday was a “good day'” for the OTP – people tend to enjoy a win, especially when they’re pretty rare. You think it’s a “stunning rebuke for the OTP’s ability to develop its own case”‘, which it certainly was back when that decision was handed down in 2009. Why don’t we split the difference and call it a good day for Bensouda and (yet another) stunning rebuke in retrospect for Ocampo?



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