The Bemba Appeals Judgment warrants better investigations and fair trials – not efforts to discredit the decision
Amnesty International’s International Justice Team provides some initial reflections on the most controversial aspects of the Judgment and challenges a number of criticisms.
Reading the reactions and commentaries issued last week following the Appeals Chamber’s Judgment you could be forgiven for thinking that the sky had just fallen in on the ICC. A statement by the Prosecutor and opinion pieces published by two advisers (each writing in their personal capacities) and a former staff member of her Office (see here, here and here) argue that the 3:2 majority decision misinterpreted and misapplied the law in deciding to overturn Jean Pierre Bemba’s conviction, and in some cases go as far as attacking the legitimacy of the decision. Some of these commentators contend that the majority’s approach makes it difficult or almost impossible for the Office of the Prosecutor (OTP) to hold commanders responsible for crimes committed by their subordinates.
Of course it is perfectly legitimate for the OTP, other parties and participants to a case and observers including academics, and even Amnesty International, to disagree with a chamber’s analysis of the law. On complex and novel issues, such as command responsibility, such debates may enrich and even advance the development of the law. However, where criticism by parties and participants to a case extend to directly or implicitly challenge the authority or legitimacy of the judicial decision-making, it enters dangerous territory. As illustrated by the President of the ICC’s statement last week calling for post-judgment statements to respect the independence of the judiciary, some of the comments – especially those challenging the authority of the 3:2 decision – raise concern. We can only imagine the pressure the OTP feels to deliver convictions, but challenging the authority of the judiciary will only weaken the Court.
Amnesty International’s International Justice Team is analysing the Judgment carefully with a view to publishing detailed opinion pieces on key issues over the next weeks. As an initial comment, however, while we do not agree with the majority of the Appeals Chamber on all issues, we do not share many of the criticisms of the decision so far.
On the contrary, the majority of the Appeals Chamber confronts and seeks to address a number of concerning practices by the Pre-Trial Chamber and the Trial Chamber, which undermined the fairness of this trial and threaten the fairness of other ICC trials. Some of its findings highlight the need for the OTP to conduct more thorough and effective investigations before initiating cases and to define its cases clearly at the outset. A retrial was ruled out given the excessive length of the proceedings – bearing in mind the problems arising in the MICT’s retrial of the Stanišić and Simatović case (which we will comment on in the next weeks) this was probably a fair decision.
A primary criticism of the Appeals Judgment has been that the majority departed from the traditional standard of appellate review on alleged factual errors and failed to give sufficient deference to the Trial Chamber’s findings. However, our reading of the Judgment suggests that, in line with the traditional approach, the majority considered alleged errors of fact, “to determine whether a reasonable trial chamber could have been satisfied beyond reasonable doubt as to the finding in question.”
As to whether the majority of the Appeals Chamber should have shown more deference to the Trial Chamber’s findings of fact, it is important to note that the majority identified serious flaws in the Trial Chamber’s findings of fact that led to the conviction. The majority identified errors stemming from the Trial Chamber’s failure to determine the admissibility of evidence; support its findings of fact by identifying the evidence that it relied upon; and explain the reasons for its analysis of the evidence. In these circumstances, the majority was justified to exercise “extreme caution” in deferring to the trial Judgment and to conclude that when it identified “findings that can reasonably be called into doubt, it must overturn them”.
Additional criticism has focussed on the majority’s finding that the conviction exceeded the charges by addressing certain acts of murder, rape and pillage that had not been raised during the confirmation of charges process. The Prosecutor has stated that this “may render it difficult to prosecute future cases entailing extensive campaigns of victimisation”. Perhaps the Prosecutor is correct and we have some sympathy that the law on this vitally important issue remains uncertain. However, any additional difficulty arising for the OTP at the pre-trial stage must be weighed against the difficulties imposed on the accused in preparing a defence based on vague and incomplete charges. After all the Prosecutor has the burden to prove guilt beyond a reasonable doubt and the accused has a right to be informed promptly and in detail of the nature, cause and content of the charges and to adequate time and facilities for the preparation of the defence.
In our view the majority have taken an important step in this case towards clarifying the scope and requirements of the pre-trial process. If that makes the work of the OTP more difficult, then so be it. Regrettably, in doing so the majority sidestepped the equally important issue of whether the Trial Chamber can amend the charges by adding new facts to include criminal acts that were not specified in the confirmation of charges after the start of the trial and, if so, which criteria must be applied. Judge Eboe-Osuji makes an interesting contribution on this important point in his separate opinion, which we intend to comment on in due course.
While the Prosecutor clearly sees these clarifications regarding the requirements of charging as a challenge, in our view it also presents an opportunity to strengthen the OTP’s prosecutorial performance and record if it leads to more thorough investigations before cases are commenced and a clearer presentation of its case from the outset. Moreover, defining the prosecution’s cases more clearly at the pre-trial stage would ensure greater clarity on which victims are eligible to participate in the proceedings.
Command responsibility as defined in Article 28 of the Statute was the most novel issue in this case and ultimately proved to be the key issue in overturning the conviction. Our initial analysis tends to agree with many criticisms that the Appeals Chamber narrowly applied the requirement that a commander must fail “to take all necessary and reasonable measures within his or her power to prevent and repress their commission or to submit the matter to the competent authorities for investigation and prosecution”. Nonetheless, we recognize the challenges of applying the “all necessary and reasonable measures” standard fairly and reasonably in the context of complex conflicts, especially where the commander is located remotely. As Amnesty International submitted an amicus curiae brief on this issue in this case, we are conducting a detailed analysis of the decision and will comment further on this issue shortly.
Which brings us to our last point. The OTP claims that it “has stood in solidarity with the victims in CAR for over 10 years.” But ‘solidarity‘ does not address the serious shortcomings in prosecutorial strategy arising in this case and the Central African Republic situation that have contributed to the lack of redress for victims. We hope that the OTP will draw important lessons from these failures and seek to remedy them, including its flawed decision to pursue justice against just one individual in response to the large-scale crimes. Indeed, an effective display of solidarity in this case should include an express commitment to urgently pursue further investigations and new cases in this situation.