In this second opinion piece on the Bemba Appeals Judgment, Amnesty’s International Justice Team considers the majority’s finding that the conviction exceeded the scope of the charges confirmed pre-trial and its implications for future prosecutions of sexual and gender-based crimes.
Whilst the Appeals Chamber’s Judgment overturning the ICC’s only conviction of sexual violence crimes was based on a number of other grounds, it has been strongly criticised for finding that the Trial Chamber erred in convicting Jean-Pierre Bemba for criminal acts that had not been raised in the pre-trial confirmation of charges process. In our view, the Appeals Chamber had a strong legal and fair trial basis to rein in this practice. Nonetheless, there are legitimate concerns that, given the complexity of investigating sexual violence crimes, this may have a negative impact on the Office of the Prosecutor’s (OTP) ability to prosecute such crimes in the future. These challenges must be acknowledged and addressed.
What did the Appeals Chamber actually decide?
The majority concluded that the conviction exceeded the scope of the confirmed charges, in respect of those criminal acts that were introduced by the Prosecution after the confirmation of charges (see Judgment, paras. 98-119). Some have complained that – as a result of this finding – pre-trial chambers will have to necessarily confirm all individual criminal acts when deciding on the confirmation of charges and no other acts may be introduced at trial.
However, it is important to clarify that the majority did not exclude those criminal acts that were raised in the pre-trial process but were not explicitly confirmed by the Pre-Trial Chamber (PTC), as it was clear that the PTC did not intend to exclude them. It only excluded the additional criminal acts that were added after confirmation by the OTP “by means of disclosure and inclusion in auxiliary documents”. According to the majority, in the circumstances of this case this should not have been allowed. The proper way to introduce such acts was to seek an amendment of the charges.
A new, ‘revised’ procedure for the confirmation of charges?
In our view, the Appeals Chamber’s approach is not controversial. After all, the function of the confirmation of charges is to “commit the person (…) for trial on the charges as confirmed” (art. 61(7(a), emphasis added). Trials are decided beyond reasonable doubt on the individual criminal responsibility of the accused in relation to the facts and circumstances described in the charges (articles 66 and 74(2)) – not in the abstract, or in reference to “samples” of facts. On this basis, the Appeals Chamber had good reason to criticize the vague, broad formulation of the charges and reject the OTP’s arguments that the details of the alleged criminal acts “were merely “subsidiary facts” or “evidence”, “used in this case to establish the material fact””.
The majority of the Appeals Chamber’s approach is also in line with ICC case law since the confirmation of charges decision in this case. Other Chambers have similarly rejected the formulation of vague charges by the OTP (e.g. framing the charges as “including, but not limited to” the alleged criminal acts, or the use of “samples of facts”). The Lubanga Appeals Judgment emphasised:
the underlying criminal acts form an integral part of the charges against the accused, and sufficiently detailed information must be provided in order for the accused person to effectively defend him or herself against them.
In the Mbarushimana case, which “contained the broadest range of sexual and gender based crimes charged in any case before the ICC to date” the PTC in declining to confirm the charges harshly criticized the vague terms in which the charges were formulated by the OTP and expressed particular concern over this approach.
Although the Chamber’s Practice Manual indicates that the degree of specificity of the charges depends on the nature of the case, and cannot be established in abstracto, the flexibility that may be afforded to the OTP in defining the charges finds its limit in the accused’s right to be informed in detail of them. In this light, the majority was right to find that the overly broad formulation of the charges did not comply with Regulation 52(b) and did not “allow for a meaningful application of article 74(2) of the Statute”.
It is unfortunate that, in the Bemba case, this issue was not resolved until the Appeals Judgment. However, that is not a valid reason to ignore the error. The appellate stage provides the last opportunity to address any significant unfairness that an accused has suffered during the trial proceedings. For this reason we do not believe that this conclusion was “unfair to all parties” as some have argued: any uncertainty in the legal framework should be clarified in the interest of all parties, but should never be used to the detriment of the accused.
Challenges of adding new allegations of criminal acts after the confirmation of charges or the start of the trial
The majority’s decision reinforces, in line with the ICC legal framework, the need to define the charges in a clear, detailed and exhaustive manner. However, it is not uncommon, particularly in situations of conflict and crisis, that certain crimes (including sexual violence crimes) are not immediately identified for reasons beyond the OTP’s control. Regrettably, the procedures and rules on when new allegations can be introduced are far from clear.
Article 61(9) provides that the Prosecutor can seek the permission of the Pre-Trial Chamber to amend the charges after their confirmation and before the start of the trial. The Appeals Chamber decision implies that this process must be followed by the OTP in order to add allegations of further criminal acts that go to prove one or more of the elements of the crime charged. Regrettably, however, the majority decided to “leave open” the question whether “adding specific criminal acts after confirmation would in all circumstances require an amendment to the charges”. This is unsatisfactory as it leaves a sense of uncertainty looming over the confirmation of charges procedure and should be resolved without delay.
On the other hand, it is clear that further evidence of an existing factual allegation can be introduced by the OTP at a later stage, in order to further substantiate the charges presented. While ICC Chambers have stressed that ideally “investigations should be largely completed” by the time of confirmation, they can and do normally continue during trial proceedings, allowing the introduction of further elements of proof. This does not change because of this Judgment.
The absence of any express provisions and a plain reading of Article 61(9) appear to prevent a trial chamber from adding new allegations of criminal acts after the start of a trial. This interpretation is challenged in Judge Eboe-Osuji’s separate opinion to the Judgment; his arguments – somewhere in between de lege lata and de lege ferenda – surely deserve careful consideration. However, such interpretations should be considered with caution, in light of prejudice that such decisions may cause to the accused.
What does this mean for sexual violence crimes?
While there is nothing too surprising about the majority’s conclusion, there is no denying that the relative rigidity of the legal framework reflected in the decision presents significant challenges to the OTP’s investigation and prosecution of sexual violence crimes. Due to the social stigma and sensitivities that often prevent victims and witnesses from coming forward, the avenue of late additions to the charges will likely continue to be sought by the OTP, for reasons outside of its control, to ensure that victims have access to justice.
As set out in its landmark Policy Paper on Sexual and Gender-Based Crimes, the OTP is well aware of the complexities in securing evidence of sexual violence crimes which needs to be factored in from the very beginning of its work in a given situation. This indeed resonates in the OTP’s Strategic Plan in which the Office undertakes to be “as trial-ready as possible from the earliest phases of proceedings, (…) no later than the confirmation of the charges hearing”. The real challenge lies in the translation of these policies into practice.
Despite the fact that the ICC has yet to deliver justice to victims of sexual violence crimes, the strong commitment to address these crimes demonstrated by the OTP in recent years (such as its increasingly sophisticated charging strategies relating to allegations of sexual violence crimes in recent cases) gives good reason to hope that the challenges it faces can be addressed. The Bemba Appeals Judgment requires the OTP to further reassess its investigation and pre-trial strategies to address sexual violence crimes and possibly update its policies. It would therefore be good to see the OTP adopt a proactive approach towards strengthening its efforts in light of the decision. In particular, a number of the challenges could be addressed by: a greater investment of resources from the start of investigations dedicated to sexual violence crimes and outreach about its efforts; ensuring that the status of investigations in relation to sexual violence crimes is a key consideration in determining when to initiate cases; and prioritizing further investigations of sexual violence crimes when the commencement of the pre-trial process cannot wait, so that the Office can seek amendments to the charges as soon as possible.
In the field of international criminal justice, every case counts; the Bemba case in particular played a very important role in the public discourse on the prosecution of sexual violence crimes, which partly explains the controversy surrounding the outcome of the appeal. Indeed, it is a loss for the victims that there has so far been only one ICC case in relation to the crimes committed in CAR in 2002-2003. What is needed is a renewed commitment to further improve the prosecution of sexual violence crimes, given what we know about the social and psychological facts that can result in delayed disclosure of these particular crimes.