Justice in Extreme Cases Symposium: When the Pendulum Swings the Wrong Way–A Coherentist Approach to Preventing Miscarriages of Justice

[Adejoké Babington-Ashaye is an international law specialist with a specialization in international criminal law, human rights, and public international law. She is the Co-Editor and Co-Author of International Criminal Investigations: Law and Practice (2018).]

In 2018, by a narrow majority, the Appeals Chamber of the International Criminal Court (ICC) overturned Jean-Pierre Bemba’s conviction for crimes committed between October 2002 and March 2003 by Bemba’s Mouvement de Libération du Congo (MLC) troops in Central African Republic (CAR). The effect of the Appeals Chamber’s decision was essentially that these crimes, which included rape as a crime against humanity and war crime, had committed themselves. For those like me who had dedicated years of their lives to the investigation and prosecution of the MLC’s crimes in CAR and Bemba’s culpability as a commander, the decision was shocking and utterly disappointing for a multitude of reasons. Notably, the Appeals Chamber’s creation of a new standard of review and its decision to “interfere with the factual findings of the first-instance chamber whenever the failure to interfere occasion a miscarriage of justice,” in fact led to a miscarriage of justice for the victims of these “phantom” crimes.

The decision of the Appeals Chamber has been commented upon and dissected on various themes including that its arguably gendered assessment of questions of liability increases “the risk of impunity for SGBV crimes.” It is in Darryl Robinson’s book, Justice in Extreme Cases, that we get a glimpse of a different basis of analysis – that of the encounter between criminal law theory and international criminal law. Specifically, Robinson explores the deontic constraints of a system of justice and argues for a humanist and coherentist approach to international criminal justice. Let us break this down.

Robinson observes that scholarship and jurisprudence in international criminal law have focused on source-based and teleological reasoning but have “often trailed in the deontic dimension,” which is centred on “the principled constraints arising from respect for the personhood or agency of accused persons as moral agents.” In other words, a deontic approach to justice considers the fairness of punishment, and it is Robinson’s argument that a “richer conception of ‘justice’ includes facilitating prosecutions, but only where the deontic question of fairness of punishment has been answered affirmatively.” At the same time, caution must be taken to avoid a distortion of reasoning. Robinson argues that there is a danger that judges “aiming to show that they are setting the highest standards” may adopt a distorted and strict deontic approach to overcorrect any perception of unfairness to the accused. Despite the purest of intentions, such overcorrection could, in Robinson’s view, contribute to the collapse of cases, the denial of justice for victims, and could undermine the aims of the justice system. A possible example of the pendulum swing to overcorrection is the Bemba case, and Robinson gives us a glimpse of some ways in which the Appeals Chamber adopted a conservative approach effectively negating justice.

An illustration which I believe is noteworthy is the Appeals Chamber’s assessment of command responsibility, particularly the failure to take measures and the liability of remote commanders. The Appeals Chamber’s decision to approach the Trial Chamber’s factual findings “with extreme caution,” resulted in a decision that can be summarized as follows. First, despite the lack of evidence that Mr. Bemba took any measure to address the widespread rapes, the Appeals Chamber nevertheless concluded that he had taken all the reasonable measures available to him at the time and that a commander is not required to “take each and every possible measure at his or her disposal.”(169) As Robinson rightly observes, it “is hard to see how taking no measures at all in relation to most of the crimes could, in any sense, qualify as taking ‘all necessary and reasonable measures.’”

Second, the Appeals Chamber lowered expectations of remote commanders finding that the Trial Chamber paid insufficient attention to the fact that the MLC troops were based in a foreign country with the “attendant difficulties on Mr Bemba’s ability, as a remote commander, to take measures.” (170). Where Robinson and I differ slightly is on whether it is reasonable to expect less of a remote commander. Robinson states that, at first glance, it “seems entirely right that we must expect less of a remote commander, because it is more difficult for them to get information and to exercise control.” I would phrase this slightly differently. It is reasonable to expect less of a remote commander if it is more difficult for him/her to get information and exercise control. In my view, a commander’s remoteness from his/her troops does not automatically mean a reduction in the ability to exercise control or obtain the requisite information to take the action required of the commander. A lack of control or means of communication must be demonstrated. As Robinson rightly observes, if a person assembles and sends an armed group to another country, “can the person then excuse him- or herself on the grounds that the force is now in another country and difficult to control?” We both resoundedly say no, they cannot. To Robinson, the deontic root of command responsibility places a special obligation on military commanders to maintain close control of their troops and they cannot excuse themselves on the basis that their troops are now in the foreign land to which they were sent.

So, what is the solution for the overcorrection which has led, in my view, to a gross miscarriage of justice in the Bemba case? How do we swing the pendulum back to a place where the appropriate balance is made? This is where Robinson’s humanist and coherentist accounts come to play. Rooted in compassion and respect for humanity, such accounts would ensure a holistic approach to justice. Where the problem facing international criminal law is the need for more careful deontic reasoning, the solution is not to become overly conservative. Rather, what is needed is an approach that is flexible and does not promise compliance with fundamental principles on one hand and then contravene the same principles on the other.

While I wish the book delved more deeply into an application of the humanist and coherentist account to the Appeals Chamber’s decision in the Bemba case, Robinson’s deontic account is more detailed that what currently exists, and his proposed solution opens the door for a balanced and more human-centered approach to justice that considers the impact on all stakeholders including the victims of the atrocities.